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0 | Respondent was arrested in the front yard of a house in which he lived along with a Mrs. Graff (daughter of the lessees) and others. The arresting officers, who did not ask him which room he occupied or whether he would consent to a search, were then admitted to the house by Mrs. Graff and, with her consent but without a warrant, searched the house, including a bedroom, which Mrs. Graff told them was jointly occupied by respondent and herself, and in a closet of which the officers found and seized money. Respondent was indicted for bank robbery, and moved to suppress the seized money as evidence. The District Court held that where consent by a third person is relied upon as justification for a search, the Government must show, inter alia, not only that it reasonably appeared to the officers that the person had authority to consent, but also that the person had actual authority to permit the search, and that the Government had not satisfactorily proved that Mrs. Graff had such authority. Although Mrs. Graff's statements to the officers that she and respondent occupied the same bedroom were deemed admissible to prove the officers' good-faith belief, they were held to be inadmissible extrajudicial statements to prove the truth of the facts therein averred, and the same was held to be true of statements by both Mrs. Graff and respondent that they were married, which was not the case. The Court of Appeals affirmed. Held: 1. When the prosecution seeks to justify a warrantless search by proof of voluntary consent it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. Pp. 169-172. 2. It was error to exclude from evidence at the suppression hearings Mrs. Graff's out-of-court statements respecting the joint occupancy of the bedroom, as well as the evidence that both respondent and Mrs. Graff had represented themselves as husband and wife. Pp. 172-177. (a) There is no automatic rule against receiving hearsay evidence in suppression hearings (where the trial court itself can accord such evidence such weight as it deems desirable), and under the circumstances here, where the District Court was satisfied that Mrs. Graff's out-of-court statements had in fact been made and nothing in the record raised doubts about their truthfulness, there was no apparent reason to exclude the declarations in the course of resolving the issues raised at the suppression hearings. Pp. 172-176. (b) Mrs. Graff's statements were against her penal interest, since extramarital cohabitation is a state crime. Thus they carried their own indicia of reliability and should have been admitted as evidence at the suppression hearings, even if they would not have been admissible at respondent's trial. Pp. 176-177. 3. Although, given the admissibility of the excluded statements, the Government apparently sustained its burden of proof as to Mrs. Graff's authority to consent to the search, the District Court should reconsider the sufficiency of the evidence in light of this Court's opinion. Pp. 177-178. 476 F.2d 1083, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 178. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 188.Deputy Solicitor General Wallace argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Petersen, Harry R. Sachse, Allan A. Tuttle, and Philip R. Monahan.Donald S. Eisenberg, by appointment of the Court, , argued the cause and filed a brief for respondent.MR. JUSTICE WHITE delivered the opinion of the Court.In Schneckloth v. Bustamonte, , the Court reaffirmed the principle that the search of property, without warrant and without probable cause, but with proper consent voluntarily given, is valid under the Fourth Amendment. The question now before us is whether the evidence presented by the United States with respect to the voluntary consent of a third party to search the living quarters of the respondent was legally sufficient to render the seized materials admissible in evidence at the respondent's criminal trial.IRespondent Matlock was indicted in February 1971 for the robbery of a federally insured bank in Wisconsin, in violation of 18 U.S.C. 2113. A week later, he filed a motion to suppress evidence seized by law enforcement officers from a home in the town of Pardeeville, Wisconsin, in which he had been living. Suppression hearings followed. As found by the District Court, the facts were that respondent was arrested in the yard in front of the Pardeeville home on November 12, 1970. The home was leased from the owner by Mr. and Mrs. Marshall. Living in the home were Mrs. Marshall, several of her children, including her daughter Mrs. Gayle Graff, Gayle's three-year-old son, and respondent. Although the officers were aware at the time of the arrest that respondent lived in the house, they did not ask him which room he occupied or whether he would consent to a search. Three of the arresting officers went to the door of the house and were admitted by Mrs. Graff, who was dressed in a robe and was holding her son in her arms. The officers told her they were looking for money and a gun and asked if they could search the house. Although denied by Mrs. Graff at the suppression hearings, it was found that she consented voluntarily to the search of the house, including the east bedroom on the second floor which she said was jointly occupied by Matlock and herself. The east bedroom was searched and the evidence at issue here, $4,995 in cash, was found in a diaper bag in the only closet in the room.1 The issue came to be whether Mrs. Graff's relationship to the east bedroom was sufficient to make her consent to the search valid against respondent Matlock.The District Court ruled that before the seized evidence could be admitted at trial the Government had to prove, first, that it reasonably appeared to the searching officers "just prior to the search, that facts exist which will render the consenter's consent binding on the putative defendant," and, second, that "just prior to the search, facts do exist which render the consenter's consent binding on the putative defendant." There was no requirement that express permission from respondent to Mrs. Graff to allow the officers to search be shown; it was sufficient to show her authority to consent in her own right, by reason of her relationship to the premises. The first requirement was held satisfied because of respondent's presence in the yard of the house at the time of his arrest, because of Gayle Graff's residence in the house for some time and her presence in the house just prior to the search, and because of her statement to the officers that she and the respondent occupied the east bedroom.2 The District Court concluded, however, that the Government had failed to satisfy the second requirement and had not satisfactorily proved Mrs. Graff's actual authority to consent to the search. To arrive at this result, the District Court held that although Gayle Graff's statements to the officers that she and the respondent occupied the east bedroom were admissible to prove the good-faith belief of the officers, they were nevertheless extrajudicial statements inadmissible to prove the truth of the facts therein averred. The same was true of Mrs. Graff's additional statements to the officers later on November 12 that she and the respondent had been sleeping together in the east bedroom regularly, including the early morning of November 12, and that she and respondent shared the use of a dresser in the room. There was also testimony that both Gayle Graff and respondent, at various times and places and to various persons, had made statements that they were wife and husband. These statements were deemed inadmissible to prove that respondent and Gayle Graff were married, which they were not, or that they were sleeping together as a husband and wife might be expected to do. Having excluded these declarations, the District Court then concluded that the remaining evidence was insufficient to prove "to a reasonable certainty, by the greater weight of the credible evidence, that at the time of the search, and for some period of reasonable length theretofore, Gayle Graff and the defendant were living together in the east bedroom." The remaining evidence, briefly stated, was that Mrs. Graff and respondent had lived together in a one-bedroom apartment in Florida from April to August 1970; that they lived at the Marshall home in Pardeeville from August to November 12, 1970; that they were several times seen going up or down stairs in the house together; and that the east bedroom, which respondent was shown to have rented from Mr. and Mrs. Marshall, contained evidence that it was also lived in by a man and a woman.3 The District Court thought these items of evidence created an "inference" or at least a "mild inference" that respondent and Gayle Graff at times slept together in the east bedroom, but it deemed them insufficient to satisfy the Government's burden of proof. The District Court also rejected the Government's claim that it was required to prove only that at the time of the search the officers could reasonably have concluded that Gayle Graff's relationship to the east bedroom was sufficient to make her consent binding on respondent.The Court of Appeals affirmed the judgment of the District Court in all respects. 476 F.2d 1083. We granted certiorari, , and now reverse the Court of Appeals.IIIt has been assumed by the parties and the courts below that the voluntary consent of any joint occupant of a residence to search the premises jointly occupied is valid against the co-occupant, permitting evidence discovered in the search to be used against him at a criminal trial. This basic proposition was accepted by the Seventh Circuit in this case, 476 F.2d, at 1086, as it had been in prior cases,4 and has generally been applied in similar circumstances by other courts of appeals,5 and various state courts.6 This Court left open, in Amos v. United States, , the question whether a wife's permission to search the residence in which she lived with her husband could "waive his constitutional rights," but more recent authority here clearly indicates that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. In Frazier v. Cupp, , the Court "dismissed rather quickly" the contention that the consent of the petitioner's cousin to the search of a duffel bag, which was being used jointly by both men and had been left in the cousin's home, would not justify the seizure of petitioner's clothing found inside; joint use of the bag rendered the cousin's authority to consent to its search clear. Indeed, the Court was unwilling to engage in the "metaphysical subtleties" raised by Frazier's claim that his cousin only had permission to use one compartment within the bag. By allowing the cousin the use of the bag, and by leaving it in his house, Frazier was held to have assumed the risk that his cousin would allow someone else to look inside. Ibid. More generally, in Schneckloth v. Bustamonte, 412 U.S., at 245-246, we noted that our prior recognition of the constitutional validity of "third party consent" searches in cases like Frazier and Coolidge v. New Hampshire, , supported the view that a consent search is fundamentally different in nature from the waiver of a trial right. These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.7 The issue now before us is whether the Government made the requisite showing in this case.IIIThe District Court excluded from evidence at the suppression hearings, as inadmissible hearsay, the out-of-court statements of Mrs. Graff with respect to her and respondent's joint occupancy and use of the east bedroom, as well as the evidence that both respondent and Mrs. Graff at various times and to various persons had represented themselves as husband and wife. The Court of Appeals affirmed the ruling. Both courts were in error.As an initial matter we fail to understand why, on any approach to the case, the out-of-court representations of respondent himself that he and Gayle Graff were husband and wife were considered to be inadmissible against him. Whether or not Mrs. Graff's statements were hearsay, the respondent's own out-of-court admissions would surmount all objections based on the hearsay rule both at the suppression hearings and at the trial itself, and would be admissible for whatever inferences the trial judge could reasonably draw concerning joint occupancy of the east bedroom. See 4 J. Wigmore, Evidence 1048 (J. Chadbourn rev. 1972); C. McCormick, Evidence 262 (2d ed. 1972).8 As for Mrs. Graff's statements to the searching officers, it should be recalled that the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.9 In Brinegar v. United States, , it was objected that hearsay had been used at the hearing on a challenge to the admissibility of evidence seized when a car was searched and that other evidence used at the hearing was held inadmissible at the trial itself. The Court sustained the trial court's rulings. It distinguished between the rules applicable to proceedings to determine probable cause for arrest and search and those governing the criminal trial itself - "There is a large difference between the two things to be proved, as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them." Id., at 173. That certain evidence was admitted in preliminary proceedings but excluded at the trial - and the Court thought both rulings proper - was thought merely to "illustrate the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt." Id., at 174.That the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions was confirmed on November 20, 1972, when the Court transmitted to Congress the proposed Federal Rules of Evidence. Rule 104 (a) provides that preliminary questions concerning admissibility are matters for the judge and that in performing this function he is not bound by the Rules of Evidence except those with respect to privileges.10 Essentially the same language on the scope of the proposed Rules is repeated in Rule 1101 (d) (1).11 The Rules in this respect reflect the general views of various authorities on evidence. 5 J. Wigmore, Evidence 1385 (3d ed. 1940); C. McCormick, Evidence 53, p. 122 n. 91 (2d ed. 1972). See also Maguire & Epstein, Rules of Evidence in Preliminary Controversies as to Admissibility, 36 Yale L. J. 1101 (1927).Search warrants are repeatedly issued on ex parte affidavits containing out-of-court statements of identified and unidentified persons. United States v. Ventresca, . An arrest and search without a warrant were involved in McCray v. Illinois, . At the initial suppression hearing, the police proved probable cause for the arrest by testifying to the out-of-court statements of an unidentified informer. The Government would have been obligated to produce the informer and to put him on the stand had it wanted to use his testimony at defendant's trial, but we sustained the use of his out-of-court statements at the suppression hearing, as well as the Government's refusal to identify him. In the course of the opinion, we specifically rejected the claim that defendant's right to confrontation under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment had in any way been violated. We also made clear that there was no contrary rule governing proceedings in the federal courts.There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel.12 However that may be, certainly there should be no automatic rule against the reception of hearsay evidence in such proceedings, and it seems equally clear to us that the trial judge should not have excluded Mrs. Graff's statements in the circumstances present here.In the first place, the court was quite satisfied that the statements had in fact been made. Second, there is nothing in the record to raise serious doubts about the truthfulness of the statements themselves. Mrs. Graff harbored no hostility or bias against respondent that might call her statements into question. Indeed, she testified on his behalf at the suppression hearings. Mrs. Graff responded to inquiry at the time of the search that she and respondent occupied the east bedroom together. A few minutes later, having led the officers to the bedroom, she stated that she and respondent shared the one dresser in the room and that the woman's clothing in the room was hers. Later the same day, she stated to the officers that she and respondent had slept together regularly in the room, including the early morning of that very day. These statements were consistent with one another. They were also corroborated by other evidence received at the suppression hearings: Mrs. Graff and respondent had lived together in Florida for several months immediately prior to coming to Wisconsin, where they lived in the house in question and where they were seen going upstairs together in the evening; respondent was the tenant of the east bedroom and that room bore every evidence that it was also occupied by a woman; respondent indicated in prior statements to various people that he and Mrs. Graff were husband and wife. Under these circumstances there was no apparent reason for the judge to distrust the evidence and to exclude Mrs. Graff's declarations from his own consideration for whatever they might be worth in resolving, one way or another, the issues raised at the suppression hearings.If there is remaining doubt about the matter, it should be dispelled by another consideration: cohabitation out of wedlock would not seem to be a relationship that one would falsely confess. Respondent and Gayle Graff were not married, and cohabitation out of wedlock is a crime in the State of Wisconsin.13 Mrs. Graff's statements were against her penal interest and they carried their own indicia of reliability. This was sufficient in itself, we think, to warrant admitting them to evidence for consideration by the trial judge. This is the case even if they would be inadmissible hearsay at respondent's trial either because statements against penal interest are to be excluded under Donnelly v. United States, , or because, if Rule 804 (b) (4) of the proposed Federal Rules of Evidence becomes the law, such declarations would be admissible only if the declarant is unavailable at the time of the trial.Finally, we note that Mrs. Graff was a witness for the respondent at the suppression hearings. As such, she was available for cross-examination, and the risk of prejudice, if there was any, from the use of hearsay was reduced. Indeed, she entirely denied that she either gave consent or made the November 12 statements to the officers that the District Court excluded from evidence. When asked whether in fact she and respondent had lived together, she claimed her privilege against self-incrimination and declined to answer.IVIt appears to us, given the admissibility of Mrs. Graff's and respondent's out-of-court statements, that the Government sustained its burden of proving by the preponderance of the evidence that Mrs. Graff's voluntary consent to search the east bedroom was legally sufficient to warrant admitting into evidence the $4,995 found in the diaper bag.14 But we prefer that the District Court first reconsider the sufficiency of the evidence in the light of this decision and opinion. The judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals with directions to remand the case to the District Court for further proceedings consistent with this opinion. So ordered. |
8 | In an action brought by a trustee in New York state courts for a construction of the indenture and for an accounting, the Alien Property Custodian, later succeeded by the Attorney General of the United States, intervened and, in effect, tendered his claim to the entire property, by virtue of a vesting order issued under 5 of the Trading with the Enemy Act, as amended. The state courts denied such relief, and no review was sought here. The Attorney General subsequently amended the vesting order and brought suit in the New York state courts, praying that the principal of the trust be transferred to him. The state courts denied the relief. Held: Principles of res judicata bar the present suit. Pp. 37-39. 286 App. Div. 808, 143 N. Y. S. 2d 623, affirmed.George B. Searls argued the cause for petitioner. With him on a brief were Solicitor General Rankin, Assistant Attorney General Townsend and James D. Hill. Simon E. Sobeloff, then Solicitor General, was also on a brief with Mr. Townsend, Mr. Hill and Mr. Searls.Thomas A. Ryan argued the cause and filed a brief for the Chase National Bank of New York, Trustee, respondent.Samuel Anatole Lourie argued the cause and filed a brief for Schaefer et al., respondents.Arthur J. O'Leary argued the cause for Schwarzburger et al., respondents. With him on the brief was Kenneth J. Mullane. MR. JUSTICE DOUGLAS delivered the opinion of the Court.The question in the case is whether petitioner, by virtue of a vesting order issued under 5 of the Trading with the Enemy Act, as amended, 40 Stat. 411, 50 U.S.C. App. 5, is entitled to the res of a trust established in 1928 by one Cobb and administered by respondent under an indenture. The trust was created for the benefit of the descendants of Bruno Reinicke who, by reason of his powers over the trust and his ownership of the right of reversion, was the real settlor.In 1945, when this Nation was at war with Germany, the Alien Property Custodian issued an order vesting "all right, title, interest and claim of any kind or character whatsoever" of the beneficiaries of the trust, declaring that they were nationals of Germany. Subsequently the Custodian (for whom the Attorney General was later substituted) intervened in an action brought by the trustee in the New York courts for a construction of the indenture and for an accounting. Relief sought by that intervention was that the income of the trust be paid to the Attorney General and that the powers reserved to the settlor be held to have passed by virtue of the vesting order to the Attorney General. We are also advised by the report of the case in the Court of Appeals that the Attorney General also claimed that, if the vesting order had not transferred the settlor's powers to the Attorney General, "then the trust had failed and all of the trust property should pass to the Attorney General under the vesting order as being property of alien enemies." Chase National Bank v. McGrath, 301 N. Y. 602, 603-604, 93 N. E. 2d 495.The New York Supreme Court denied the relief asked by the Attorney General, holding he was not entitled to the income of the trust, that he had not succeeded to the powers of the settlor, and that those powers were vested in the trustee as long as the settlor was barred from asserting them. On appeal the Appellate Division affirmed. Chase National Bank v. McGrath, 276 App. Div. 831, 93 N. Y. S. 2d 724. The Court of Appeals in turn affirmed. Chase National Bank v. McGrath, 301 N. Y. 602, 93 N. E. 2d 495. No review of that order was sought here.Some years passed, when, in 1953, the Attorney General amended the vesting order by undertaking to appropriate "all property in the possession, custody or control" of the trustee.* In a suit in the New York courts he asked, among other things, that the principal of the trust be transferred to him. The Supreme Court of New York denied the relief. The Appellate Division affirmed without opinion. Chase National Bank v. Reinicke, 286 App. Div. 808, 143 N. Y. S. 2d 623. The Court of Appeals denied leave to appeal. Chase National Bank v. Reinicke, 309 N. Y. 1030, 129 N. E. 2d 790. The case is here on certiorari. .We do not reach the several questions presented under the Trading with the Enemy Act for we are of the view that the principles of res judicata require an affirmance. In the first litigation, the Attorney General sought to reach the equitable interests in the trust and the powers of the settlor. When the Attorney General now seeks the entire bundle of rights, he is claiming for the most part what was denied him in the first suit. That is not all. In the first suit he claimed that if he were denied the powers which the settlor had over the trust, the trust must fail and all the trust property must be transferred to him. In other words, the Attorney General tendered in the first suit his claim to the entire property. Cf. Young v. Higbee Co., . Under familiar principles of res judicata, the claim so tendered may not be relitigated. Cromwell v. County of sac, ; Tait v. Western Maryland R. Co., . If he was not content with the first ruling, his remedy was by certiorari to this Court. Angel v. Bullington, . Having failed to seek and obtain that review, he is barred from relitigating the issues tendered in the first suit. Affirmed.MR. JUSTICE CLARK and MR. JUSTICE HARLAN took no part in the consideration or decision of the case.[Footnote *] The state of war between this country and Germany was declared ended by the Joint Resolution of October 19, 1951, 65 Stat. 451. That Resolution contained, however, a proviso that all property, which, prior to January 1, 1947, was subject to seizure under the Act, continued to be subject to the Act. The 1953 vesting order preceded by a few days the termination of the vesting program of German-owned properties announced by the President on April 17, 1953. |
7 | Petitioner filed a claim against her late husband's employer for compensation death benefits under the Longshoremen's and Harbor Workers' Compensation Act, alleging that his fall at home on January 30, 1961, from which he later died, resulted from a work-connected injury sustained on January 26. A Department of Labor Deputy Commissioner rejected the claim for failure to establish a work-connected injury. Thereafter, petitioner discovered an eyewitness to a work-connected injury to her husband on January 30 about two hours before the fall at home which resulted in his death, and filed a second compensation claim against the employer. Prior to the hearing thereon, petitioner brought a wrongful death action against a third party based on the January 30 injury. The jury returned a verdict for $30,000, but the judge ruled that a motion for a new trial would be granted unless petitioner consented to a remittitur of $11,000. Without consulting the employer, petitioner accepted the remittitur and a judgment for $19,000 was entered. The Deputy Commissioner, after hearings, entered an award for petitioner in the second compensation claim. Respondents brought an action in the District Court to set aside the award. The District Court affirmed, but the Court of Appeals reversed, holding that the second compensation action was barred by the doctrine of res judicata. Held: 1. The second claim was not barred by res judicata, but comes within the scope of 22 of the Act, which provides for review "because of a mistake in a determination of fact" by the Deputy Commissioner "at any time prior to one year after rejection of a claim," and permits him to "award compensation" after such review. Pp. 462-465. 2. An order of remittitur is a judicial determination of recoverable damages, and petitioner's acceptance of the remittitur in her third-party lawsuit was not a compromise within the meaning of 33 (g) of the Act. Pp. 465-467. 3. The Deputy Commissioner's finding that there was a causal connection between the January 30 work-connected injury to petitioner's husband and his fall at home two hours later was supported by substantial evidence on the record as a whole and must be affirmed. P. 467. 369 F.2d 344, reversed.Harold A. Liebenson argued the cause for petitioner. With him on the brief was Edward G. Raszus.Mark A. Braun argued the cause for respondents. With him on the brief was Thomas P. Smith.MR. JUSTICE STEWART delivered the opinion of the Court.On January 30, 1961, shortly after returning home from work, the petitioner's husband suffered a fall that resulted in his death on February 12. On February 20, 1961, the petitioner on behalf of herself and her three minor children filed a claim against her husband's employer,1 the respondent, for compensation death benefits under the Longshoremen's and Harbor Workers' Compensation Act. 44 Stat. 1424, 33 U.S.C. 901-950. The petitioner alleged that her husband's fall on January 30 had resulted from a work-connected injury suffered on January 26. A hearing was held before a Department of Labor Deputy Commissioner; and on June 8, 1961, the Deputy Commissioner rejected the petitioner's claim for failure to establish that her husband's death had resulted from a work-connected injury.2 The petitioner did not bring an action in District Court to set aside the Deputy Commissioner's ruling. 33 U.S.C. 921. Some time after the Deputy Commissioner's decision, the petitioner discovered an eyewitness to a work-connected injury suffered by her husband on January 30, the same day as his fall at home. On August 22, 1961, the petitioner filed a second compensation action against the respondent - this time alleging that the fall resulted from an injury suffered on January 30.On September 8, 1961, the petitioner began a wrongful-death action in the Northern District of Illinois against a third party, the Norris Grain Company, alleging that her husband's fall resulted from the same January 30 injury. On May 3, 1963, a jury rendered a verdict of $30,000 for the petitioner in that lawsuit. The grain company moved for a new trial, and the trial judge ruled that the motion would be granted unless the petitioner consented to a remittitur of $11,000. On May 16, 1963, without consulting the respondent, the petitioner accepted the remittitur. Judgment was entered for $19,000.On August 29, 1963, a hearing on the petitioner's second compensation action commenced. On January 27, 1964, the Deputy Commissioner entered findings of fact and an award for the petitioner. The respondent brought an action in District Court to set the award aside. The District Court affirmed, but the Court of Appeals reversed. 369 F.2d 344. We granted certiorari to consider questions concerning the administration of the Longshoremen's and Harbor Workers' Compensation Act. .The Court of Appeals held that the petitioner's second compensation action was barred by the doctrine of res judicata. The petitioner contends that that doctrine is displaced in this case by the operation of 22 of the Act,3 which provides: "Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed [for original claims], and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation." 33 U.S.C. 922. (Emphasis added.) The petitioner asserts that her second compensation action came under 22 because it challenged a "determination of fact by the deputy commissioner" in her original compensation action - namely, the finding that her husband's fall did not result from a work-connected injury. The respondent argues that "a mistake in a determination of fact" in 22 refers only to clerical errors and matters concerning an employer's disability, not to matters concerning an employer's liability. Conceding that nothing in the statutory language supports this reading, the respondent contends that the legislative history reveals Congress' limited purpose.4 Section 22 was first enacted as part of the original Longshoremen's and Harbor Workers' Compensation Act in 1927. 44 Stat. 1437. At that time the section provided for review by the Deputy Commissioner only on the ground of a "change in conditions." The Deputy Commissioner was authorized by the section to "terminate, continue, increase, or decrease" the original compensation award; review was permitted only "during the term of an award."From 1930 to 1933, the United States Employees' Compensation Commission, which was charged with administering the Act, recommended in its annual reports that 22 be amended to permit review by the Deputy Commissioner at any time. 14th Ann. Rep. of the United States Employees' Compensation Commission (hereafter USECC) 75 (1930); 15th Ann. Rep. USECC 77 (1931); 16th Ann. Rep. USECC 49 (1932); 17th Ann. Rep. USECC 18 (1933).5 In 1934 Congress, while not adopting the recommendation entirely, responded by amending 22 to permit review "any time prior to one year after the date of the last payment of compensation."6 48 Stat. 807. At the same time Congress added a second ground for review by the Deputy Commissioner: "a mistake in a determination of fact." The purpose of this amendment was to "broaden the grounds on which a deputy commissioner can modify an award" by allowing modification where "a mistake in a determination of fact makes such modification desirable in order to render justice under the act." S. Rep. No. 588, 73d Cong., 2d Sess., 3-4 (1934); H. R. Rep. No. 1244, 73d Cong., 2d Sess., 4 (1934).In its annual reports for 1934-1936, the Compensation Commission recommended that 22 be further amended to apply in cases where the original compensation claim is rejected by the Deputy Commissioner. 18th Ann. Rep. USECC 38 (1934); 19th Ann. Rep. USECC 49 (1935); 20th Ann. Rep. USECC 52 (1936). Congress responded in 1938 by amending 22 to permit review by the Deputy Commissioner "at any time prior to one year after the rejection of a claim" and to allow the Deputy Commissioner after such review to "award compensation." 52 Stat. 1167. The purpose of this amendment was to extend "the enlarged authority therein [1934 amendment] provided to cases in which the action of the deputy commissioner has been a rejection of the claim." S. Rep. No. 1988, 75th Cong., 3d Sess., 8 (1938); H. R. Rep. No. 1945, 75th Cong., 3d Sess., 8 (1938).We find nothing in this legislative history to support the respondent's argument that a "determination of fact" means only some determinations of fact and not others. The respondent points out that the recommendations of the Compensation Commission prior to the 1934 amendment referred to analogous state laws; but those recommendations dealt with the time period in which review was to be available, not with the grounds for review. The respondent has referred us to no decision, state or federal, holding that a statute permitting review of determinations of fact is limited to issues relating to disability. In the absence of persuasive reasons to the contrary, we attribute to the words of a statute their ordinary meaning,7 and we hold that the petitioner's second compensation action, filed a few months after the rejection of her original claim, came within the scope of 22.8 The respondent raised two other issues in the Court of Appeals, which that court found unnecessary to reach. These issues have been fully briefed and argued in this Court; and in order to bring this litigation to a close, we dispose of them here.Section 33 of the Longshoremen's and Harbor Workers' Compensation Act permits an individual entitled to compensation to sue a third party for damages. 33 U.S.C. 933 (a). If no such suit is brought and compensation is accepted from the employer under an award, the rights of the employee against third parties are assigned to the employer. 33 U.S.C. 933 (b) and (c). If, as in this case, a suit is brought against a third party, the employer is liable in compensation only to the extent that allowable compensation benefits exceed the recovery from the third party. 33 U.S.C. 933 (f). Section 33 (g) of the Act further provides: "If compromise with such third person is made by the person entitled to compensation ... of an amount less than the compensation to which such person or representative would be entitled to under this chapter, the employer shall be liable for compensation ... only if such compromise is made with his written approval." 33 U.S.C. 933 (g). The respondent contends that the petitioner's acceptance of the judicially ordered remittitur of $11,000 in her third-party lawsuit was a "compromise" within the meaning of 33 (g). We disagree.The Longshoremen's and Harbor Workers' Compensation Act was modeled on the New York employees' compensation statute. Lawson v. Suwannee S. S. Co., ; H. R. Rep. No. 1190, 69th Cong., 1st Sess., 2 (1926). Under the analogous provision of that act, the New York Court of Appeals has held that a remittitur is not a compromise."Plaintiff's stipulation consenting to take that portion of the verdict judicially determined as being not excessive, does not fall within any recognized meaning of the word `compromise.'" Gallagher v. Carol Construction Co., 272 N. Y. 127, 129, 5 N. E. 2d 63, 64. An order of remittitur is a judicial determination of recoverable damages; it is not an agreement among the parties involving mutual concessions. Section 33 (g) protects the employer against his employee's accepting too little for his cause of action against a third party. That danger is not present when damages are determined, not by negotiations between the employee and the third party, but rather by the independent evaluation of a trial judge. Cf. Bell v. O'Hearne, 284 F.2d 777.Finally, the respondent attacks the Deputy Commissioner's finding of fact that there was a causal connection between the work-connected injury suffered by the petitioner's husband on January 30 and his fall at home some two hours later. The Deputy Commissioner's finding must be affirmed if supported by substantial evidence on the record considered as a whole. O'Leary v. Brown-Pacific-Maxon, Inc., . The District Court held that the Deputy Commissioner's finding was supported by substantial evidence, and we agree. While some of the testimony of the petitioner's medical expert was arguably inconsistent with other parts of his testimony, it was within the province of the Deputy Commissioner to credit part of the witness' testimony without accepting it all.The judgment of the Court of Appeals is Reversed.MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. |
11 | [ Goggin v. Division of Labor Law Enforcement of Cal. ], 119] Mr. Martin Gendel, of Los Angeles, Cal., for petitioner. Mr. Edward M. Belasco, of Los Angeles, Cal., for respondent. Mr. Robert W. Ginnane, of Washington, D.C., for The United States, as amicus curiae, by special leave of Court. Mr. Justice BURTON delivered the opinion of the Court. This case deals with the question whether 67, sub. c of the Bankruptcy Act, 1 in determining priorities in the payment of claims, speaks as of the time of filing the petition , 120] in bankruptcy. The precise issue presented is whether a tax claim of the United States, secured by a lien perfected before the bankruptcy of the taxpayer and accompanied, at the time of the filing of the petition in bankruptcy, by the Collector of Internal Revenue's actual possession of the bankrupt's personal property, is required by 67, sub. c of the Bankruptcy Act to be postponed in payment to debts owed by the bankrupt for wages to claimants specified in clause (2) of 64, sub. a of that Act, 2 because the Col- , 121] lector later relinquished possession of such property to the trustee of the bankrupt's estate for sale by him. We hold that the lien was valid and entitled to priority of payment as against the wage claims at the date of bankruptcy and that the Collector's relinquishment of ossession of the bankrupt's property did not change the result. The facts are undisputed. Before March 26, 1946, a Collector of Internal Revenue of the United States per- , 122] fected a statutory lien upon the personal property of the Kessco Engineering Corporation, a California corporation, and took actual possession of such property pursuant to that lien. He attempted to sell such assets and received bids for them but did not complete the sale because the price obtainable was unsatisfactory to him. He instituted a second sale but abandoned it when he relinquished possession of the property to the trustee of the bankrupt's estate. On March 26, 1946, the corporation filed its voluntary petition in bankruptcy in the United States District Court for the Southern District of California, was adjudicated a bankrupt and George T. Goggin (who later became the trustee of the bankrupt's estate and is the petitioner herein) was appointed receiver. Having qualified as receiver on March 28, 1946, he communicated with counsel for the Collector as to the Collector's turning over to him the bankrupt's personal property. In this connection, the referee in bankruptcy later made a finding of fact which was adopted by the District Court and is as follows:'* * * the personal property of the bankrupt in the hands of the Collector of Internal Revenue, * * * was turned over to the said George T. Goggin, who accepted the terms and conditions of a telegram from J. P. Wenchel, Chief Counsel of the Bureau of Internal Revenue, reading as follows: "Reference to telephone conversation today with Mr. Webb (member of the Los Angeles office of Internal Revenue) relative to Kessco Engineering Corporation, Bankrupt, no objection by this office to Collector relinquishing personal property to Trustee for sale. Government's lien to attach to proceeds from sale subject to Trustee's expenses including costs of sale. "J. P. Wenchel, Chief Counsel." , 123] Goggin, in his final capacity as trustee for the bankrupt, caused these assets to be sold at public auction, pursuant to order of court. Having liquidated all assets which had come into his possession, he had on hand, on December 12, 1946, about $31,206.20, which the referee certified was insufficient to pay in full the expenses of administration, the lien claims, the prior labor claims and prior tax claims in the case. The gross amount of the amended claim of the Collector for taxes, penalties and interest was $78,865.03. The prior wage claims totaled $3,424.87. The Department of Employment of the State of California also filed a tax claim for $15,135, which was recorded as a lien on or about December 24, 1945. Neither the validity nor the amount of any of these claims is in issue here. 3 The present proceeding originated in a petition filed with the referee in bankruptcy by the trustee, seeking an order to show cause why the order of priority of the payment of the tax and prior wage claims and the expenses of administration should not be determined by the District Court. The referee made findings of fact and reached conclusions of law upon the basis of which he ordered that, from the monies in the possession of the trustee, , 124] there first be paid the expenses of administration and that the balance of such funds then in the hands of the trustee be paid to the Collector of Internal Revenue in partial payment of the Government's tax claims and the interest thereon as prescribed by law. 4 The District Court adopted the findings of fact and conclusions of law of the referee and entered judgment thereon. The Court of Appeals for the Ninth Circuit reversed that judgment and held that, by virtue of the Collector's relinquishment of his possession of the personal property of the bankrupt, the taxes due to the United States must be postponed, in payment, to the debts of the bankrupt for certain wage claims, pursuant to 67, sub. c of the Bankruptcy Act. 165 F.2d 155. Because of the importance of the issue in the administration of the Bankruptcy Act, we granted certiorari. . The bankrupt filed its petition and was adjudicated a bankrupt on March 26, 1946. The personal property of the bankrupt was then subject to the perfected statutory lien of the United States for taxes and that lien was accompanied by the actual physical possession of the property by a Collector of Internal Revenue on behalf of the United States. Those facts completely satisfy 67, sub. c of the Bankruptcy Act. 5 Subsequent events, such as the relinquishment of his possession by the Collector in favor of the trustee of the bankrupt's estate for the purpose of facilitating a sale of the property by the trustee, are not material to the determination of the , 125] issue before us. 6 The terms under which the Collector's possession was relinquished are consistent with and support this result but the Government's right to payment ahead of the wage claims was determined at the time of bankruptcy and did not arise out of the arrangement under which possession was relinquished to the trustee. This general point of view in interpreting the Bankruptcy Act is one of long standing. In Everett v. Judson, , 569, 46 L.R.A.,N.S., 154, this Court said:'We think that the purpose of the law was to fix the line of cleavage with reference to the condition , 126] of the bankrupt estate as of the time at which the petition was filed and that the property which vests in the trustee at the time of adjudication is that which the bankrupt owned at the time of the filing of the petition.' See also, Myers v. Matley, , 783, 145 A.L.R. 498; United States v. Marxen, , 207, 208, 815; Acme Harvester Co. v. Beekman Lumber Co., , 99.7 While 67, sub. c was added to the Bankruptcy Act by the Chandler Act in 1938, we find nothing in it or in its legislative history to suggest an abandonment of the underlying point of view as to the time as of which it speaks and the general purpose of Congress to continue to safe- , 127] guard intere ts under liens perfected before bankruptcy. City of Richmond v. Bird, ; In re Knox-Powell- Stockton Co., 9 Cir., 100 F.2d 979; In re Van Winkle, D.C., 49 F.Supp. 711. While 64, as amended, somewhat readjusts priorities among unsecured claims, 67 continues to recognize the validity of liens perfected before bankruptcy as against unsecured claims. Section 67, sub. b has clarified the validity of statutory liens, including those for taxes, even though arising or perfected while the debtor is insolvent and within four months of the filing of the petition in bankruptcy. It expressly recognizes that the validity of liens existing at the time of filing a petition in bankruptcy may be perfected under some circumstances after bankruptcy. Section 67, sub. c, as amended in 1938, does, however, introduce a new postponement in the payment of certain claims secured by liens to the payment of other claims specified in clauses (1) (for certain administrative expenses, etc.) and (2) (for certain wages) of 64 sub. a. This subordination is, however, sharply limited. For example, it does not apply to statutory liens on real property, or to those actually enforced by sale before bankruptcy, or, in general, to liens on personal property when accompanied by actual possession of such property. The background of 67, sub. c suggests a conscious purpose to give a narrowly limited priority to administrative expenses and to certain wage claims, at least in instances disclosing accumulations of unpaid taxes the priority of which wage earners had no good reason to suspect, and which might absorb the entire estate of the bankrupt unless postponed by these provisions. 8 The , 128] purpose of 67 in requiring a public warning of the existence of an enforceable statutory lien for taxes was served in the instant case not only by the steps taken to perfect , 129] the Government's lien but by the Collector's seizure and actual possession of the personal property of the taxpayer before the filing of the taxpayer's petition in bankruptcy. , 130] The validity of the lien for taxes as against the wage claimants was thus established at the time of the filing of the petition in bankruptcy and the Collector's possession of the personal property of the bankrupt excluded the application of 67, sub. c which otherwise would have postponed the payment of the tax claims to the payment of the claims for administrative expenses and wages specified in clauses (1) and (2) of 64, sub. a. By his subsequent arrangement with the trustee for the sale of the bankrupt's property, the Collector did not lose the right to priority of payment accorded to the perfected tax liens, at the time of bankruptcy, as against the wage claims. The arrangement between the Collector and the trustee was a natural and proper one. While the ame ded claim for taxes, penalties and interest, dated August 28, 1946, amounted to $78,865.03, the original claim, filed with the notices of lien prior to March 26, 1946, amounted to only $40,921. 94 (even including the interest and costs later computed to August 21, 1946). Of this sum the taxes themselves amounted only to $34,848.04. To meet this, the trustee of the bankrupt's estate, on December 12, 1946, had on hand $31,206.20, evidently derived from the sale of the property originally held by the Collector. These figures, accordingly, suggest the possibility that, in March, 1946, it reasonably may have been supposed that a surplus above the amount of the Government's tax claim might be realized from the sale of the assets then in the possession of the Collector. In that event, it would have been the obviously appropriate procedure for the trustee to sell that property free and clear of liens and encumbrances and then distribute the proceeds to the rightful claimants. Even though there was little or no prospect of realizing such a surplus, it was reasonable and appropriate for the trustee, with the consent of the lien holder, thus to sell the property and distribute its proceeds. See Van Huffel v. Harkelrode, A.L.R. 453; 6 , 131] Remington on Bankruptcy 2577-2578, 4th Ed. 1937.9 The propriety of the present conclusion is emphasized by the fact that the opposite conclusion would, in many other cases, operate to the detriment both of unsecured creditors and of the statutory lien holders. It would compel a lien holder to retain his actual possession of the property in order to be sure of his full priority in the payment of his tax claim. He would be compelled to do this, even though by doing so the bankrupt's property probably would yield a smaller sales price than if sold by the trustee. Furthermore, the lien holder would be brought into sharp conflict with the trustee whenever there was reason to suppose that the proceeds of the sale might equal or exceed the tax claims secured by the lien. Under such circumstances the bankruptcy court generally may order the sale of the bankrupt's property by the trustee, free and clear of liens and encumbrances. See 4 Collier on Bankruptcy 70.97, 70.99, 14th Ed. 1942; 6 Remington on Bankruptcy 2583, 4th Ed. 1937. Accordingly, we find no substantial support for the argument that the lien holder's voluntary relinquishment of his possession of the bankrupt's property, in favor of the bankrupt's trustee, for the purpose of permitting the trustee to sell the property in this case, must carry with it, as a matter of law, a postponement of the payment of the lien holder's tax claim to that of the claims for wages here presented. For these reasons the judgment of the Court of Appeals is reversed. Reversed. |
8 | Under 28 U.S.C. 2412 (a), costs may not be assessed against the Federal Security Administrator in a suit brought against him in his official capacity, when there is no express statutory authority for the allowance of such costs. 185 F.2d 781, reversed in part. In a suit against the Federal Security Administrator in his official capacity, the District Court awarded a judgment and assessed costs against the Administrator. 88 F. Supp. 315. The Court of Appeals affirmed. 185 F.2d 781. Certiorari granted and judgment reversed, insofar as it relates to the taxation of costs against petitioner.Solicitor General Perlman for petitioner.Theodore F. Gardner for respondent.PER CURIAM.The petition for writ of certiorari is granted. The sole question presented by the petition is the validity of the affirmance by the Court of Appeals of the judgment rendered against the petitioner for costs by the District Court. There being no express statutory authority for the allowance of costs to the respondent, such an award of costs is precluded by 28 U.S.C. 2412 (a). The judgment of the Court of Appeals, insofar as it relates to the taxation of costs against the petitioner, is therefore reversed. |
6 | Where neither the Union-employer contract nor the Union's constitution or bylaws defined or limited the circumstances under which a member could resign from the Union, it was an unfair labor practice for the Union to fine employees who had been Union members in good standing but who had resigned during a lawful strike authorized by the members and thereafter returned to work during that strike. Pp. 215-218. 446 F.2d 369, reversed.DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and REHNQUIST, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 218. BLACKMUN, J., filed a dissenting opinion, post, p. 218.Norton J. Come argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Allan A. Tuttle, and Peter G. Nash.Harold B. Roitman argued the cause and filed a brief for respondent.Milton Smith, Jerry Kronenberg, and Gerard C. Smetana filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.Plato E. Papps, Louis Poulton, and Bernard Dunau filed a brief for the International Association of Machinists and Aerospace Workers, AFL-CIO, as amicus curiae, urging affirmance. MR. JUSTICE DOUGLAS delivered the opinion of the Court.Respondent is a union that had a collective-bargaining agreement with an employer which contained a maintenance-of-membership clause providing that members were, as a condition of employment, to remain in good standing "as to payment of dues" for the duration of the contract. Neither the contract nor the Union's constitution or bylaws contained any provision defining or limiting the circumstances under which a member could resign. A few days before the collective agreement expired, the Union membership voted to strike if no agreement was reached by a given date. No agreement was reached in the specified period, so the strike and attendant picketing commenced. Shortly thereafter, the Union held a meeting at which the membership resolved that any member aiding or abetting the employer during the strike would be subject to a $2,000 fine.About six weeks later, two members sent the Union their letters of resignation. Six months or more later, 29 other members resigned. These 31 employees returned to work.The Union gave them notice that charges had been made against them and that on given dates the Union would hold trials. None of the 31 employees appeared on the dates prescribed; but the trials nonetheless took place even in the absence of the employees and fines were imposed on all.1 Suits were filed by the Union to collect the fines. But the outcome was not determined because the employees filed unfair labor practice charges with the National Labor Relations Board against the Union. The unfair labor practice charged was that the Union restrained or coerced the employees "in the exercise of the rights guaranteed in section 7."2 See 8 (b) (1) of the Act.3 The Board ruled that the Union had violated 8 (b) (1). 187 N. L. R. B. 636. The Court of Appeals denied enforcement of the Board's order. 446 F.2d 369. The case is here on certiorari, .We held in NLRB v. Allis-Chalmers Mfg. Co., , that a union did not violate 8 (b) (1) by fining members who went to work during a lawful strike authorized by the membership and by suing to collect the fines. The Court reviewed at length in that opinion the legislative history of 7 and 8 (b) (1), and concluded by a close majority vote that the disciplinary measures taken by the union against its members on those facts were within the ambit of the union's control over its internal affairs. But the sanctions allowed were against those who "enjoyed full union membership." Id., at 196.Yet when a member lawfully resigns from the union, its power over him ends. We noted in Scofield v. NLRB, , that if a union rule "invades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating 8 (b) (1)." On the facts, we held that Scofield, where fines were imposed on members by the union, fell within the ambit of Allis-Chalmers. But we drew the line between permissible and impermissible union action against members as follows:"... 8 (b) (1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule." Id., at 430. Under 7 of the Act the employees have "the right to refrain from any or all" concerted activities relating to collective bargaining or mutual aid and protection, as well as the right to join a union and participate in those concerted activities. We have here no problem of construing a union's constitution or bylaws defining or limiting the circumstances under which a member may resign from the union.4 We have, therefore, only to apply the law which normally is reflected in our free institutions - the right of the individual to join or to resign from associations, as he sees fit "subject of course to any financial obligations due and owing" the group with which he was associated. Communications Workers v. NLRB, 215 F.2d 835, 838. The Scofield case indicates that the power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully resigns from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street.The Court of Appeals gave weight to the fact that the resigning employees had participated in the vote to strike. We give that factor little weight. The first two members resigned from the Union from one to two months after the strike had begun. The others did so from seven to 12 months after its commencement. And the strike was still in progress 18 months after its inception. Events occurring after the calling of a strike may have unsettling effects, leading a member who voted to strike to change his mind. The likely duration of the strike may increase the specter of hardship to his family; the ease with which the employer replaces the strikers may make the strike seem less provident. We do not now decide to what extent the contractual relationship between union and member may curtail the freedom to resign. But where, as here, there are no restraints on the resignation of members,5 we conclude that the vitality of 7 requires that the member be free to refrain in November from the actions he endorsed in May and that his 7 rights are not lost by a union's plea for solidarity or by its pressures for conformity and submission to its regime. Reversed.MR. CHIEF JUSTICE BURGER, concurring.I join the Court's opinion because for me the institutional needs of the Union, important though they are, do not outweigh the rights and needs of the individual. The balance is close and difficult; unions have need for solidarity and at no time is that need more pressing than under the stress of economic conflict. Yet we have given special protection to the associational rights of individuals in a variety of contexts; through 7 of the Labor Act, Congress has manifested its concern with those rights in the specific context of our national scheme of collective bargaining. Where the individual employee has freely chosen to exercise his legal right to abandon the privileges of union membership, it is not for us to impose the obligations of continued membership. |
0 | After the Ohio courts sentenced respondent Spisak to death and denied his claims on direct appeal and collateral review, he filed a federal habeas petition claiming that, at his trial's penalty phase, (1) the instructions and verdict forms unconstitutionally required the jury to consider in mitigation only those factors that it unanimously found to be mitigating, see Mills v. Maryland, 486 U. S. 367, and (2) his counsel's inadequate closing argument deprived him of effective assistance of counsel, see Strickland v. Washington, 466 U. S. 668. The District Court denied the petition, but the Sixth Circuit accepted both arguments and ordered relief. Held: 1. Because the state court's upholding of the mitigation jury instructions and forms was not "contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by [this] Court," 28 U. S. C. §2254(d)(1), the Sixth Circuit was barred from reaching a contrary decision. The Court of Appeals erred in holding that the instructions and forms contravened Mills, in which this Court held that the jury instructions and verdict forms at issue violated the Constitution because, read naturally, they told the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proved to exist, 486 U. S., at 380-381, 384. Even assuming that Mills sets forth the pertinent "clearly established Federal law" for reviewing the state-court decision in this case, the instructions and forms used here differ significantly from those in Mills: They made clear that, to recommend a death sentence, the jury had to find unanimously that each of the aggravating factors outweighed any mitigating circumstances, but they did not say that the jury had to determine the existence of each individual mitigating factor unanimously. Nor did they say anything about how — or even whether — the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall question of balancing the aggravating and mitigating factors, and they repeatedly told the jury to consider all relevant evidence. Thus, the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the constitutional error in the Mills instructions. Pp. 2-9. 2. Similarly, the state-court decision rejecting Spisak's ineffective-assistance-of-counsel claim was not "contrary to, or ... an unreasonable application" of the law "clearly established" in Strickland. §2254(d)(1). To prevail on this claim, Spisak must show, inter alia, that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, at 694. Even assuming that the closing argument was inadequate in the respects claimed by Spisak, this Court finds no "reasonable probability" that a better closing argument without these defects would have made a significant difference. Any different, more adequate closing argument would have taken place in the following context: Spisak's defense at the trial's guilt phase consisted of an effort by counsel to show that Spisak was not guilty by reason of insanity. Counsel, apparently hoping to demonstrate Spisak's mentally defective condition, called him to the stand, where he freely admitted committing three murders and two other shootings and repeatedly expressed an intention to commit further murders if given the opportunity. In light of this background and for the following reasons, the assumed closing argument deficiencies do not raise the requisite reasonable probability of a different result but for the deficient closing. First, since the sentencing phase took place immediately after the guilt phase, the jurors had fresh in their minds the government's extensive and graphic evidence regarding the killings, Spisak's boastful and unrepentant confessions, and his threats to commit further violent acts. Second, although counsel did not summarize the mitigating evidence in great detail, he did refer to it, and the defense experts' more detailed testimony regarding Spisak's mental illness was also fresh in the jurors' minds. Third, Spisak does not describe what other mitigating factors counsel might have mentioned; all those he proposes essentially consist of aspects of the "mental defect" factor that the defense experts described. Finally, in light of counsel's several appeals to the jurors' sense of humanity, it is unlikely that a more explicit or elaborate appeal for mercy could have changed the result, either alone or together with the foregoing circumstances. The Court need not reach Spisak's claim that §2254(d)(1) does not apply to his claim, because it would reach the same conclusion even on de novo review. Pp. 9-16.512 F. 3d 852, reversed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, Alito, and Sotomayor, JJ., joined, and in which Stevens, J., joined as to Part III. Stevens, J., filed an opinion concurring in part and concurring in the judgment.KEITH SMITH, WARDEN, PETITIONER v. FRANK G. SPISAK, Jr.on writ of certiorari to the united states court of appeals for the sixth circuit[January 12, 2010] Justice Breyer delivered the opinion of the Court. Frank G. Spisak, Jr., the respondent, was convicted in an Ohio trial court of three murders and two attempted murders. He was sentenced to death. He filed a habeas corpus petition in federal court, claiming that constitutional errors occurred at his trial. First, Spisak claimed that the jury instructions at the penalty phase unconstitutionally required the jury to consider in mitigation only those factors that the jury unanimously found to be mitigating. See Mills v. Maryland, 486 U. S. 367 (1988). Second, Spisak claimed that he suffered significant harm as a result of his counsel's inadequate closing argument at the penalty phase of the proceeding. See Strickland v. Washington, 466 U. S. 668 (1984). The Federal Court of Appeals accepted these arguments and ordered habeas relief. We now reverse the Court of Appeals.I In 1983, an Ohio jury convicted Spisak of three murders and two attempted murders at Cleveland State University in 1982. The jury recommended, and the judge imposed, a death sentence. The Ohio courts denied Spisak's claims, both on direct appeal and on collateral review. State v. Spisak, 36 Ohio St. 3d 80, 521 N. E. 2d 800 (1988) (per curiam); State v. Spisak, No. 67229, 1995 WL 229108 (Ohio App., 8th Dist., Cuyahoga Cty., Apr. 13, 1995); State v. Spisak, 73 Ohio St. 3d 151, 652 N. E. 2d 719 (1995) (per curiam). Spisak then sought a federal writ of habeas corpus. Among other claims, he argued that the sentencing phase of his trial violated the U. S. Constitution for the two reasons we consider here. The District Court denied his petition. Spisak v. Coyle, Case No. 1:95CV2675 (ND Ohio, Apr. 18, 2003), App. to Pet. for Cert. 95a. But the Court of Appeals accepted Spisak's two claims, namely, his mitigation instruction claim and his ineffective-assistance-of-counsel claim. Spisak v. Mitchell, 465 F. 3d 684, 703-706, 708-711 (CA6 2006). The Court of Appeals consequently ordered the District Court to issue a conditional writ of habeas corpus forbidding Spisak's execution. Id., at 715-716. The State of Ohio then sought certiorari in this Court. We granted the petition and vacated the Court of Appeals' judgment. Hudson v. Spisak, 552 U. S. 945 (2007). We remanded the case for further consideration in light of two recent cases in which this Court had held that lower federal courts had not properly taken account of the deference federal law grants state-court determinations on federal habeas review. Ibid.; see 28 U. S. C. §2254(d); Carey v. Musladin, 549 U. S. 70 (2006); Schriro v. Landrigan, 550 U. S. 465 (2007). On remand, the Sixth Circuit reinstated its earlier opinion. Spisak v. Hudson, 512 F. 3d 852, 853-854 (2008). The State again sought certiorari. We again granted the petition. And we now reverse.II Spisak's first claim concerns the instructions and verdict forms that the jury received at the sentencing phase of his trial. The Court of Appeals held the sentencing instructions unconstitutional because, in its view, the instructions, taken together with the forms, "require[d]" juror "unanimity as to the presence of a mitigating factor"--contrary to this Court's holding in Mills v. Maryland, supra. 465 F. 3d, at 708. Since the parties do not dispute that the Ohio courts "adjudicated" this claim, i.e., they considered and rejected it "on the merits," the law permits a federal court to reach a contrary decision only if the state-court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. §2254(d)(1). Unlike the Court of Appeals, we conclude that Spisak's claim does not satisfy this standard. The parties, like the Court of Appeals, assume that Mills sets forth the pertinent "clearly established Federal law." While recognizing some uncertainty as to whether Mills was "clearly established Federal law" for the purpose of reviewing the Ohio Supreme Court's opinion, we shall assume the same. Compare Williams v. Taylor, 529 U. S. 362, 390 (2000) (Stevens, J., for the Court) (applicable date for purposes of determining whether "Federal law" is "established" is when the "state-court conviction became final"), with id., at 412 (O'Connor, J., for the Court) (applicable date is "the time of the relevant state-court decision"); see State v. Spisak, 36 Ohio St. 3d 80, 521 N. E. 2d 800 (decided Apr. 13, 1988), cert. denied, 489 U. S. 1071 (decided Mar. 6, 1989); Mills v. Maryland, supra (decided June 6, 1988).A The rule the Court set forth in Mills is based on two well-established principles. First, the Constitution forbids imposition of the death penalty if the sentencing judge or jury is " ' "precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." ' " 486 U. S., at 374 (quoting Eddings v. Oklahoma, 455 U. S. 104, 110 (1982), in turn quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion)). Second, the sentencing judge or jury " ' may not refuse to consider or be precluded from considering "any relevant mitigating evidence." ' " Mills, 486 U. S., at 374-375 (quoting Skipper v. South Carolina, 476 U. S. 1, 4 (1986), in turn quoting Eddings, supra, at 114). Applying these principles, the Court held that the jury instructions and verdict forms at issue in the case violated the Constitution because, read naturally, they told the jury that it could not find a particular circumstance to be mitigating unless all 12 jurors agreed that the mitigating circumstance had been proved to exist. Mills, 486 U. S., at 380-381, 384. If, for example, the defense presents evidence of three potentially mitigating considerations, some jurors may believe that only the first is mitigating, some only the second, and some only the third. But if even one of the jurors believes that one of the three mitigating considerations exists, but that he is barred from considering it because the other jurors disagree, the Court held, the Constitution forbids imposition of the death penalty. See id., at 380, 384; see also McKoy v. North Carolina, 494 U. S. 433, 442-443 (1990) ("Mills requires that each juror be permitted to consider and give effect to ... all mitigating evidence in deciding ... whether aggravating circumstances outweigh mitigating circumstances ... "). Because the instructions in Mills would have led a reasonable juror to believe the contrary, the Court held that the sentencing proceeding violated the Constitution. 486 U. S., at 374-375.B In evaluating the Court of Appeals' determination here, we have examined the jury instructions and verdict forms at issue in Mills and compared them with those used in the present case. In the Mills sentencing phase, the trial judge instructed the jury to fill out a verdict form that had three distinct parts. Section I set forth a list of 10 specific aggravating circumstances next to which were spaces where the jury was to mark "yes" or "no." Just above the list, the form said: "Based upon the evidence we unanimously find that each of the following aggravating circumstances which is marked 'yes' has been proven ... and each aggravating circumstance which is marked 'no' has not been proven ... ." 486 U. S., at 384-385 (emphasis added; internal quotation marks omitted).Section II set forth a list of eight potentially mitigating circumstances (seven specific circumstances and the eighth designated as "other") next to which were spaces where the jury was to mark "yes" or "no." Just above the list the form said: "Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked 'yes' has been proven to exist ... and each mitigating circumstance marked 'no' has not been proven ... ." Id., at 387 (emphasis added; internal quotation marks omitted).Section III set forth the overall balancing question, along with spaces for the jury to mark "yes" or "no." It said: "Based on the evidence we unanimously find that it has been proven ... that the mitigating circumstances marked 'yes' in Section II outweigh the aggravating circumstances marked 'yes' in Section I." Id., at 388-389 (emphasis added; internal quotation marks omitted). Explaining the forms, the judge instructed the jury with an example. He told the jury that it should mark " 'yes' " on the jury form if it " 'unanimously' " concluded that an aggravating circumstance had been proved. Id., at 378. Otherwise, he said, " 'of course you must answer no.' " Ibid. (emphasis deleted). These instructions, together with the forms, told the jury to mark "yes" on Section II's list of mitigating factors only if the jury unanimously concluded that the particular mitigating factor had been proved, and to consider in its weighing analysis in Section III only those mitigating factors marked "yes" in Section II. Thus, as this Court found, the jury was instructed that it could consider in the ultimate weighing of the aggravating and mitigating evidence only the mitigating factors that the jury had unanimously found to exist. See id., at 380-381. The instructions and jury forms in this case differ significantly from those in Mills. The trial judge instructed the jury that the aggravating factors they would consider were the specifications that the jury had found proved beyond a reasonable doubt at the guilt phase of the trial — essentially, that each murder was committed in a course of conduct including the other crimes, and, for two of the murders, that the murder was committed with the intent to evade apprehension or punishment for another offense. 8 Tr. 2967-2972 (July 19, 1983). He then explained the concept of a "mitigating factor." After doing so, he listed examples, including that "the defendant because of a mental disease or defect ... lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Id., at 2972-2973. The court also told the jury that it could take account of "any other" mitigating consideration it found "relevant to the issue of whether the defendant should be sentenced to death." Id., at 2973. And he instructed the jury that the State bore the burden of proving beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. Id., at 2965. With respect to "the procedure" by which the jury should reach its verdict, the judge told the jury only the following:"[Y]ou, the trial jury, must consider all of the relevant evidence raised at trial, the evidence and testimony received in this hearing and the arguments of counsel. From this you must determine whether, beyond a reasonable doubt, the aggravating circumstances, which [Spisak] has been found guilty of committing in the separate counts are sufficient to outweigh the mitigating factors present in this case. "If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstance in each separate count outweighs the mitigating factors, then you must return that finding to the Court.. . . . . "On the other hand, if after considering all of the relevant evidence raised at trial, the evidence and the testimony received at this hearing and the arguments of counsel, you find that the State failed to prove beyond a reasonable doubt that the aggravating circumstances which [Spisak] has been found guilty of committing in the separate counts outweigh the mitigating factors, you will then proceed to determine which of two possible life imprisonment sentences to recommend to the Court." Id., at 2973-2975. The judge gave the jury two verdict forms for each aggravating factor. The first of the two forms said:" 'We the jury in this case ... do find beyond a reasonable doubt that the aggravating circumstance ... was sufficient to outweigh the mitigating factors present in this case." 'We the jury recommend that the sentence of death be imposed ... .' " Id., at 2975-2976.The other verdict form read:" 'We the jury ... do find that the aggravating circumstances ... are not sufficient to outweigh the mitigation factors present in this case." 'We the jury recommend that the defendant ... be sentenced to life imprisonment ... .' " Id., at 2976. The instructions and forms made clear that, to recommend a death sentence, the jury had to find, unanimously and beyond a reasonable doubt, that each of the aggravating factors outweighed any mitigating circumstances. But the instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously. Neither the instructions nor the forms said anything about how — or even whether — the jury should make individual determinations that each particular mitigating circumstance existed. They focused only on the overall balancing question. And the instructions repeatedly told the jury to "conside[r] all of the relevant evidence." Id., at 2974. In our view the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the circumstance that Mills found critical, namely,"a substantial possibility that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." 486 U. S., at 384.We consequently conclude that that the state court's decision upholding these forms and instructions was not "contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" in Mills. 28 U. S. C. §2254(d)(1). We add that the Court of Appeals found the jury instructions unconstitutional for an additional reason, that the instructions "require[d] the jury to unanimously reject a death sentence before considering other sentencing alternatives." 465 F. 3d, at 709 (citing Maples v. Coyle, 171 F. 3d 408, 416-417 (CA6 1999)). We have not, however, previously held jury instructions unconstitutional for this reason. Mills says nothing about the matter. Neither the parties nor the courts below referred to Beck v. Alabama, 447 U. S. 625 (1980), or identified any other precedent from this Court setting forth this rule. Cf. Jones v. United States, 527 U. S. 373, 379-384 (1999) (rejecting an arguably analogous claim). But see post, at 3-5 (Stevens, J., concurring in part and concurring in judgment). Whatever the legal merits of the rule or the underlying verdict forms in this case were we to consider them on direct appeal, the jury instructions at Spisak's trial were not contrary to "clearly established Federal law." 28 U. S. C. §2254(d)(1).III Spisak's second claim is that his counsel's closing argument at the sentencing phase of his trial was so inadequate as to violate the Sixth Amendment. To prevail, Spisak must show both that "counsel's representation fell below an objective standard of reasonableness," Strickland, 466 U. S., at 688, and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id., at 694. The Ohio Supreme Court held that Spisak's claim was "not well-taken on the basis of our review of the record." State v. Spisak, 36 Ohio St. 3d, at 82, 521 N. E. 2d, at 802 (citing, inter alia, Strickland, supra). The District Court concluded that counsel did a constitutionally adequate job and that "[t]here simply is not a reasonable probability that, absent counsel's alleged errors, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Spisak v. Coyle, App. to Pet. for Cert. 204a. The Court of Appeals, however, reached a contrary conclusion. It held that counsel's closing argument, measured by " 'an objective standard of reasonableness,' " was inadequate, and it asserted that "a reasonable probability exists " that adequate representation would have led to a different result. 465 F. 3d, at 703, 706 (quoting Strickland, supra, at 688). Responding to the State's petition for certiorari, we agreed to review the Court of Appeals' terse finding of a "reasonable probability" that a more adequate argument would have changed a juror's vote. In his closing argument at the penalty phase, Spisak's counsel described Spisak's killings in some detail. He acknowledged that Spisak's admiration for Hitler inspired his crimes. He portrayed Spisak as "sick," "twisted," and "demented." 8 Tr. 2896 (July 19, 1983). And he said that Spisak was "never going to be any different." Ibid. He then pointed out that all the experts had testified that Spisak suffered from some degree of mental illness. And, after a fairly lengthy and rambling disquisition about his own decisions about calling expert witnesses and preparing them, counsel argued that, even if Spisak was not legally insane so as to warrant a verdict of not guilty by reason of insanity, he nonetheless was sufficiently mentally ill to lessen his culpability to the point where he should not be executed. Counsel also told the jury that, when weighing Spisak's mental illness against the "substantial" aggravating factors present in the case, id., at 2924, the jurors should draw on their own sense of "pride" for living in "a humane society" made up of "a humane people," id., at 2897-2900, 2926-2928. That humanity, he said, required the jury to weigh the evidence "fairly" and to be "loyal to that oath" the jurors had taken to uphold the law. Id., at 2926. Spisak and his supporting amici say that this argument was constitutionally inadequate because: (1) It overly emphasized the gruesome nature of the killings; (2) it overly emphasized Spisak's threats to continue his crimes; (3) it understated the facts upon which the experts based their mental illness conclusions; (4) it said little or nothing about any other possible mitigating circumstance; and (5) it made no explicit request that the jury return a verdict against death. We assume for present purposes that Spisak is correct that the closing argument was inadequate. We nevertheless find no "reasonable probability" that a better closing argument without these defects would have made a significant difference. Any different, more adequate closing argument would have taken place in the following context: Spisak admitted that he had committed three murders and two other shootings. Spisak's defense at the guilt phase of the trial consisted of an effort by counsel to show that Spisak was not guilty by reason of insanity. And counsel, apparently hoping to demonstrate Spisak's mentally defective condition, called him to the stand. Spisak testified that he had shot and killed Horace Rickerson, Timothy Sheehan, and Brian Warford. He also admitted that he had shot and tried to kill John Hardaway, and shot at Coletta Dartt. He committed these crimes, he said, because he was a follower of Adolf Hitler, who was Spisak's "spiritual leader" in a "war" for "survival" of "the Aryan people." 4 id., at 1343-1344, 1396 (July 5, 1983). He said that he had purchased guns and stockpiled ammunition to further this war. Id., at 1406-1408. And he had hoped to "create terror" at Cleveland State University, because it was "one of the prime targets" where the "Jews and the system ... are brainwashing the youth." Id., at 1426-1428. Spisak then said that in February 1982 he had shot Rickerson, who was black, because Rickerson had made a sexual advance on Spisak in a university bathroom. He expressed satisfaction at having "eliminated that particular threat ... to me and to the white race." 5 id., at 1511 (July 7, 1983). In June he saw a stranger, John Hardaway, on a train platform and shot him seven times because he had been looking for a black person to kill as "blood atonement" for a recent crime against two white women. 4 id., at 1416 (July 5, 1983). He added that he felt "good" after shooting Hardaway because he had "accomplished something," but later felt "[k]ind of bad" when he learned that Hardaway had survived. Id., at 1424-1425. In August 1982, Spisak shot at Coletta Dartt because, he said, he heard her "making some derisive remarks about us," meaning the Nazi Party. Id., at 1432-1435. Later that August, he shot and killed Timothy Sheehan because he "thought he was one of those Jewish professors ... that liked to hang around in the men's room and seduce and pervert and subvert the young people that go there." 5 id., at 1465-1466 (July 7, 1983). Spisak added that he was "sorry about that" murder because he later learned Sheehan "wasn't Jewish like I thought he was." Ibid. And three days later, while on a "search and destroy mission," he shot and killed Brian Warford, a young black man who "looked like he was almost asleep" in a bus shelter, to fulfill his "duty" to "inflict the maximum amount of casualties on the enemies." Id., at 1454-1455, 1478. Spisak also testified that he would continue to commit similar crimes if he had the chance. He said about Warford's murder that he "didn't want to get caught that time because I wanted to be able to do it again and again and again and again." Id., at 1699 (July 8, 1983). In a letter written to a friend, he called the murders of Rickerson and Warford "the finest thing I ever did in my whole life" and expressed a wish that he "had a human submachine gun right now so I could exterminate" black men "and watch them scream and twitch in agony." Id., at 1724-1725. And he testified that, if he still had his guns, he would escape from jail, "go out and continue the war I started," and "continue to inflict the maximum amount of damage on the enemies as I am able to do." Id., at 1780-1781. The State replied by attempting to show that Spisak was lying in his testimony about the Nazi-related motives for these crimes. The State contended instead that the shootings were motivated by less unusual purposes, such as robbery. See id., at 1680, 1816-1818. The defense effort to show that Spisak was not guilty by reason of insanity foundered when the trial judge refused to instruct the jury to consider that question and excluded expert testimony regarding Spisak's mental state. The defense's expert witness, Dr. Oscar Markey, had written a report diagnosing Spisak as suffering from a "schizotypal personality disorder" and an "atypical psychotic disorder," and as, at times, "unable to control his impulses to assault." 6 id., at 1882-1883, 1992 (July 11, 1983). His testimony was somewhat more ambiguous during a voir dire, however. On cross-examination, he conceded that he could not say Spisak failed Ohio's sanity standard at the time of the murders. After Markey made the same concession before the jury, the court granted the prosecution's renewed motion to exclude Markey's testimony and instructed the jury to disregard the testimony that it heard. And the court excluded the defense's proffered reports from other psychologists and psychiatrists who examined Spisak, because none of the reports said that Spisak met the Ohio insanity standard at the time of the crimes. Id., at 1898-1899, 1911-1912, 1995; id., at 2017, 2022 (July 12, 1983). During the sentencing phase of the proceedings, defense counsel called three expert witnesses, all of whom testified that Spisak suffered from some degree of mental illness. Dr. Sandra McPherson, a clinical psychologist, said that Spisak suffered from schizotypal and borderline personality disorders characterized by bizarre and paranoid thinking, gender identification conflict, and emotional instability. She added that these defects "substantially impair his ability to conform himself" to the law's requirements. 8 id., at 2428-2429, 2430-2441 (July 16, 1983). Dr. Kurt Bertschinger, a psychiatrist, testified that Spisak suffered from a schizotypal personality disorder and that "mental illness does impair his reason to the extent that he has substantial inability to know wrongfulness, or substantial inability to refrain." Id., at 2552-2556. Dr. Markey, whose testimony had been stricken at the guilt phase, again testified and agreed with the other experts' diagnoses. Id., at 2692-2693, 2712-2713 (July 18, 1983). In light of this background and for the following reasons, we do not find that the assumed deficiencies in defense counsel's closing argument raise "a reasonable probability that," but for the deficient closing, "the result of the proceeding would have been different." Strickland, 466 U. S., at 694. We therefore cannot find the Ohio Supreme Court's decision rejecting Spisak's ineffective-assistance-of-counsel claim to be an "unreasonable application" of the law "clearly established" in Strickland. §2254(d)(1). First, since the sentencing phase took place immediately following the conclusion of the guilt phase, the jurors had fresh in their minds the government's evidence regarding the killings — which included photographs of the dead bodies, images that formed the basis of defense counsel's vivid descriptions of the crimes — as well as Spisak's boastful and unrepentant confessions and his threats to commit further acts of violence. We therefore do not see how a less descriptive closing argument with fewer disparaging comments about Spisak could have made a significant difference. Similarly fresh in the jurors' minds was the three defense experts' testimony that Spisak suffered from mental illness. The jury had heard the experts explain the specific facts upon which they had based their conclusions, as well as what they had learned of his family background and his struggles with gender identity. And the jury had heard the experts draw connections between his mental illness and the crimes. We do not see how it could have made a significant difference had counsel gone beyond his actual argument — which emphasized mental illness as a mitigating factor and referred the jury to the experts' testimony — by repeating the facts or connections that the experts had just described. Nor does Spisak tell us what other mitigating factors counsel might have mentioned. All those he proposes essentially consist of aspects of the "mental defect" factor that the defense experts described. Finally, in light of counsel's several appeals to the jurors' sense of humanity — he used the words "humane people" and "humane society" 10 times at various points in the argument — we cannot find that a more explicit or more elaborate appeal for mercy could have changed the result, either alone or together with the other circumstances just discussed. Thus, we conclude that there is not a reasonable probability that a more adequate closing argument would have changed the result, and that the Ohio Supreme Court's rejection of Spisak's claim was not "contrary to, or ... an unreasonable application of" Strickland. 28 U. S. C. §2254(d)(1). Spisak contends that the deferential standard of review under §2254(d)(1) should not apply to this claim because the Ohio Supreme Court may not have reached the question whether counsel's closing argument caused Spisak prejudice. That is, the Ohio Supreme Court's summary rejection of this claim did not indicate whether that court rested its conclusion upon a finding (1) that counsel was not ineffective, or (2) that a better argument would not have made a difference, or (3) both. See State v. Spisak, 36 Ohio St. 3d, at 82, 521 N. E. 2d, at 802. Spisak argues that, under these circumstances, a federal court should not defer to a state court that may not have decided a question, but instead should decide the matter afresh. Lower federal courts have rejected arguments similar to Spisak's. See, e.g., Hennon v. Cooper, 109 F. 3d 330, 334-335 (CA7 1997); see also Weeks v. Angelone, 528 U. S. 225, 231, 237 (2000) (applying the §2254(d) standard in case involving a state court's summary denial of a claim, though not a Strickland claim, and without full briefing regarding whether or how §2254(d) applied to a summary decision); Chadwick v. Janecka, 312 F. 3d 597, 605-606 (CA3 2002) (Alito, J.) (relying on Weeks in holding that §2254(d) applies where a state court denies a claim on the merits without giving any indication how it reached its decision); see generally 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure §32.2, pp. 1574-1579 (5th ed. 2005 and 2008 Supp.). However, we need not decide whether deference under §2254(d)(1) is required here. With or without such deference, our conclusion is the same. For these reasons, the judgment of the Court of Appeals for the Sixth Circuit is reversed.It is so ordered. KEITH SMITH, WARDEN, PETITIONER v. FRANK G. SPISAK, Jr.on writ of certiorari to the united states court of appeals for the sixth circuit[January 12, 2010] Justice Stevens, concurring in part and concurring in the judgment. In my judgment the Court of Appeals correctly concluded that two errors that occurred during Spisak's trial violated clearly established federal law. First, the jury instructions impermissibly required that the jury unanimously reject a death sentence before considering other sentencing options. Second, the closing argument of Spisak's counsel was so egregious that it was constitutionally deficient under any standard. Nevertheless, for the reasons set forth in Part III of the Court's opinion, ante, at 11-15, I agree that these errors did not prejudice Spisak and thus he is not entitled to relief.I The jury instructions given during Spisak's penalty phase, described in the Court's opinion, ante, at 6-8, are fairly read to require the jury first to consider whether the death penalty is warranted — i.e., whether the aggravating factors outweigh the mitigating factors — before moving on to consider whether instead a lesser penalty — i.e., one of two available life sentences — is appropriate. Consistent with Ohio law at the time of Spisak's trial,1 the jury was told that it must reach its decision unanimously. The jury was not instructed on the consequence of their failure to agree unanimously that Spisak should be sentenced to death. Spisak and the Court of Appeals both described these instructions as "acquittal first" because they would have led a reasonable jury to believe that it first had to "acquit" the defendant of death — unanimously — before it could give effect to a lesser penalty. Following its prior decision in Davis v. Mitchell, 318 F. 3d 682 (CA6 2003), in which it struck down "virtually identical" jury instructions, Spisak v. Mitchell, 465 F. 3d 684, 710 (CA6 2006), the Court of Appeals concluded that the instructions given during Spisak's penalty phase were impermissible because they "require[d] the jury to unanimously reject a death sentence before considering other sentencing alternatives," id., at 709. In Davis, the court had explained that an instruction that requires a capital jury to "first unanimously reject the death penalty before it can consider a life sentence ... precludes the individual jury from giving effect to mitigating evidence ... ." 318 F. 3d, at 689. The source of this constitutional infirmity, the court decided, was our decision in Mills v. Maryland, 486 U. S. 367 (1988). For the reasons cogently examined in Justice Breyer's opinion, ante, at 5-9, I agree that Mills does not clearly establish that the instructions at issue were unconstitutional. But, in my view, our decision in Beck v. Alabama, 447 U. S. 625 (1980), does.2 In Beck we held that the death penalty may not be imposed "when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict." Id., at 627 (internal quotation marks omitted). At that time, the Alabama death penalty statute had been "consistently construed to preclude any lesser included offense instructions in capital cases." Id., at 629, n. 3. Thus, the Alabama jury was "given the choice of either convicting the defendant of the capital crime, in which case it [was] required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime." Id., at 628-629. Because of the unique features of Alabama's capital punishment system,3 Beck's jury believed that either it had to convict Beck, thus sending him to his death, or acquit him, thus setting him free. The jury was not presented with the "third option" of convicting him of a noncapital offense, thus ensuring that he would receive a substantial punishment but not receive the death penalty. Id., at 642. We concluded that the false choice before the jury — death or acquit--"introduce[d] a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case." Id., at 643. In other words,"the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason — its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason — that, whatever his crime, the defendant does not deserve death." Id., at 642-643. Although Beck dealt with guilt-phase instructions, the reach of its holding is not so limited. The "third option" we discussed in Beck was, plainly, a life sentence. Moreover, the unusual features of the Alabama capital sentencing scheme collapsed the guilt and penalty phases before the jury (but not before the judge). Our concern in Beck was that presenting the jury with only two options — death or no punishment — introduced a risk of arbitrariness and error into the deliberative process that the Constitution could not abide in the capital context. See Spaziano v. Florida, 468 U. S. 447, 455 (1984) ("The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence"). We held, therefore, that the jury must be given a meaningful opportunity to consider and embrace the equivalent of a life-sentence when the evidence supports such an option. The acquittal-first jury instructions used during Spisak's penalty phase interposed before the jury the same false choice that our holding in Beck prohibits. By requiring Spisak's jury to decide first whether the State had met its burden with respect to the death sentence, and to reach that decision unanimously, the instructions deprived the jury of a meaningful opportunity to consider the third option that was before it, namely, a life sentence. Indeed, these instructions are every bit as pernicious as those at issue in Beck because they would have led individual jurors (falsely) to believe that their failure to agree might have resulted in a new trial and that, in any event, they could not give effect to their determination that a life sentence was appropriate unless and until they had first convinced each of their peers on the jury to reject the death sentence. Admittedly, Spisak has never identified Beck as the source of the constitutional infirmity at issue in this case, nor did the courts below cite or rely upon it. But Spisak has consistently pressed his argument in terms that are wholly consistent with Beck. On direct appeal he contended, for example, that he:"was severely prejudiced by the erroneous jury forms because the jurors were never informed of what would happen if they were unable to reach a unanimous decision. That may have led to irreparable speculation that if they failed to agree, Frank Spisak would be freed or have a new trial or sentencing hearing. Such improper speculation may have led those not in agreement with death to go along with a majority. The jury should have been instructed that if they were unable to unanimously agree to death they must return a verdict of one of the life sentences or in the alternative, the court would impose a life sentence." Exh. 28D, 16 Record 391 (Brief for Supreme Court of Ohio).The untenable choice Spisak describes is perfectly analogous to the quandary, discussed above, that we described in Beck. See also 447 U. S., at 644 ("It is extremely doubtful that juries will understand the full implications of a mistrial or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense" (footnote omitted)). Spisak and the Court of Appeals both correctly assailed the jury instructions at issue in this case, but in my view Beck provides the proper basis in clearly established federal law to conclude the instructions were unconstitutional.II Petitioner defends Spisak's counsel's closing argument as a reasonable strategic decision "to draw the sting out of the prosecution's argument and gain credibility with the jury by conceding the weaknesses of his own case." Brief for Petitioner 37. I agree that such a strategy is generally a reasonable one and, indeed, was a reasonable strategy under the difficult circumstances of this case. Even Spisak concedes that his counsel "faced an admittedly difficult case in closing argument in the penalty phase." Brief for Respondent 43. But, surely, a strategy can be executed so poorly as to render even the most reasonable of trial tactics constitutionally deficient under Strickland v. Washington, 466 U. S. 668 (1984). And this is such a case. It is difficult to convey how thoroughly egregious counsel's closing argument was without reproducing it in its entirety. The Court's assessment of the closing as "lengthy and rambling" and its brief description of its content, see ante, at 10, does not accurately capture the catastrophe of counsel's failed strategy. Suffice it to say that the argument shares far more in common with a prosecutor's closing than with a criminal defense attorney's. Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct. See Brief for Steven Lubet et al. as Amici Curiae 15-16 (observing that counsel's closing argument "would have been improper even coming from the prosecutor"). A few examples are in order. Presumably to take the "sting" out of the prosecution's case, Brief for Petitioner 37, counsel described his client's acts in vivid detail to the jury:"[Y]ou can smell almost the blood. You can smell, if you will, the urine. You are in a bathroom, and it is death, and you can smell the death ... and you can feel, the loneliness of that railroad platform ... and we can all know the terror that [the victim] felt when he turned and looked into those thick glasses and looked into the muzzle of a gun that kept spitting out bullets ... And we can see a relatively young man cut down with so many years to live, and we could remember his widow, and we certainly can remember looking at his children ... There are too many family albums. There are too many family portraits dated 1982 that have too many empty spaces. And there is too much terror left in the hearts of those that we call lucky."4 465 F. 3d, at 704-795 (internal quotation marks omitted).Presumably to "gain credibility" with the jury, Brief of Petitioner 37, counsel argued that his client deserved no sympathy for his actions:"Sympathy, of course, is not part of your consideration. And even if it was, certainly, don't look to him for sympathy, because he demands none. And, ladies and gentlemen, when you turn and look at Frank Spisak, don't look for good deeds, because he has done none. Don't look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different." 465 F. 3d, at 705 (internal quotation marks omitted). And then the strategy really broke down: At no point did counsel endeavor to direct his negative statements about his client toward an express appeal for leniency.5 On the contrary, counsel concluded by telling the jury that "whatever you do, we are going to be proud of you," ibid. (internal quotation marks omitted), which I take to mean that, in counsel's view, "either outcome, death or life, would be a valid conclusion," ibid. Spisak's crimes, and the seemingly unmitigated hatred motivating their commission, were truly awful. But that does not excuse a lawyer's duty to represent his client within the bounds of prevailing professional norms. The mere fact that counsel, laudably, may have had a "strategy" to build rapport with the jury and lessen the impact of the prosecution's case, does not excuse counsel's utter failure to achieve either of these objectives through his closing argument. In short, counsel's argument grossly transgressed the bounds of what constitutionally competent counsel would have done in a similar situation.III Notwithstanding these two serious constitutional errors, I agree with the Court that these errors do not entitle Spisak to relief. As Justice Breyer's discussion in Part III makes vividly clear, see ante, at 11-14, Spisak's own conduct alienated and ostracized the jury, and his crimes were monstrous. In my judgment even the most skillful of closing arguments — even one befitting Clarence Darrow — would not have created a reasonable probability of a different outcome in this case. Similarly, in light of Spisak's conduct before the jury and the gravity of the aggravating circumstances of the offense, the instructional error was also harmless because it did not have a substantial and injurious effect on this record, Brecht v. Abrahamson, 507 U. S. 619, 623 (1993). Accordingly, I concur in the judgment and concur in the Court's discussion of prejudice in Part III of its opinion.FOOTNOTESFootnote 1 Ohio no longer uses the type of jury instructions at issue in this case. In 1996 the Ohio Supreme Court instructed that "[i]n Ohio, a solitary juror may prevent a death penalty recommendation by finding that the aggravating circumstances in the case do not outweigh the mitigating factors. Jurors from this point forward should be so instructed." State v. Brooks, 75 Ohio St. 3d 148, 162, 661 N. E. 2d 1030, 1042. Although the Brooks decision signaled a change in Ohio's capital jury instructions, it was not a change in state law: One juror had the power to prevent a death penalty recommendation before Brooks. See State v. Springer, 63 Ohio St. 3d 167, 172, 586 N. E. 2d 96, 100 (1992) (holding that an offender must be sentenced to life if the penalty-phase jury deadlocks). Thus, consistent with our view that "accurate sentencing information is an indispensable prerequisite to a [jury's] determination of whether a defendant shall live or die," Gregg v. Georgia, 428 U. S. 153, 190 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.), the Ohio high court laudably improved upon the accuracy of Ohio capital jury instructions in Brooks. Footnote 2 Notably, Beck substantially predates Spisak's trial and thus my application of Beck obviates any discussion on when federal law is established for Antiterrorism and Effective Death Penalty Act of 1996 purposes, see ante, at 3. Regardless, in accordance with the view I expressed in Williams v. Taylor, 529 U. S. 362, 379-380 (2000) (opinion of Stevens, J.), I would conclude that our decision in Mills, decided before Spisak's conviction became final, is also available to him.Footnote 3 Under Alabama law, the judge conducts a separate penalty-phase proceeding after the jury has returned a conviction on a capital offense. Beck, 447 U. S., at 629. Thus, the jury reasonably believed that its verdict would set the defendant's punishment at death.Footnote 4 To make matters worse, these graphic and emotionally charged descriptions of Spisak's crimes were irrelevant under state law even for purposes of the State's case for aggravating circumstances. See State v. Wogenstahl, 75 Ohio St. 3d 344, 356, 662 N. E. 2d 311, 322 (1996) ("[T]he nature and circumstances of the offense may only enter into the statutory weighing process on the side of mitigation"); see also State v. Johnson, 24 Ohio St. 3d 87, 93, 494 N. E. 2d 1061, 1066 (1986) (explaining that statutory aggravating circumstances should be narrowly construed); Ohio Rev. Code Ann. §2929.04(A) (2006) (identifying 10 aggravating circumstances but not including heinous circumstances of offense).Footnote 5 Counsel did attempt to appeal to the jury's sense of humanity, perhaps implicitly suggesting that humane people do not condemn others, especially those with mental illness, to death. App. to Pet. for Cert. 339a-341a. But counsel never requested a life sentence on behalf of his client. |
1 | This litigation began in 1952 when Arizona invoked this Court's original jurisdiction to settle a dispute with California over the extent of each State's right to use water from the Colorado River system. The United States intervened, seeking water rights on behalf of, among others, five Indian reservations, including the Fort Yuma (Quechan) Indian Reservation, the Colorado River Indian Reservation, and the Fort Mojave Indian Reservation. The first round of the litigation culminated in Arizona v. California(Arizona I), in which the Court held that the United States had reserved water rights for the five reservations, id., at 565, 599—601; that those rights must be considered present perfected rights and given priority because they were effective as of the time each reservation was created, id., at 600; and that those rights should be based on the amount of each reservation's practicably irrigable acreage as determined by the Special Master, ibid. In its 1964 decree, the Court specified the quantities and priorities of the water entitlements for the parties and the Tribes, Arizona v. Californiabut held that the water rights for the Fort Mojave and Colorado River Reservations would be subject to appropriate adjustment by future agreement or decree in the event the respective reservations' disputed boundaries were finally determined, id., at 345. The Court's 1979 supplemental decree again deferred resolution of reservation boundary disputes and allied water rights claims. Arizona v. California(per curiam). In Arizona v. California(Arizona II), the Court concluded, among other things, that various administrative actions taken by the Secretary of the Interior, including his 1978 order recognizing the entitlement of the Quechan Tribe (Tribe) to the disputed boundary lands of the Fort Yuma Reservation did not constitute final determinations of reservation boundaries for purposes of the 1964 decree. Id., at 636—638. The Court also held in Arizona II that certain lands within undisputed reservation boundaries, for which the United States had not sought water rights in Arizona I–the so-called "omitted lands"–were not entitled to water under res judicata principles. Id., at 626. The Court's 1984 supplemental decree again declared that water rights for all five reservations would be subject to appropriate adjustments if the reservations' boundaries were finally determined. Arizona v. California. In 1987, the Ninth Circuit dismissed, on grounds of the United States' sovereign immunity, a suit by California state agencies that could have finally determined the reservations' boundaries. This Court affirmed the Ninth Circuit's judgment by an equally divided vote.The present phase of the litigation concerns claims by the Tribe and the United States on the Tribe's behalf for increased water rights for the Fort Yuma Reservation. These claims rest on the contention that the Fort Yuma Reservation encompasses some 25,000 acres of disputed boundary lands not attributed to that reservation in earlier stages of the litigation. The land in question was purportedly ceded to the United States under an 1893 Agreement with the Tribe. In 1936, the Department of the Interior's Solicitor Margold issued an opinion stating that, under the 1893 Agreement, the Tribe had unconditionally ceded the lands. The Margold Opinion remained the Federal Government's position for 42 years. In 1946, Congress enacted the Indian Claims Commission Act, establishing a tribunal with power to decide tribes' claims against the Government. The Tribe brought before the Commission an action, which has come to be known as Docket No. 320, challenging the 1893 Agreement on two mutually exclusive grounds: (1) that it was void, in which case the United States owed the Tribe damages essentially for trespass, and (2) that it constituted an uncompensated taking of tribal lands. In 1976, the Commission transferred Docket No. 320 to the Court of Claims. In the meantime, the Tribe asked the Interior Department to reconsider the Margold Opinion. Ultimately, in a 1978 Secretarial Order, the Department changed its position and confirmed the Tribe's entitlement to most of the disputed lands. A few months after this Court decided in Arizona II that the 1978 Secretarial Order did not constitute a final determination of reservation boundaries, the United States and the Tribe entered into a settlement of Docket No. 320, which the Court of Claims approved and entered as its final judgment. Under the settlement, the United States agreed to pay the Tribe $15 million in full satisfaction of the Tribe's Docket No. 320 claims, and the Tribe agreed that it would not further assert those claims against the Government. In 1989, this Court granted the motion of Arizona, California, and two municipal water districts (State parties) to reopen the 1964 decree to determine whether the Fort Yuma, Colorado River, and Fort Mojave Reservations were entitled to claim additional boundary lands and, if so, additional water rights. The State parties assert here that the Fort Yuma claims of the Tribe and the United States are precluded by Arizona I and by the Claims Court consent judgment in Docket No. 320. The Special Master has prepared a report recommending that the Court reject the first ground for preclusion but accept the second. The State parties have filed exceptions to the Special Master's first recommendation, and the United States and the Tribe have filed exceptions to the second. The Master has also recommended approval of the parties' proposed settlements of claims for additional water for the Fort Mojave and Colorado River Reservations, and has submitted a proposed supplemental decree to effectuate the parties' accords. Held: 1. In view of the State parties' failure to raise the preclusion argument earlier in the litigation, despite ample opportunity and cause to do so, the claims of the United States and the Tribe to increased water rights for the disputed boundary lands of the Fort Yuma Reservation are not foreclosed by Arizona I. According to the State parties, those claims are precluded by the finality rationale this Court employed in dismissing the "omitted lands" claims in Arizona II, 460 U.S., at 620—621, 626—627, because the United States could have raised the Fort Yuma Reservation boundary lands claims in Arizona I, but deliberately decided not to do so. In rejecting this argument, the Special Master pointed out that the Government did not assert such claims in Arizona I because, at that time, it was bound to follow the Margold Opinion, under which the Tribe had no claim to the boundary lands. The Master concluded that the 1978 Secretarial Order, which overruled the Margold Opinion and recognized the Tribe's beneficial ownership of the boundary lands, was a circumstance not known in 1964, one that warranted an exception to the application of res judicata doctrine. In so concluding, the Special Master relied on an improper ground: The 1978 Secretarial Order does not qualify as a previously unknown circumstance that can overcome otherwise applicable preclusion principles. That order did not change the underlying facts in dispute; it simply embodied one party's changed view of the import of unchanged facts. However, the Court agrees with the United States and the Tribe that the State parties' preclusion defense is inadmissible. The State parties did not raise the defense in 1978 in response to the United States' motion for a supplemental decree granting additional water rights for the Fort Yuma Reservation or in 1982 when Arizona II was briefed and argued. Unaccountably, the State parties first raised their res judicata plea in 1989, when they initiated the current round of proceedings. While preclusion rules are not strictly applicable in the context of a single ongoing original action, the principles upon which they rest should inform the Court's decision. Arizona II, 460 U.S., at 619. Those principles rank res judicata an affirmative defense ordinarily lost if not timely raised. See Fed. Rule Civ. Proc. 8(c). The Court disapproves the notion that a party may wake up and effectively raise a defense years after the first opportunity to raise it so long as the party was (though no fault of anyone else) in the dark until its late awakening. Nothing in Arizona II supports the State parties' assertion that the Court expressly recognized the possibility that future Fort Yuma boundary lands claims might be precluded. 460 U.S., at 638, distinguished. Of large significance, this Court's 1979 and 1984 supplemental decrees anticipated that the disputed boundary issues for all five reservations, including Fort Yuma, would be "finally determined" in some forum, not by preclusion but on the merits. The State parties themselves stipulated to the terms of the 1979 supplemental decree and appear to have litigated the Arizona II proceedings on the understanding that the boundary disputes should be resolved on the merits, see, e.g., 460 U.S., at 634. Finally, the Court rejects the State parties' argument that this Court should now raise the preclusion question sua sponte. The special circumstances in which such judicial initiative might be appropriate are not present here. See United States v. Sioux Nation(Rehnquist, J., dissenting). Pp. 11—17. 2. The claims of the United States and the Tribe to increased water rights for the disputed boundary lands of the Fort Yuma Reservation are not precluded by the consent judgment in Docket No. 320. The Special Master agreed with the State parties' assertion to the contrary. He concluded that, because the settlement extinguished the Tribe's claim to title in the disputed lands, the United States and the Tribe cannot seek additional water rights based on the Tribe's purported beneficial ownership of those lands. Under standard preclusion doctrine, the Master's recommendation cannot be sustained. As between the Tribe and the United States, the settlement indeed had, and was intended to have, claim-preclusive effect. But settlements ordinarily lack issue-preclusive effect. This differentiation is grounded in basic res judicata doctrine. The general rule is that issue preclusion attaches only when an issue is actually litigated and determined by a valid and final judgment. See United States v. International Building Co.—506. The State parties assert that common-law principles of issue preclusion do not apply in the special context of Indian land claims. They maintain that the Indian Claims Commission Act created a special regime of statutory preclusion. This Court need not decide whether some consent judgments in that distinctive context might bar a tribe from asserting title even in discrete litigation against third parties, for the 1983 settlement of Docket No. 320 plainly could not qualify as such a judgment. Not only was the issue of ownership of the disputed boundary lands not actually litigated and decided in Docket No. 320, but, most notably, the Tribe proceeded on alternative and mutually exclusive theories of recovery, taking and trespass. The consent judgment embraced all of the Tribe's claims with no election by the Tribe of one theory over the other. The Court need not accept the United States' invitation to look behind the consent judgment at presettlement stipulations and memoranda purportedly demonstrating that the judgment was grounded on the parties' shared view, after the 1978 Secretarial Order, that the disputed lands belong to the Tribe. Because the settlement was ambiguous as between mutually exclusive theories of recovery, the consent judgment is too opaque to serve as a foundation for issue preclusion. Pp. 17—22. 3. The Court accepts the Special Master's recommendations and approves the parties' proposed settlements of the disputes respecting additional water for the Fort Mojave and Colorado River Reservations. Pp. 22—23.Exception of State parties overruled; Exceptions of United States and Quechan Tribe sustained; Special Master's recommendations to approve parties' proposed settlements respecting Fort Mojave and Colorado River Reservations are adopted, and parties are directed to submit any objections they may have to Special Master's proposed supplemental decree; Outstanding water rights claims associated with disputed Fort Yuma Reservation boundary lands remanded. Ginsburg, J., delivered the opinion of the Court, in which Stevens, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which O'Connor and Thomas, JJ., joined. JUSTICE GINSBURG delivered the opinion of the Court. In the latest chapter of this long-litigated original-jurisdiction case, the Quechan Tribe (Tribe) and the United States on the Tribe's behalf assert claims for increased rights to water from the Colorado River. These claims are based on the contention that the Fort Yuma (Quechan) Indian Reservation encompasses some 25,000 acres of disputed boundary lands not attributed to that reservation in earlier stages of the litigation. In this decision, we resolve a threshold question regarding these claims to additional water rights: Are the claims precluded by this Court's prior decision in Arizona v. California (Arizona I), or by a consent judgment entered by the United States Claims Court in 1983? The Special Master has prepared a report recommending that the Court reject the first ground for preclusion but accept the second. We reject both grounds for preclusion and remand the case to the Special Master for consideration of the claims for additional water rights appurtenant to the disputed boundary lands.I This litigation began in 1952 when Arizona invoked our original jurisdiction to settle a dispute with California over the extent of each State's right to use water from the Colorado River system. Nevada intervened, seeking a determination of its water rights, and Utah and New Mexico were joined as defendants. The United States intervened and sought water rights on behalf of various federal establishments, including five Indian reservations: the Chemehuevi Indian Reservation, the Cocopah Indian Reservation, the Fort Yuma (Quechan) Indian Reservation, the Colorado River Indian Reservation, and the Fort Mojave Indian Reservation. The Court appointed Simon Rifkind as Special Master. The first round of the litigation culminated in our opinion in Arizona I. We agreed with Special Master Rifkind that the apportionment of Colorado River water was governed by the Boulder Canyon Project Act of 1928, 43 U.S.C. § 617 et seq., and by contracts entered into by the Secretary of the Interior pursuant to the Act. We further agreed that the United States had reserved water rights for the five reservations under the doctrine of Winters v. United States. See Arizona I, 373 U.S., at 565, 599—601. Because the Tribes' water rights were effective as of the time each reservation was created, the rights were considered present perfected rights and given priority under the Act. Id., at 600. We also agreed with the Master that the reservations' water rights should be based on the amount of practicably irrigable acreage on each reservation and sustained his findings as to the relevant acreage for each reservation. Ibid. Those findings were incorporated in our decree of March 9, 1964, which specified the quantities and priorities of the water entitlements for the States, the United States, and the Tribes. Arizona v. California. The Court rejected as premature, however, Master Rifkind's recommendation to determine the disputed boundaries of the Fort Mojave and Colorado River Indian Reservations; we ordered, instead, that water rights for those two reservations "shall be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined." Id., at 345. In 1978, the United States and the State parties jointly moved this Court to enter a supplemental decree identifying present perfected rights to the use of mainstream water in each State and their priority dates. The Tribes then filed motions to intervene, and the United States ultimately joined the Tribes in moving for additional water rights for the five reservations. Again, the Court deferred resolution of reservation boundary disputes and allied water rights claims. The supplemental decree we entered in 1979 set out the water rights and priority dates for the five reservations under the 1964 decree, but added that the rights for all five reservations (including the Fort Yuma Indian Reservation at issue here) "shall continue to be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined." Arizona v. California(per curiam). The Court then appointed Senior Circuit Judge Elbert P. Tuttle as Special Master and referred to him the Tribes' motions to intervene and other pending matters. Master Tuttle issued a report recommending that the Tribes be permitted to intervene, and concluding that various administrative actions taken by the Secretary of the Interior constituted "final determinations" of reservation boundaries for purposes of allocating water rights under the 1964 decree. (Those administrative actions included a 1978 Secretarial Order, discussed in greater detail infra, at 9, which recognized the Quechan Tribe's entitlement to the disputed boundary lands of the Fort Yuma Reservation.) Master Tuttle also concluded that certain lands within the undisputed reservation boundaries but for which the United States had not sought water rights in Arizona I–the so-called "omitted lands"–had in fact been practicably irrigable at the time of Arizona I and were thus entitled to water. On these grounds, Master Tuttle recommended that the Court reopen the 1964 decree to award the Tribes additional water rights. In Arizona v. California (Arizona II), the Court permitted the Tribes to intervene, but otherwise rejected Master Tuttle's recommendations. The Secretary's determinations did not qualify as "final determinations" of reservation boundaries, we ruled, because the States, agencies, and private water users had not had an opportunity to obtain judicial review of those determinations. Id., at 636—637. In that regard, we noted that California state agencies had initiated an action in the United States District Court for the Southern District of California challenging the Secretary's decisions, and that the United States had moved to dismiss that action on various grounds, including sovereign immunity. "There will be time enough," the Court stated, "if any of these grounds for dismissal are sustained and not overturned on appellate review, to determine whether the boundary issues foreclosed by such action are nevertheless open for litigation in this Court." Id., at 638. The Court also held that the United States was barred from seeking water rights for the lands omitted from presentation in the proceedings leading to Arizona I; "principles of res judicata," we said, "advise against reopening the calculation of the amount of practicably irrigable acreage." 460 U.S., at 626. In 1984, in another supplemental decree, the Court again declared that water rights for all five reservations "shall be subject to appropriate adjustments by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined." Arizona v. California. The district court litigation proceeded with the participation of eight parties: the United States, the States of Arizona and California, the Metropolitan Water District of Southern California, the Coachella Valley Water District, and the Quechan, Fort Mojave, and Colorado River Indian Tribes. The District Court rejected the United States' sovereign immunity defense; taking up the Fort Mojave Reservation matter first, the court voided the Secretary's determination of that reservation's boundaries. Metropolitan Water Dist. of S. Cal. v. United States, 628 F. Supp. 1018 (SD Cal. 1986). The Court of Appeals for the Ninth Circuit, however, accepted the United States' plea of sovereign immunity, and on that ground reversed and remanded with instructions to dismiss the entire case. Specifically, the Court of Appeals held that the Quiet Title Act, 28 U.S.C. § 2409a preserved the United States' sovereign immunity from suits challenging the United States' title "to trust or restricted Indian lands," §2409a(a), and therefore blocked recourse to the District Court by the States and state agencies. Metropolitan Water Dist. of S. Cal. v. United States, 830 F.2d 139 (1987). We granted certiorari and affirmed the Ninth Circuit's judgment by an equally divided Court. California v. United States (per curiam). The dismissal of the district court action dispelled any expectation that a "final determination" of reservation boundaries would occur in that forum. The State parties then moved to reopen the 1964 decree, asking the Court to determine whether the Fort Yuma Indian Reservation and two other reservations were entitled to claim additional boundary lands and, if so, additional water rights. Neither the United States nor the Tribes objected to the reopening of the decree, and the Court granted the motion. Arizona v. California. After the death in 1990 of the third Special Master, Robert McKay, the Court appointed Frank J. McGarr as Special Master. Special Master McGarr has now filed a report and recommendation (McGarr Report), a full understanding of which requires a discussion of issues and events specific to the Fort Yuma Indian Reservation. We now turn to those issues and events.II The specific dispute before us has its roots in an 1884 Executive Order signed by President Chester A. Arthur, designating approximately 72 square miles of land along the Colorado River in California as the Fort Yuma Indian Reservation (Reservation) for the benefit of the Quechan Tribe. The Tribe, which had traditionally engaged in farming, offered to cede its rights to a portion of the Reservation to the United States in exchange for allotments of irrigated land to individual Indians. In 1893, the Secretary of the Interior concluded an agreement with the Tribe (1893 Agreement), which Congress ratified in 1894. The 1893 Agreement provided for the Tribe's cession of a 25,000-acre tract of boundary lands on the Reservation. Language in the agreement, however, could be read to condition the cession on the performance by the United States of certain obligations, including construction within three years of an irrigation canal, allotment of irrigated land to individual Indians, sale of certain lands to raise revenues for canal construction, and opening of certain lands to the public domain. Doubts about the validity and effect of the 1893 Agreement arose as early as 1935. In that year the construction of the All-American Canal, which prompted the interstate dispute in Arizona I, see 373 U.S., at 554—555, also sparked a controversy concerning the Fort Yuma Reservation. When the Department of the Interior's Bureau of Reclamation sought to route the canal through the Reservation, the Department's Indian Office argued that the Bureau had to pay compensation to the Tribe for the right-of-way. The Secretary of the Interior submitted the matter to the Department's Solicitor, Nathan Margold. In 1936, Solicitor Margold issued an opinion (Margold Opinion) stating that, under the 1893 Agreement, the Tribe had unconditionally ceded the lands in question to the United States. 1 Dept. of Interior, Opinions of the Solicitor Relating to Indian Affairs 596, 600 (No. M—28198, Jan. 8, 1936). The Margold Opinion remained the position of the Federal Government for 42 years. In 1946, Congress enacted the Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C. § 70 et seq. (1976 ed.), establishing an Article I tribunal with power to decide claims of Indian tribes against the United States.1 See generally United States v. Dann. The Tribe filed an action before the Commission in 1951, challenging the validity and effect of the 1893 Agreement. In that action, referred to by the parties as Docket No. 320, the Tribe relied principally on two mutually exclusive grounds for relief. First, the Tribe alleged that the 1893 Agreement was obtained through fraud, coercion, and/or inadequate consideration, rendering it "wholly nugatory." Petition for Loss of Reservation in Docket No. 320 (Ind. Cl. Comm'n.), ¶¶15—16, reprinted in Brief for United States in Support of Exception, pp. 11a—27a. At the very least, contended the Tribe, the United States had failed to perform the obligations enumerated in the 1893 Agreement, rendering the cession void. Id., at ¶31. In either event, the Tribe claimed continuing title to the disputed lands and sought damages essentially for trespass. Alternatively, the Tribe alleged that the 1893 Agreement was contractually valid but constituted an uncompensated taking of tribal lands, an appropriation of lands for unconscionable consideration, and/or a violation of standards of fair and honorable dealing, for which §§2(3)—(5) of the Act authorized recovery. Id., at ¶¶19, 22, 25. According to this theory of recovery, the 1893 Agreement had indeed vested in the United States unconditional title to the disputed lands, and the Tribe sought damages as compensation for that taking. During the more than quarter-century of litigation in Docket No. 320, the Tribe vacillated between these two grounds for relief, sometimes emphasizing one and sometimes the other. See Quechan Tribe of Fort Yuma Reservation v. United States, 26 Ind. Cl. Comm'n. 15 (1971), reprinted in Brief for United States in Support of Exception, pp. 29a—34a. The Commission conducted a trial on liability, but stayed further proceedings in 1970 because legislation had been proposed in Congress that would have restored the disputed lands to the Tribe. The legislation was not enacted, and the Commission vacated the stay. In 1976, the Commission transferred the matter to the Court of Claims. In the meantime, the Tribe had asked the Department of the Interior to reconsider its 1936 Margold Opinion regarding the 1893 Agreement. In 1977, Interior Solicitor Scott Austin concluded, in accord with the 1936 opinion, that the 1893 Agreement was valid and that the cession of the disputed lands had been unconditional. Opinion of the Solicitor, No. M—36886 (Jan. 18, 1977), 84 I. D. 1 (1977) (Austin Opinion). It soon became clear both to the Tribe and to interested Members of Congress, however, that the Austin Opinion had provoked controversy within the Department, and, after the election of President Carter, the Department revisited the issue and reversed course. In 1978, without notice to the parties, Solicitor Leo Krulitz issued an opinion concluding that the 1893 Agreement had provided for a conditional cession of the disputed lands, that the conditions had not been met by the United States, and that "[t]itle to the subject property is held by the United States in trust for the Quechan Tribe." Opinion of the Solicitor, No. M—36908 (Dec. 20, 1978), 86 I. D. 3, 22 (1979) (Krulitz Opinion). On December 20, 1978, the Secretary of the Interior issued a Secretarial Order adopting the Krulitz Opinion and confirming the Tribe's entitlement to the disputed lands, with the express exception of certain lands that the United States had acquired pursuant to Act of Congress or had conveyed to third parties. The 1978 Secretarial Order caused the United States to change its position both in Docket No. 320, which was still pending in the Claims Court, and in the present litigation. Because the Secretarial Order amounted to an admission that the 1893 Agreement had been ineffective to transfer title and that the Tribe enjoyed beneficial ownership of the disputed boundary lands, the United States no longer opposed the Tribe's claim for trespass in Docket No. 320. In the present litigation, the Secretarial Order both prompted the United States to file a water rights claim for the affected boundary lands and provided the basis for the Tribe's intervention to assert a similar, albeit larger, water rights claim. See Arizona II, 460 U.S., at 632—633. Those water rights claims are the subject of the current proceedings. In August 1983, a few months after this Court decided in Arizona II that the 1978 Secretarial Order did not constitute a final determination of reservation boundaries, see supra, at 4, the United States and the Tribe entered into a settlement of Docket No. 320, which the Court of Claims approved and entered as its final judgment. Under the terms of that settlement, the United States agreed to pay the Tribe $15 million in full satisfaction of "all rights, claims, or demands which plaintiff [i.e., the Tribe] has asserted or could have asserted with respect to the claims in Docket 320." Final Judgment, Docket No. 320 (Aug. 11, 1983). The judgment further provided that "plaintiff shall be barred thereby from asserting any further rights, claims, or demands against the defendant and any future action on the claims encompassed on Docket 320." Ibid. The United States and the Tribe also stipulated that the "final judgment is based on a compromise and settlement and shall not be construed as an admission by either party for the purposes of precedent or argument in any other case." Ibid. Both the Tribe and the United States continue to recognize the Tribe's entitlement to the disputed boundary lands.III Master McGarr has issued a series of orders culminating in the report and recommendation now before the Court. He has recommended that the Court reject the claims of the United States and the Tribe seeking additional water rights for the Fort Yuma Indian Reservation. The Master rejected the State parties' contention that this Court's Arizona I decision precludes the United States and the Tribe from seeking water rights for the disputed boundary lands. He concluded, however, that the United States and the Tribe are precluded from pursuing those claims by operation of the 1983 Claims Court consent judgment. The State parties have filed an exception to the first of these preclusion recommendations, and the United States and the Tribe have filed exceptions to the second. In Part III—A, infra, we consider the exception filed by the State parties, and in Part III—B we address the exceptions filed by the United States and the Tribe. The Special Master has also recommended that the Court approve the parties' proposed settlements respecting the Fort Mojave and Colorado River Indian Reservations. No party has filed an exception to those recommendations; we address them in Part III—C, infra.A The States of Arizona and California, the Coachella Valley Water District, and the Metropolitan Water District of Southern California (State parties) argued before Special Master McGarr, and repeat before this Court, that the water rights claims associated with the disputed boundary lands of the Fort Yuma Reservation are precluded by the finality rationale this Court employed in dismissing the "omitted lands" claims in Arizona II. See supra, at 4. According to the State parties, the United States could have raised a boundary lands claim for the Fort Yuma Reservation in the Arizona I proceedings based on facts known at that time, just as it did for the Fort Mojave and Colorado River Reservations, but deliberately decided not to do so, just as it did with respect to the "omitted lands." In Arizona II, this Court rejected the United States' claim for water rights for the "omitted lands," emphasizing that "[c]ertainty of rights is particularly important with respect to water rights in the Western United States" and noting "the strong interest in finality in this case." 460 U.S., at 620. Observing that the 1964 decree determined "the extent of irrigable acreage within the uncontested boundaries of the reservations," id., at 621, n. 12, the Court refused to reconsider issues "fully and fairly litigated 20 years ago," id., at 621. The Court concomitantly held that the Tribes were bound by the United States' representation of them in Arizona I. Id., at 626—627. The Special Master rejected the State parties' preclusion argument. He brought out first the evident reason why the United States did not assert water rights claims for the Fort Yuma Reservation boundary lands in Arizona I. At that point in time, the United States was bound to follow the 1936 Margold Opinion, see supra, at 6—7, which maintained that the Tribe had no claim to those lands. "[I]t is clear," the Master stated, "that the later Secretary of the Interior opinion arbitrarily changing [the Margold] decision was a circumstance not known in 1964, thus constituting an exception to the application of the rule of res adjudicata." Special Master McGarr Memorandum Opinion and Order No. 4, pp. 6—7 (Sept. 6, 1991). Characterizing the question as "close," the Master went on to conclude that "the Tribe is not precluded from asserting water rights based on boundary land claims on [sic] this proceeding, because although the U.S. on behalf of the Tribe failed to assert such claims in the proceeding leading to the 1964 decree, a later and then unknown circumstance bars the application of the doctrine of res judicata to this issue." Id., at 7. While the Special Master correctly recognized the relevance of the Margold Opinion to the litigating stance of the United States, he ultimately relied on an improper ground in rejecting the State parties' preclusion argument. The Department of the Interior's 1978 Secretarial Order recognizing the Tribe's beneficial ownership of the boundary lands, see supra, at 9, does not qualify as a "later and then unknown circumstance" that can overcome otherwise applicable preclusion principles. The 1978 Order did not change the underlying facts in dispute; it simply embodied one party's changed view of the import of unchanged facts. Moreover, the Tribe can hardly claim to have been surprised by the Government's shift in assessment of the boundary lands ownership question, for the Tribe had been advocating just such a shift for decades. The United States and the Tribe, however, urge other grounds on which to reject the State parties' argument regarding the preclusive effect of Arizona I. The United States and the Tribe maintain that the preclusion rationale the Court applied to the "omitted lands" in Arizona II is not equally applicable to the disputed boundary lands,2 and that, in any event, the State parties have forfeited their preclusion defense. We agree that the State parties' preclusion defense is inadmissible at this late date, and therefore we do not reach the merits of that plea. The State parties could have raised the defense in 1979 in response to the United States' motion for a supplemental decree granting additional water rights for the Fort Yuma Reservation. The State parties did not do so then, nor did they raise the objection in 1982 when Arizona II was briefed and argued.3 Unaccountably, they raised the preclusion argument for the first time in 1989, when they initiated the current round of proceedings. See Exception and Brief for the State Parties 16; Motion of the State Parties to Reopen Decree in Arizona v. California, O. T. 1989, No. 8 Orig., p. 6, n. 2. The State parties had every opportunity, and every incentive, to press their current preclusion argument at earlier stages in the litigation, yet failed to do so.4 "[W]hile the technical rules of preclusion are not strictly applicable [in the context of a single ongoing original action], the principles upon which these rules are founded should inform our decision." Arizona II, 460 U.S., at 619. Those principles rank res judicata an affirmative defense ordinarily lost if not timely raised. See Fed. Rule Civ. Proc. 8(c). Counsel for the State parties conceded at oral argument that "no preclusion argument was made with respect to boundary lands" in the proceedings leading up to Arizona II, and that "after this Court's decision in Arizona II and after the Court's later decision in [Nevada v. United States, the light finally dawned on the State parties that there was a valid preclusion–or res judicata argument here with respect to Fort Yuma." Tr. of Oral Arg. 46—47. We disapprove the notion that a party may wake up because a "light finally dawned," years after the first opportunity to raise a defense, and effectively raise it so long as the party was (though no fault of anyone else) in the dark until its late awakening. The State parties assert that our prior pronouncements in this case have expressly recognized the possibility that future boundary lands claims for the Fort Yuma Reservation might be precluded. If anything, the contrary is true. Nothing in the Arizona II decision hints that the Court believed the boundary lands issue might ultimately be held precluded. Rather, the Court expressly found it "necessary to decide whether any or all of these boundary disputes have been 'finally determined' within the meaning of Article II(D)(5) … ." 460 U.S., at 631 (emphasis added). That Arizona II contains no discussion of preclusion with respect to the disputed lands is hardly surprising, given that the State parties neglected to raise that issue until six years later. The Court did note in Arizona II that in the district court proceedings the United States had asserted defenses based on "lack of standing, the absence of indispensable parties, sovereign immunity and the applicable statute of limitations," and added that "[t]here will be time enough, if any of these grounds for dismissal are sustained and not overturned on appellate review, to determine whether the boundary issues foreclosed by such [lower court] action are nevertheless open for litigation in this Court." 460 U.S., at 638 (emphasis added). This passage, however, is most sensibly read to convey that the defenses just mentioned–standing, indispensable parties, sovereign immunity, and the statute of limitations–would not necessarily affect renewed litigation in this Court. The passage contains no acknowledgment, express or implied, of a lurking preclusion issue stemming from our Arizona I disposition. Moreover, and of large significance, the 1979 and 1984 supplemental decrees anticipated that the disputed boundary issues for all five reservations, including the Fort Yuma Reservation, would be "finally determined" in some forum, not by preclusion but on the merits. See 1984 Supplemental Decree, Art. II(D)(5), Arizona v. California, 466 U.S., at 145 (Water rights for all five reservations "shall be subject to appropriate adjustments by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined."); 1979 Supplemental Decree, Art. II(D)(5), Arizona v. California, 439 U.S., at 421 (same). The State parties themselves stipulated to the terms of the supplemental decree we entered in 1979. They also appear to have litigated the Arizona II proceedings on the understanding that the boundary disputes should be resolved on the merits. See Arizona II, 460 U.S., at 634 ("[The State parties] argued … that the boundary controversies were ripe for judicial review, and they urged the Special Master to receive evidence, hear legal arguments, and resolve each of the boundary disputes, but only for the limited purpose of establishing additional Indian water rights, if any."); Report of Special Master Tuttle, O. T. 1981, No. 8 Orig., p. 57 (describing the State parties' contention "that the boundaries [of all five Reservations] have not been finally determined and that I should make a de novo determination of the boundaries for recommendation to the Court"). As late as 1988, the State parties asked the Court to appoint a new Special Master and direct him "to conclude his review of the boundary issues as expeditiously as possible and to submit a recommended decision to the Court." Brief for Petitioners in California v. United States, O. T. 1987, No. 87—1165, p. 49. Finally, the State parties argue that even if they earlier failed to raise the preclusion defense, this Court should raise it now sua sponte. Judicial initiative of this sort might be appropriate in special circumstances. Most notably, "if a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised. This result is fully consistent with the policies underlying res judicata: it is not based solely on the defendant's interest in avoiding the burdens of twice defendinga suit, but is also based on the avoidance of unnecessary judicial waste." United States v. Sioux Nation (Rehnquist, J., dissenting) (citations omitted). That special circumstance is not present here: While the State parties contend that the Fort Yuma boundary dispute could have been decided in Arizona I, this Court plainly has not "previously decided the issue presented." Therefore we do not face the prospect of redoing a matter once decided. Where no judicial resources have been spent on the resolution of a question, trial courts must be cautious about raising a preclusion bar sua sponte, thereby eroding the principle of party presentation so basic to our system of adjudication. In view of the State parties' failure to raise the preclusion argument earlier in the litigation, despite ample opportunity and cause to do so, we hold that the claims of the United States and the Tribe to increased water rights for the disputed boundary lands of the Fort Yuma Reservation are not foreclosed by our decision in Arizona I.B The State parties also assert that the instant water rights claims are precluded by the 1983 consent judgment in the Claims Court proceeding, Docket No. 320. Special Master McGarr agreed, noting the consent judgment's declaration that the Tribe would "be barred thereby from asserting any further rights, claims or demands against the defendant and any future action encompassed on docket no. 320." See Special Master McGarr Memorandum Opinion and Order No. 4, pp. 9—10 (Sept. 6, 1991). On reconsideration, the Special Master provided a fuller account of his recommendation. The settlement, he concluded, had extinguished the Tribe's claim to title in the disputed boundary lands, vesting that title in the United States against all the world: "The only viable basis for a damage or trespass claim [in Docket No. 320] was that the 1893 taking was illegal and that title therefore remained with the Tribe. When the Tribe accepted money in settlement of this claim, it relinquished its claim to title." Id., No. 7, p. 5 (May 5, 1992). See also id., No. 13, p. 3 (Apr. 13, 1993) ("[T]he relinquishment of all future claims regarding the subject matter of Docket No. 320 in exchange for a sum of money extinguished the Tribe's title in the subject lands … ."). Because the settlement extinguished the Tribe's title to the disputed boundary lands, the Master reasoned, the United States and the Tribe cannot now seek additional water rights based on the Tribe's purported beneficial ownership of those lands. Under standard preclusion doctrine, the Master's recommendation cannot be sustained. As already noted, the express terms of the consent judgment in Docket No. 320 barred the Tribe and the United States from asserting against each other any claim or defense they raised or could have raised in that action. See supra, at 10. As between the parties to Docket No. 320, then, the settlement indeed had, and was intended to have, claim-preclusive effect–a matter the United States and the Tribe readily concede. Exception and Brief for the United States 36; Exception and Brief for the Quechan Indian Tribe 20. But settlements ordinarily occasion no issue preclusion (sometimes called collateral estoppel), unless it is clear, as it is not here, that the parties intend their agreement to have such an effect. "In most circumstances, it is recognized that consent agreements ordinarily are intended to preclude any further litigation on the claim presented but are not intended to preclude further litigation on any of the issues presented. Thus consent judgments ordinarily support claim preclusion but not issue preclusion." 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4443, p. 384—385 (1981). This differentiation is grounded in basic res judicata doctrine. It is the general rule that issue preclusion attaches only "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment." Restatement (Second) of Judgments §27, p. 250 (1982). "In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated. Therefore, the rule of this Section [describing issue preclusion's domain] does not apply with respect to any issue in a subsequent action." Id., comment e, p. 257. This Court's decision in United States v. International Building Co., is illustrative. In 1942, the Commissioner of Internal Revenue assessed deficiencies against a taxpayer for the taxable years 1933, 1938, and 1939, alleging that the taxpayer had claimed an excessive basis for depreciation. Id., at 503. After the taxpayer filed for bankruptcy, however, the Commissioner and the taxpayer filed stipulations in the pending Tax Court proceedings stating that there was no deficiency for the taxable years in question, and the Tax Court entered a formal decision to that effect. Id., at 503—504. In 1948, the Commissioner assessed deficiencies for the years 1943, 1944, and 1945, and the taxpayer defended on the ground that the earlier Tax Court decision was preclusive on the issue of the correct basis for depreciation. We disagreed, holding that the Tax Court decision, entered pursuant to the parties' stipulations, did not accomplish an "estoppel by judgment," i.e., it had no issue-preclusive effect:"We conclude that the decisions entered by the Tax Court for the years 1933, 1938, and 1939 were only a pro forma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed . … Perhaps, as the Court of Appeals inferred, the parties did agree on the basis for depreciation. Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration. Certainly the judgments entered are res judicata of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits . … Estoppel by judgment includes matters in a second proceeding which were actually presented and determined in an earlier suit. A judgment entered with the consent of the parties may involve a determination of questions of fact and law by the court. But unless a showing is made that that was the case, the judgment has no greater dignity, so far as collateral estoppel is concerned, than any judgment entered only as a compromise of the parties." Id., at 505—506 (citations omitted). The State parties, perhaps recognizing the infirmity of their argument as a matter of standard preclusion doctrine, assert that common-law principles of issue preclusion do not apply in the special context of Indian land claims. Instead, they argue, §22 of the Indian Claims Commission Act created a special regime of "statutory preclusion."5 According to the State parties, the payment of a Commission judgment for claims to aboriginal or trust lands automatically and universally extinguishes title to the Indian lands upon which the claim is based and creates a statutory bar to further assertion of claims against either the United States or third parties based on the extinguished title. The State parties point to several decisions of the Ninth Circuit in support of this contention. See Reply Brief for State Parties 17 (citing United States v. Pend Oreille Pub. Util. Dist. No. 1, 926 F.2d 1502 (CA9 1991)); id., at 15 (citing United States v. Dann, 873 F.2d 1189 (CA9 1989)); id., at 11 (citing United States v. Gemmill, 535 F.2d 1145 (CA9 1976)). We need not decide whether, in the distinctive context of the Indian Claims Commission Act, some consent judgments might bar a tribe from asserting title even in discrete litigation against third parties, for the 1983 settlement of Docket No. 320 plainly could not qualify as such a judgment. Not only was the issue of ownership of the disputed boundary lands not actually litigated and decided in Docket No. 320, but, most notably, the Tribe proceeded on alternative and mutually exclusive theories of recovery. Had the case proceeded to final judgment upon trial, the Tribe might have won damages for a taking, indicating that title was in the United States. Alternatively, however, the Tribe might have obtained damages for trespass, indicating that title remained in the Tribe. The consent judgment embraced all of the Tribe's claims. There was no election by the Tribe of one theory over the other, nor was any such election required to gain approval for the consent judgment. The Special Master's assumption that the settlement necessarily and universally relinquished the Tribe's claim to title was thus unwarranted. Certainly, if the $15 million payment constituted a discharge of the Tribe's trespass claim, it would make scant sense to say that the acceptance of the payment extinguished the Tribe's title. In contrast, the Ninth Circuit cases cited by the State parties (the correctness of which we do not address) all involved Indian Claims Commission Act petitions in which tribes claimed no continuing title, choosing instead to seek compensation from the United States for the taking of their lands. See, e.g., Pend Oreille, 926 F.2d, at 1507—1508; Dann, 873 F.2d, at 1192, 1194; Gemmill, 535 F.2d, at 1149, and n. 6. The United States invites us to look behind the consent judgment in Docket No. 320 at presettlement stipulations and memoranda purportedly demonstrating that the judgment was grounded on the parties' shared view, after the 1978 Secretarial Order, that the disputed lands belong to the Tribe. We need not accept the Government's invitation. On the matter of issue preclusion, it suffices to observe that the settlement was ambiguous as between mutually exclusive theories of recovery. Like the Tax Court settlement in International Building Co., then, the consent judgment in the Tribe's Claims Court action is too opaque to serve as a foundation for issue preclusion. Accordingly, we hold that the claims of the United States and the Tribe to increased water rights for the disputed boundary lands of the Fort Yuma Reservation are not precluded by the consent judgment in Docket No. 320.C The Special Master has recommended that the Court approve the parties' proposed settlement of the dispute respecting the Fort Mojave Reservation. The claim to additional water for the Fort Mojave Reservation arises out of a dispute over the accuracy of a survey of the so-called Hay and Wood Reserve portion of the Reservation. See Arizona II, 460 U.S., at 631—632. The parties agreed to resolve the matter through an accord that (1) specifies the location of the disputed boundary; (2) preserves the claims of the parties regarding title to and jurisdiction over the bed of the last natural course of the Colorado River within the agreed-upon boundary; (3) awards the Tribe the lesser of an additional 3,022 acre-feet of water or enough water to supply the needs of 468 acres; (4) precludes the United States and the Tribe from claiming additional water rights from the Colorado River for lands within the Hay and Wood Reserve; and (5) disclaims any intent to affect any private claims to title to or jurisdiction over any lands. See McGarr Report 8—9. We accept the Master's uncontested recommendation and approve the proposed settlement. The Master has also recommended that the Court approve the parties' proposed settlement of the dispute respecting the Colorado River Indian Reservation. The claim to additional water for that reservation stems principally from a dispute over whether the reservation boundary is the ambulatory west bank of the Colorado River or a fixed line representing a past location of the River. See Arizona II, 460 U.S., at 631. The parties agreed to resolve the matter through an accord that (1) awards the Tribes the lesser of an additional 2,100 acre-feet of water or enough water to irrigate 315 acres; (2) precludes the United States or the Tribe from seeking additional reserved water rights from the Colorado River for lands in California; (3) embodies the parties' intent not to adjudicate in these proceedings the correct location of the disputed boundary; (4) preserves the competing claims of the parties to title to or jurisdiction over the bed of the Colorado River within the reservation; and (5) provides that the agreement will become effective only if the Master and the Court approve the settlement. See McGarr Report 9—10. The Master expressed concern that the settlement does not resolve the location of the disputed boundary, but recognized that it did achieve the ultimate aim of determining water rights associated with the disputed boundary lands. Id., at 10—12, 13—14. We again accept the Master's recommendation and approve the proposed settlement.6* * * For the foregoing reasons, we remand the outstanding water rights claims associated with the disputed boundary lands of the Fort Yuma Indian Reservation to the Special Master for determination on the merits. Those claims are the only ones that remain to be decided in Arizona v. California; their resolution will enable the Court to enter a final consolidated decree and bring this case to a close. With respect to the Fort Mojave and Colorado River Reservations, the Special Master has submitted a proposed supplemental decree to carry the parties' accords into effect. That decree is reproduced as the Appendix to this opinion, infra, at 26—27. The parties are directed to submit to the Clerk of this Court, before August 22, 2000, any objections to the proposed supplemental decree.It is so ordered.APPENDIX TO OPINION OF THE COURTProposed Supplemental DecreeIt is ORDERED, ADJUDGED, AND DECREED: A. Paragraph (4) of Article II(D) of the Decree in this case entered on March 9, 1964 (—345) is hereby amended to read as follows:(4) The Colorado River Indian Reservation in annual quantities not to exceed (i) 719,248 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 107,903 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with priority dates of March 3, 1865, for lands reserved by the Act of March 3, 1865 (13 Stat. 541, 559); November 22, 1873, for lands reserved by the Executive Order of said date; November 16, 1874, for lands reserved by the Executive Order of said date, except as later modified; May 15, 1876, for lands reserved by the Executive Order of said date; November 22, 1915, for lands reserved by the Executive Order of said date. B. Paragraph (5) of Article II(D) of the Decree in this case entered on March 9, 1964 () and supplemented on April 16, 1984 () is hereby amended to read as follows:(5) The Fort Mojave Indian Reservation in annual quantities not to exceed (i) 132,789 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 20,544 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with priority dates of September 19, 1890, for lands transferred by the Executive Order of said date; February 2, 1911, for lands reserved by the Executive Order of said date. C. Paragraph (5) of the introductory conditions to the Supplemental Decree in this case entered on January 9, 1979 (—423) is hereby amended by adding the following exception at the end of the concluding proviso in the first sentence of that paragraph: "except for the western boundaries of the Fort Mojave and Colorado River Indian Reservations in California."D. Paragraph II(A)(24) of the Decree of January 9, 1979 () is hereby amended to read as follows: 24) Colorado River Indian Reservation 10,745 1,612 Nov. 22, 1873 40,241 6,037 Nov. 16, 1874 5,860 879 May 15, 1876E. Paragraph II(A)(25) of the Decree of January 9, 1979 () is hereby amended to read as follows: 25) Fort Mojave Indian Reservation 16,720 2,587 Sept. 18, 1890 F. Except as otherwise provided herein, the Decree entered on March 9, 1964, and the Supplemental Decrees entered on January 9, 1979, and April 16, 1984, shall remain in full force and effect. G. The Court shall retain jurisdiction herein to order such further proceedings and enter such supplemental decree as may be deemed appropriate. Notes1. The Act conferred exclusive jurisdiction on the Commission to resolve Indian claims solely by the payment of compensation. Section 2 of the Act gave the Commission jurisdiction over, among other things, claims alleging that agreements between a tribe and the United States were vitiated by fraud, duress, or unconscionable consideration, 25 U.S.C. § 70a(3) (1976 ed.), claims arising from the unlawful taking of Indian lands by the United States, §70a(4), and claims based upon fair and honorable dealings not recognized by law or equity, §70a(5). The Commission's "[f]inal determinations," §70r, were subject to review by the Court of Claims, §70s(b), and, if upheld, were submitted to Congress for payment, §70u. Section 15 authorized the Attorney General to represent the United States before the Commission and, "with the approval of the Commission, to compromise any claim presented to the Commission." 25 U.S.C. § 70n (1976 ed.). The Act provided that such compromises "shall be submitted by the Commission to the Congress as a part of its report as provided in section 70t of this title in the same manner as final determinations of the Commission, and shall be subject to the provisions of section 70u of this title." Ibid. Section 22(a) of the Act provided that "[t]he payment of any claim, after its determination in accordance with this chapter, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy." 25 U.S.C. § 70u(a) (1976 ed.). Pursuant to statute, §70v, the Commission ceased its operations in 1978 and transferred its remaining cases to the Court of Claims. 2. The United States and the Tribe point to the holding in Arizona I that Special Master Rifkind had erred in prematurely considering boundary land claims relating to the Fort Mojave and Colorado River Reservations, see 373 U.S., at 601; they contend that consideration of the Fort Yuma Reservation boundaries would have been equally premature. They further stress that in Arizona II we held the omitted lands claims precluded because we resisted "reopen[ing] an adjudication … to reconsider whether initial factual determinations were correctly made," 460 U.S., at 623—624; in contrast, they maintain, the present claims turn on the validity of the 1893 Agreement and the 1978 Secretarial Order, questions of law not addressed in prior proceedings. 3. Noting that in Arizona II we "encouraged the parties to assert their legal claims and defenses in another forum," the dissent concludes that the Court probably would have declined to resolve the preclusion issue at that stage of the case even had the State parties raised it then. Post, at 2. One can only wonder why this should be so. If this Court had held in Arizona II that the United States and the Tribe were precluded from litigating their boundary lands claims, it would have been pointless for the Court to encourage pursuit of those claims "in another forum"; further assertion of the claims in any forum would have been barred. In any event, a party generally forfeits an affirmative defense by failing to raise it even if the relevant proceeding is ultimately resolved on other grounds. 4. The dissent's observation that "the only 'pleadings' in this case were filed in the 1950's," post, at 1, is beside the point. The State parties could have properly raised the preclusion defense as early as February 1979, in their response to the United States' motion for modification of the decree, yet did not do so. See Response of the States of Arizona, California, and Nevada and the Other California Defendants to the Motion of the United States for Modification of Decree, O.T. 1978, No. 8 Orig. Alternatively, it was open to the State parties to seek leave to file a supplemental pleading "setting forth … occurrences or events which have happened since the date of the pleading sought to be amended." Fed. R. Civ. Proc. 15(d). In such a supplemental pleading, and in compliance with Rule 8(c), the preclusion defense could have been raised. No such supplemental pleading was ever presented, and by 1989 a reasonable time to do so had surely expired. The State parties' tardiness in raising their preclusion defense is hard to account for, while the United States' decision not to assert claims for the disputed boundary lands until 1978 can at least be explained by the continued vitality of the Margold Opinion, see supra, at 9—10. It is puzzling that the dissent should go to such lengths to excuse the former delay while relentlessly condemning the latter. 5. Section 22 provided: "(a) When the report of the Commission determining any claimant to be entitled to recover has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission. "The payment of any claim, after its determination in accordance with this chapter, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. "(b) A final determination against a claimant made and reported in accordance with this chapter shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy." 25 U.S.C. § 70u (1976 ed.). 6. A group called the West Bank Homeowners Association has filed a brief amicus curiae objecting to the proposed settlement of water rights claims respecting the Colorado River Indian Reservation. The Association represents some 650 families who lease property from the United States within the current boundaries of the Reservation. The Court and the Special Master have each denied the Association's request to intervene in these proceedings. See Arizona v. California; Special Master McGarr Memorandum Opinion and Order No. 17 (Mar. 29, 1995). The Master observed that the Association's members do "not own land in the disputed area and [the Association] makes no claim to title or water rights," id., at 2, thus their interests will "not be impeded or impaired by the outcome of this litigation,"id., at 6. Accordingly, we do not further consider the Association's objections. CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR and JUSTICE THOMAS join, concurring in part and dissenting in part. I believe that the United States and Quechan Tribe's claim for additional water rights is barred by the principles of res judicata, and therefore I dissent. The Special Master concluded that an exception to the general preclusion rule applied and that, therefore, the United States' claim was not barred. The Court rejects the Special Master's reasoning but concludes that the State Parties' res judicata defense is not properly before the Court. While I agree that the Special Master erred in finding the 1978 Order of the Secretary of the Interior a "new fact" justifying an exception to the application of preclusion, I disagree with the Court's refusal to reach the merits of the State Parties' defense. The Court first concludes that the State Parties lost the defense because they failed to assert it in a timely manner. While the State Parties concede that they did not raise their claim of res judicata until 1989, it does not automatically follow that the defense is lost. Federal Rule of Civil Procedure 8(c) provides that res judicata shall be pleaded as an affirmative defense. But the only "pleadings" in this case were filed in the 1950's, at which time no claim of res judicata could have been made. The motions filed by the State Parties in 1977 and 1979 were not in any sense comprehensive pleadings, purporting to set forth all of the claims and defenses of the parties. More importantly, neither Special Master Tuttle nor this Court focused on the merits of the boundary dispute during the proceedings in Arizona v. California(Arizona II). Rather, the Master only decided whether the Secretary's order was a final boundary determination, and, similarly, this Court simply determined that the Secretary's order was subject to challenge and encouraged the parties to assert their legal claims and defenses in another forum. Consequently, it is likely that the State Parties' res judicata claim would not have been resolved in Arizona II even if it had been raised. The State Parties did expressly raise the defense of res judicata in their 1989 motion, and neither the United States nor the Tribe objected to its consideration. The Tribe contested the merits of the State Parties' res judicata claim and argued that its water rights' claim was not precluded. In so doing, the Tribe asserted that the State Parties had not argued res judicata during the Arizona II proceedings. But neither the Tribe nor the United States contended, in response to the State Parties' motion, that the Court could not decide the res judicata issue because it was not timely raised. We granted the motion, and Master McGarr considered the claim on the merits. Under these circumstances, I believe that the State Parties did not lose their res judicata defense by failing to assert it in the earlier proceedings. The Court also concludes that this Court's 1979 and 1984 supplemental decrees "anticipated" that the boundary dispute would be finally resolved in some forum. See, ante, at 16. To reach this conclusion, the Court reads too much into the simple language of the supplemental decrees and ignores language in our Arizona II opinion. The supplemental decrees stated that water rights for the five reservations "shall be subject to appropriate adjustments by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined." 1984 Supplemental Decree, Art. II(D)(5), Arizona v. California; 1979 Supplemental Decree, Art. II(D)(5), Arizona v. California (per curiam). These decrees can best be interpreted as merely providing that the reservation's water quantity can be adjusted if the boundary changes, without deciding whether the boundary relied on in the 1964 decree could be properly challenged, and without indicating that the boundary necessarily would be "finally determined" at some future point. This reading is supported by language in Arizona II. In discussing the pending District Court action, we explained: "We note that the United States has moved to dismiss the action filed by the agencies based on lack of standing, the absence of indispensable parties, sovereign immunity, and the applicable statute of limitations. There will be time enough, if any of these grounds for dismissal are sustained and not overturned on appellate review, to determine whether the boundary issues foreclosed by such action are nevertheless open for litigation in this Court." 460 U.S., at 638 (emphasis added; footnote omitted). As is evident from this language, we did not "anticipate" that the dispute would be finally resolved. Instead, we explicitly left open the question whether the dispute could be litigated in this Court. The Court disregards this language in Arizona II because it does not mention a potential preclusion defense. However, the point is not that this Court anticipated the State Parties' preclusion defense. Rather, it is that this Court recognized the possibility that the boundary issue would not be judicially resolved at all, and left open the question whether there was some defense precluding this Court's review. What that defense might be was not before the Court. Now that the question is squarely before us, I would hold that the United States' claim for additional water rights is barred by the principles of res judicata. Res judicata not only bars relitigation of claims previously litigated, but also precludes claims that could have been brought in earlier proceedings. Under the doctrine of res judicata, "when a final judgment has been entered on the merits of a case, '[i]t is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." Nevada v. United States—130 (1983) (quoting Cromwell v. County of Sac). In Arizona II, we recognized that the general principles of res judicata apply to our 1964 decree even though the decree expressly provided for modification in appropriate circumstances. In so doing, we noted the importance of the certainty of water rights in the Western United States. "A major purpose of this litigation, from its inception to the present day, has been to provide the necessary assurance to States of the Southwest and to various private interests, of the amount of water they can anticipate to receive from the Colorado River system... . If there is no surplus of water in the Colorado River, an increase in federal reserved water rights will require a 'gallon-for-gallon reduction in the amount of water available for water-needy state and private appropriators.'" 460 U.S., at 620—621 (quoting United States v. New Mexico). Thus, we concluded that allowing recalculation of the amount of practicably irrigable acreage "runs directly counter to the strong interest in finality in this case." Id., at 620. We also noted that treating the 1964 calculation as final comported with the clearly expressed intention of the parties and was consistent with our previous treatment of original actions, allowing modifications after a change in the relevant circumstances. This reasoning is equally applicable to the United States and the Tribe's claim for additional water for the disputed boundary lands. Even though the exact claim was not actually litigated in Arizona v. California (Arizona I), the United States could have raised the boundary claim and failed to do so. Indeed, in the proceedings before Special Master Rifkind, the counsel for the United States affirmatively represented that "[t]he testimony ... as reflected by these maps and by the other testimony will define the maximum claim which the United States is asserting in this case." Earlier in the proceedings, the Master explicitly warned the United States about the preclusive effect of failing to assert potential claims: "In an action or a decree quieting title, you cut out all claims not asserted... . I just want you to be aware of the fact that the mere fact that it has not been asserted does not mean that you may not lose it ... ." Exception by State Parties to Report of Special Master and Supporting Brief 8—9 (colloquy between counsel for the United States and the Special Master). Thus, under the general principles of res judicata, the United States would clearly be barred from now asserting the claim for additional water rights. Master McGarr concluded that the United States' claim was not precluded because it fell within an exception to the bar of res judicata. Wisely abandoning the Master's reasoning, the United States instead defends the Master's ruling on the ground that these claims "are not precluded, under basic principles of res judicata, because [they] were not decided, and could not have been decided, in the prior proceedings." Reply Brief for United States in Response to Exception of the State Parties 21. But this argument fares no better. The issue before the Master in Arizona I was the amount of water from the Colorado River to which the Quechan Tribe was entitled. The Master made an allotment to the reservation based on the evidence then before him as to the amount of irrigable acreage within the reservation boundary, which was undisputed at the time. Only years after that decree was confirmed by this Court in Arizona I did the United States assert a larger claim to water for the reservation based on a claim for a larger amount of irrigable acreage–not because of a miscalculation as to the irrigability of acreage already claimed, but because of a claimed extension of the boundaries of the reservation. But, at the time of Arizona I, the United States had in its possession all of the facts that it later asserted in 1979 in Arizona II, and it could have litigated the larger claim before Master Rifkind. The United States offers no support for its contention that the boundary dispute could not have been decided in Arizona I except for the fact that this Court rejected the Master's resolution of the Fort Mojave Reservation and Colorado River Reservation boundary disputes. However, those boundary disputes are different. While we did not explain in Arizona I why we believed it was improper to decide the boundary disputes, California's objection was based on the fact that necessary parties were not participating in the proceedings. Specifically, California argued that it lacked the authority to represent private individuals claiming title to the disputed lands and maintained that "it would be unfair to prejudice any of the parties in future litigation over land titles or political jurisdiction by approving findings on a tangential issue never pleaded by the United States." Arizona II, supra, at 629. The Fort Yuma Reservation boundary dispute, on the other hand, is solely between the United States and the Quechan Tribe–there are no private parties claiming title to the land. Thus, the United States could have raised this claim in Arizona I, and the Master could have decided it. Because I believe that the State Parties' res judicata defense is properly before the Court and that the United States' claim for additional water rights is precluded, I see no need to remand for further proceedings. I agree with the Court that we should approve the proposed settlements of the remaining claims in this case and direct the parties to submit any objections to the proposed supplemental decree. |
2 | Expulsion of student for distributing on campus a publication assertedly containing "indecent speech" proscribed by a bylaw of a state university's Board of Curators held an impermissible violation of her First Amendment free speech rights since the mere dissemination of ideas on a state university campus cannot be proscribed in the name of "conventions of decency." Certiorari granted; 464 F.2d 136, reversed.PER CURIAM.Petitioner, a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper "containing forms of indecent speech"1 in violation of a bylaw of the Board of Curators. The newspaper, the Free Press Underground, had been sold on this state university campus for more than four years pursuant to an authorization obtained from the University Business Office. The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read: "... With Liberty and Justice for All." Secondly, the issue contained an article entitled "M_____f_____ Acquitted," which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as "Up Against the Wall, M_____f_____."Following a hearing, the Student Conduct Committee found that petitioner had violated Par. B of Art. V of the General Standards of Student Conduct which requires students "to observe generally accepted standards of conduct" and specifically prohibits "indecent conduct or speech."2 Her expulsion, after affirmance first by the Chancellor of the University and then by its Board of Curators, was made effective in the middle of the spring semester. Although she was then permitted to remain on campus until the end of the semester, she was not given credit for the one course in which she made a passing grade.3 After exhausting her administrative review alternatives within the University, petitioner brought an action for declaratory and injunctive relief pursuant to 42 U.S.C. 1983 in the United States District Court for the Western District of Missouri. She claimed that her expulsion was improperly premised on activities protected by the First Amendment. The District Court denied relief, 331 F. Supp. 1321, and the Court of Appeals affirmed, one judge dissenting. 464 F.2d 136. Rehearing en banc was denied by an equally divided vote of all the judges in the Eighth Circuit.The District Court's opinion rests, in part,4 on the conclusion that the banned issue of the newspaper was obscene. The Court of Appeals found it unnecessary to decide that question. Instead, assuming that the newspaper was not obscene and that its distribution in the community at large would be protected by the First Amendment, the court held that on a university campus "freedom of expression" could properly be "subordinated to other interests such as, for example, the conventions of decency in the use and display of language and pictures." Id., at 145. The court concluded that "[t]he Constitution does not compel the University ... [to allow] such publications as the one in litigation to be publicly sold or distributed on its open campus." Ibid.This case was decided several days before we handed down Healy v. James, , in which, while recognizing a state university's undoubted prerogative to enforce reasonable rules governing student conduct, we reaffirmed that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." Id., at 180. See Tinker v. Des Moines Independent School District, . We think Healy makes it clear that the mere dissemination of ideas - no matter how offensive to good taste - on a state university campus may not be shut off in the name alone of "conventions of decency." Other recent precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected. E. g., Kois v. Wisconsin, ; Gooding v. Wilson, ; Cohen v. California, .5 There is language in the opinions below which suggests that the University's action here could be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination. While we have repeatedly approved such regulatory authority, e. g., Healy v. James, 408 U.S., at 192-193, the facts set forth in the opinions below show clearly that petitioner was expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.6 Since the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University's action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct, the judgments of the courts below must be reversed. Accordingly the petition for a writ of certiorari is granted, the case is remanded to the District Court, and that court is instructed to order the University to restore to petitioner any course credits she earned for the semester in question and, unless she is barred from reinstatement for valid academic reasons, to reinstate her as a student in the graduate program. Reversed and remanded. |
7 | Antisubmarine warfare is one of the Navy's highest priorities. The Navy's fleet faces a significant threat from modern diesel-electric submarines, which are extremely difficult to detect and track because they can operate almost silently. The most effective tool for identifying submerged diesel-electric submarines is active sonar, which emits pulses of sound underwater and then receives the acoustic waves that echo off the target. Active sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. This case concerns the Navy's use of "mid-frequency active" (MFA) sonar during integrated training exercises in the waters off southern California (SOCAL). In these exercises, ships, submarines, and aircraft train together as members of a "strike group." Due to the importance of antisubmarine warfare, a strike group may not be certified for deployment until it demonstrates proficiency in the use of active sonar to detect, track, and neutralize enemy submarines. The SOCAL waters contain at least 37 species of marine mammals. The plaintiffs — groups and individuals devoted to the protection of marine mammals and ocean habitats — assert that MFA sonar causes serious injuries to these animals. The Navy disputes that claim, noting that MFA sonar training in SOCAL waters has been conducted for 40 years without a single documented sonar-related injury to any marine mammal. Plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the training exercises violated the National Environmental Policy Act of 1969 (NEPA) and other federal laws; in particular, plaintiffs contend that the Navy should have prepared an environmental impact statement (EIS) before conducting the latest round of SOCAL exercises. The District Court entered a preliminary injunction prohibiting the Navy from using MFA sonar during its training exercises. The Court of Appeals held that this injunction was overbroad and remanded to the District Court for a narrower remedy. The District Court then entered another preliminary injunction, imposing six restrictions on the Navy's use of sonar during its SOCAL training exercises. As relevant to this case, the injunction required the Navy to shut down MFA sonar when a marine mammal was spotted within 2,200 yards of a vessel, and to power down sonar by 6 decibels during conditions known as "surface ducting." The Navy then sought relief from the Executive Branch. The Council on Environmental Quality (CEQ) authorized the Navy to implement "alternative arrangements" to NEPA compliance in light of "emergency circumstances." The CEQ allowed the Navy to continue its training exercises under voluntary mitigation procedures that the Navy had previously adopted. The Navy moved to vacate the District Court's preliminary injunction in light of the CEQ's actions. The District Court refused to do so, and the Court of Appeals affirmed. The Court of Appeals held that there was a serious question whether the CEQ's interpretation of the "emergency circumstances" regulation was lawful, that plaintiffs had carried their burden of establishing a "possibility" of irreparable injury, and that the preliminary injunction was appropriate because the balance of hardships and consideration of the public interest favored the plaintiffs. The Court of Appeals emphasized that any negative impact of the injunction on the Navy's training exercises was "speculative," and determined that (1) the 2,200-yard shutdown zone was unlikely to affect naval operations, because MFA sonar systems are often shut down during training exercises; and (2) the power-down requirement during surface ducting conditions was not unreasonable, because such conditions are rare and the Navy has previously certified strike groups not trained under these conditions.Held: The preliminary injunction is vacated to the extent challenged by the Navy. The balance of equities and the public interest — which were barely addressed by the District Court — tip strongly in favor of the Navy. The Navy's need to conduct realistic training with active sonar to respond to the threat posed by enemy submarines plainly outweighs the interests advanced by the plaintiffs. Pp. 10-24. (a) The lower courts held that when a plaintiff demonstrates a strong likelihood of success on the merits, a preliminary injunction may be entered based only on a "possibility" of irreparable harm. The "possibility" standard is too lenient. This Court's frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Even if plaintiffs have demonstrated a likelihood of irreparable injury, such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. For the same reason, it is unnecessary to address the lower courts' holding that plaintiffs have established a likelihood of success on the merits. Pp. 10-14. (b) A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and consider the effect of granting or withholding the requested relief, paying particular regard to the public consequences. Weinberger v. Romero-Barcelo, 456 U. S. 305, 312. Military interests do not always trump other considerations, and the Court has not held that they do, but courts must give deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. Goldman v. Weinberger, 475 U. S. 503, 507. Here, the record contains declarations from some of the Navy's most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Those officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court — the 2,200-yard shutdown zone and the power-down requirement during surface ducting conditions. The use of MFA sonar under realistic conditions during training exercises is clearly of the utmost importance to the Navy and the Nation. The Court does not question the importance of plaintiffs' ecological, scientific, and recreational interests, but it concludes that the balance of equities and consideration of the overall public interest tip strongly in favor of the Navy. The determination of where the public interest lies in this case does not strike the Court as a close question. Pp. 14-16. (c) The lower courts' justifications for entering the preliminary injunction are not persuasive. Pp. 16-21. (1) The District Court did not give serious consideration to the balance of equities and the public interest. The Court of Appeals did consider these factors and conclude that the Navy's concerns about the preliminary injunction were "speculative." But that is almost always the case when a plaintiff seeks injunctive relief to alter a defendant's conduct. The lower courts failed properly to defer to senior Navy officers' specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy's SOCAL training exercises. Pp. 16-17. (2) The District Court abused its discretion by requiring the Navy to shut down MFA sonar when a marine mammal is spotted within 2,200 yards of a sonar-emitting vessel. The Court of Appeals concluded that the zone would not be overly burdensome because marine mammal sightings during training exercises are relatively rare. But regardless of the frequency of such sightings, the injunction will increase the radius of the shutdown zone from 200 to 2,200 yards, which expands its surface area by a factor of over 100. Moreover, because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days' worth of training. The Court of Appeals also concluded that the shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar several times during prior exercises when marine mammals were spotted well beyond the Navy's self-imposed 200-yard zone. But the court ignored undisputed evidence that these voluntary shutdowns only occurred during tactically insignificant times. Pp. 18-20. (3) The District Court also abused its discretion by requiring the Navy to power down MFA sonar by 6 decibels during significant surface ducting conditions. When surface ducting occurs, active sonar becomes more useful near the surface, but less effective at greater depths. Diesel-electric submariners are trained to take advantage of these distortions to avoid being detected by sonar. The Court of Appeals concluded that the power-down requirement was reasonable because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such conditions. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Pp. 20-21. (4) The Navy has previously taken voluntary measures to address concerns about marine mammals, and has chosen not to challenge four other restrictions imposed by the District Court in this case. But that hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals noted that the Navy could return to the District Court to seek modification of the preliminary injunction if it actually resulted in an inability to train. The Navy is not required to wait until it is unable to train sufficient forces for national defense before seeking dissolution of the preliminary injunction. By then it may be too late. P. 21. (d) This Court does not address the underlying merits of plaintiffs' claims, but the foregoing analysis makes clear that it would also be an abuse of discretion to enter a permanent injunction along the same lines as the preliminary injunction. Plaintiffs' ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training. There is accordingly no basis for enjoining such training pending preparation of an EIS — if one is determined to be required — when doing so is credibly alleged to pose a serious threat to national security. There are many other remedial tools available, including declaratory relief or an injunction specifically tailored to preparation of an EIS, that do not carry such dire consequences. Pp. 21-23.518 F. 3d 658, reversed; preliminary injunction vacated in part. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined as to Part I. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.DONALD C. WINTER, SECRETARY OF THE NAVY,et al., PETITIONERS v. NATURAL RESOURCESDEFENSE COUNCIL, INC., et al.on writ of certiorari to the united states court of appeals for the ninth circuit[November 12, 2008] Chief Justice Roberts delivered the opinion of the Court. "To be prepared for war is one of the most effectual means of preserving peace." 1 Messages and Papers of the Presidents 57 (J. Richardson comp. 1897). So said George Washington in his first Annual Address to Congress, 218 years ago. One of the most important ways the Navy prepares for war is through integrated training exercises at sea. These exercises include training in the use of modern sonar to detect and track enemy submarines, something the Navy has done for the past 40 years. The plaintiffs complained that the Navy's sonar training program harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy's sonar training, even though that court acknowledged that "the record contains no evidence that marine mammals have been harmed" by the Navy's exercises. 518 F. 3d 658, 696 (CA9 2008). The Court of Appeals was wrong, and its decision is reversed.I The Navy deploys its forces in "strike groups," which are groups of surface ships, submarines, and aircraft centered around either an aircraft carrier or an amphibious assault ship. App. to Pet. for Cert. (Pet. App.) 316a-317a. Seamless coordination among strike-group assets is critical. Before deploying a strike group, the Navy requires extensive integrated training in analysis and prioritization of threats, execution of military missions, and maintenance of force protection. App. 110-111. Antisubmarine warfare is currently the Pacific Fleet's top war-fighting priority. Pet. App. 270a-271a. Modern diesel-electric submarines pose a significant threat to Navy vessels because they can operate almost silently, making them extremely difficult to detect and track. Potential adversaries of the United States possess at least 300 of these submarines. App. 571. The most effective technology for identifying submerged diesel-electric submarines within their torpedo range is active sonar, which involves emitting pulses of sound underwater and then receiving the acoustic waves that echo off the target. Pet. App. 266a-267a, 274a. Active sonar is a particularly useful tool because it provides both the bearing and the distance of target submarines; it is also sensitive enough to allow the Navy to track enemy submarines that are quieter than the surrounding marine environment.1 This case concerns the Navy's use of "mid-frequency active" (MFA) sonar, which transmits sound waves at frequencies between 1 kHz and 10 kHz. Not surprisingly, MFA sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. Sonar reception can be affected by countless different factors, including the time of day, water density, salinity, currents, weather conditions, and the contours of the sea floor. Id., at 278a-279a. When working as part of a strike group, sonar operators must be able to coordinate with other Navy ships and planes while avoiding interference. The Navy conducts regular training exercises under realistic conditions to ensure that sonar operators are thoroughly skilled in its use in a variety of situations. The waters off the coast of southern California (SOCAL) are an ideal location for conducting integrated training exercises, as this is the only area on the west coast that is relatively close to land, air, and sea bases, as well as amphibious landing areas. App. 141-142. At issue in this case are the Composite Training Unit Exercises and the Joint Tactical Force Exercises, in which individual naval units (ships, submarines, and aircraft) train together as members of a strike group. A strike group cannot be certified for deployment until it has successfully completed the integrated training exercises, including a demonstration of its ability to operate under simulated hostile conditions. Id., at 564-565. In light of the threat posed by enemy submarines, all strike groups must demonstrate proficiency in antisubmarine warfare. Accordingly, the SOCAL exercises include extensive training in detecting, tracking, and neutralizing enemy submarines. The use of MFA sonar during these exercises is "mission-critical," given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power. Id., at 568-571. Sharing the waters in the SOCAL operating area are at least 37 species of marine mammals, including dolphins, whales, and sea lions. The parties strongly dispute the extent to which the Navy's training activities will harm those animals or disrupt their behavioral patterns. The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL for 40 years, without a single documented sonar-related injury to any marine mammal. The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals' behavioral patterns. The plaintiffs are the Natural Resources Defense Council, Jean-Michael Cousteau (an environmental enthusiast and filmmaker), and several other groups devoted to the protection of marine mammals and ocean habitats. They contend that MFA sonar can cause much more serious injuries to marine mammals than the Navy acknowledges, including permanent hearing loss, decompression sickness, and major behavioral disruptions. According to the plaintiffs, several mass strandings of marine mammals (outside of SOCAL) have been "associated" with the use of active sonar. They argue that certain species of marine mammals — such as beaked whales — are uniquely susceptible to injury from active sonar; these injuries would not necessarily be detected by the Navy, given that beaked whales are "very deep divers" that spend little time at the surface.II The procedural history of this case is rather complicated. The Marine Mammal Protection Act of 1972 (MMPA), 86 Stat. 1027, generally prohibits any individual from "taking" a marine mammal, defined as harassing, hunting, capturing, or killing it. 16 U. S. C. §§1362(13), 1372(a). The Secretary of Defense may "exempt any action or category of actions" from the MMPA if such actions are "necessary for national defense." §1371(f)(1). In January 2007, the Deputy Secretary of Defense — acting for the Secretary — granted the Navy a 2-year exemption from the MMPA for the training exercises at issue in this case. Pet. App. 219a-220a. The exemption was conditioned on the Navy adopting several mitigation procedures, including: (1) training lookouts and officers to watch for marine mammals; (2) requiring at least five lookouts with binoculars on each vessel to watch for anomalies on the water surface (including marine mammals); (3) requiring aircraft and sonar operators to report detected marine mammals in the vicinity of the training exercises; (4) requiring reduction of active sonar transmission levels by 6 dB if a marine mammal is detected within 1,000 yards of the bow of the vessel, or by 10 dB if detected within 500 yards; (5) requiring complete shutdown of active sonar transmission if a marine mammal is detected within 200 yards of the vessel; (6) requiring active sonar to be operated at the "lowest practicable level"; and (7) adopting coordination and reporting procedures. Id., at 222a-230a. The National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, requires federal agencies "to the fullest extent possible" to prepare an environmental impact statement (EIS) for "every ... major Federal actio[n] significantly affecting the quality of the human environment." 42 U. S. C. §4332(2)(C) (2000 ed.). An agency is not required to prepare a full EIS if it determines — based on a shorter environmental assessment (EA)--that the proposed action will not have a significant impact on the environment. 40 CFR §§1508.9(a), 1508.13 (2007). In February 2007, the Navy issued an EA concluding that the 14 SOCAL training exercises scheduled through January 2009 would not have a significant impact on the environment. App. 226-227. The EA divided potential injury to marine mammals into two categories: Level A harassment, defined as the potential destruction or loss of biological tissue (i.e., physical injury), and Level B harassment, defined as temporary injury or disruption of behavioral patterns such as migration, feeding, surfacing, and breeding. Id., at 160-161. The Navy's computer models predicted that the SOCAL training exercises would cause only eight Level A harassments of common dolphins each year, and that even these injuries could be avoided through the Navy's voluntary mitigation measures, given that dolphins travel in large pods easily located by Navy lookouts. Id., at 176-177, 183. The EA also predicted 274 Level B harassments of beaked whales per year, none of which would result in permanent injury. Id., at 185-186. Beaked whales spend little time at the surface, so the precise effect of active sonar on these mammals is unclear. Erring on the side of caution, the Navy classified all projected harassments of beaked whales as Level A. Id., at 186, 223. In light of its conclusion that the SOCAL training exercises would not have a significant impact on the environment, the Navy determined that it was unnecessary to prepare a full EIS. See 40 CFR §1508.13. Shortly after the Navy released its EA, the plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the Navy's SOCAL training exercises violated NEPA, the Endangered Species Act of 1973 (ESA), and the Coastal Zone Management Act of 1972 (CZMA).2 The District Court granted plaintiffs' motion for a preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The court held that plaintiffs had "demonstrated a probability of success" on their claims under NEPA and the CZMA. Pet. App. 207a, 215a. The court also determined that equitable relief was appropriate because, under Ninth Circuit precedent, plaintiffs had established at least a " 'possibility' " of irreparable harm to the environment. Id., at 217a. Based on scientific studies, declarations from experts, and other evidence in the record, the District Court concluded that there was in fact a "near certainty" of irreparable injury to the environment, and that this injury outweighed any possible harm to the Navy. Id., at 217a-218a. The Navy filed an emergency appeal, and the Ninth Circuit stayed the injunction pending appeal. 502 F. 3d 859, 865 (2007). After hearing oral argument, the Court of Appeals agreed with the District Court that preliminary injunctive relief was appropriate. The appellate court concluded, however, that a blanket injunction prohibiting the Navy from using MFA sonar in SOCAL was overbroad, and remanded the case to the District Court "to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." 508 F. 3d 885, 887 (2007). On remand, the District Court entered a new preliminary injunction allowing the Navy to use MFA sonar only as long as it implemented the following mitigation measures (in addition to the measures the Navy had adopted pursuant to its MMPA exemption): (1) imposing a 12-mile "exclusion zone" from the coastline; (2) using lookouts to conduct additional monitoring for marine mammals; (3) restricting the use of "helicopter-dipping" sonar; (4) limiting the use of MFA sonar in geographic "choke points"; (5) shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel; and (6) powering down MFA sonar by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water. 530 F. Supp. 2d 1110, 1118-1121 (CD Cal. 2008). The Navy filed a notice of appeal, challenging only the last two restrictions. The Navy then sought relief from the Executive Branch. The President, pursuant to 16 U. S. C. §1456(c)(1)(B), granted the Navy an exemption from the CZMA. Section 1456(c)(1)(B) permits such exemptions if the activity in question is "in the paramount interest of the United States." The President determined that continuation of the exercises as limited by the Navy was "essential to national security." Pet. App. 232a. He concluded that compliance with the District Court's injunction would "undermine the Navy's ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of ... strike groups." Ibid. Simultaneously, the Council on Environmental Quality (CEQ) authorized the Navy to implement "alternative arrangements" to NEPA compliance in light of "emergency circumstances." See 40 CFR §1506.11.3 The CEQ determined that alternative arrangements were appropriate because the District Court's injunction "create[s] a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable." Pet. App. 238a. Under the alternative arrangements, the Navy would be permitted to conduct its training exercises under the mitigation procedures adopted in conjunction with the exemption from the MMPA. The CEQ also imposed additional notice, research, and reporting requirements. In light of these actions, the Navy then moved to vacate the District Court's injunction with respect to the 2,200-yard shutdown zone and the restrictions on training in surface ducting conditions. The District Court refused to do so, 527 F. Supp. 2d 1216 (2008), and the Court of Appeals affirmed. The Ninth Circuit held that there was a serious question regarding whether the CEQ's interpretation of the "emergency circumstances" regulation was lawful. Specifically, the court questioned whether there was a true "emergency" in this case, given that the Navy has been on notice of its obligation to comply with NEPA from the moment it first planned the SOCAL training exercises. 518 F. 3d, at 681. The Court of Appeals concluded that the preliminary injunction was entirely predictable in light of the parties' litigation history. Ibid. The court also held that plaintiffs had established a likelihood of success on their claim that the Navy was required to prepare a full EIS for the SOCAL training exercises. Id., at 693. The Ninth Circuit agreed with the District Court's holding that the Navy's EA — which resulted in a finding of no significant environmental impact — was "cursory, unsupported by cited evidence, or unconvincing." Ibid.4 The Court of Appeals further determined that plaintiffs had carried their burden of establishing a "possibility" of irreparable injury. Even under the Navy's own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals' behavior. Id., at 696. Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy's training exercises was "speculative," since the Navy has never before operated under the procedures required by the District Court. Id., at 698-699. In particular, the court determined that: (1) the 2,200-yard shutdown zone imposed by the District Court was unlikely to affect the Navy's operations, because the Navy often shuts down its MFA sonar systems during the course of training exercises; and (2) the power-down requirement during significant surface ducting conditions was not unreasonable because such conditions are rare, and the Navy has previously certified strike groups that had not trained under such conditions. Id., at 699-702. The Ninth Circuit concluded that the District Court's preliminary injunction struck a proper balance between the competing interests at stake. We granted certiorari, 554 U. S. __ (2008), and now reverse and vacate the injunction.IIIA A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. __, __ (2008) (slip op., at 12); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U. S. 305, 311-312 (1982). The District Court and the Ninth Circuit concluded that plaintiffs have shown a likelihood of success on the merits of their NEPA claim. The Navy strongly disputes this determination, arguing that plaintiffs' likelihood of success is low because the CEQ reasonably concluded that "emergency circumstances" justified alternative arrangements to NEPA compliance. 40 CFR §1506.11. Plaintiffs' briefs before this Court barely discuss the ground relied upon by the lower courts — that the plain meaning of "emergency circumstances" does not encompass a court order that was "entirely predictable" in light of the parties' litigation history. 518 F. 3d, at 681. Instead, plaintiffs contend that the CEQ's actions violated the separation of powers by readjudicating a factual issue already decided by an Article III court. Moreover, they assert that the CEQ's interpretations of NEPA are not entitled to deference because the CEQ has not been given statutory authority to conduct adjudications. The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a "possibility" of irreparable harm. Id., at 696-697; 530 F. Supp. 2d, at 1118 (quoting Faith Center Church Evangelistic Ministries v. Glover, 480 F. 3d 891, 906 (CA9 2007); Earth Island Inst. v. United States Forest Serv., 442 F. 3d 1147, 1159 (CA9 2006)). The lower courts held that plaintiffs had met this standard because the scientific studies, declarations, and other evidence in the record established to "a near certainty" that the Navy's training exercises would cause irreparable harm to the environment. 530 F. Supp. 2d, at 1118. The Navy challenges these holdings, arguing that plaintiffs must demonstrate a likelihood of irreparable injury — not just a possibility — in order to obtain preliminary relief. On the facts of this case, the Navy contends that plaintiffs' alleged injuries are too speculative to give rise to irreparable injury, given that ever since the Navy's training program began 40 years ago, there has been no documented case of sonar-related injury to marine mammals in SOCAL. And even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests. For their part, plaintiffs assert that they would prevail under any formulation of the irreparable injury standard, because the District Court found that they had established a "near certainty" of irreparable harm. We agree with the Navy that the Ninth Circuit's "possibility" standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los Angeles v. Lyons, 461 U. S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U. S. 423, 441 (1974); O'Shea v. Littleton, 414 U. S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.1, p. 139 (2d ed. 1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, "the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered"); id., at 155 ("a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury"). Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam). It is not clear that articulating the incorrect standard affected the Ninth Circuit's analysis of irreparable harm. Although the court referred to the "possibility" standard, and cited Circuit precedent along the same lines, it affirmed the District Court's conclusion that plaintiffs had established a " 'near certainty' " of irreparable harm. 518 F. 3d, at 696-697. At the same time, however, the nature of the District Court's conclusion is itself unclear. The District Court originally found irreparable harm from sonar-training exercises generally. But by the time of the District Court's final decision, the Navy challenged only two of six restrictions imposed by the court. See supra, at 7-8. The District Court did not reconsider the likelihood of irreparable harm in light of the four restrictions not challenged by the Navy. This failure is significant in light of the District Court's own statement that the 12-mile exclusion zone from the coastline — one of the unchallenged mitigation restrictions--"would bar the use of MFA sonar in a significant portion of important marine mammal habitat." 530 F. Supp. 2d, at 1119. We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment. When the Government conducts an activity, "NEPA itself does not mandate particular results." Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 350 (1989). Instead, NEPA imposes only procedural requirements to "ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Id., at 349. Part of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there may be little if any information about prospective environmental harms and potential mitigating measures. Here, in contrast, the plaintiffs are seeking to enjoin — or substantially restrict — training exercises that have been taking place in SOCAL for the last 40 years. And the latest series of exercises were not approved until after the defendant took a "hard look at environmental consequences," id., at 350 (quoting Kleppe v. Sierra Club, 427 U. S. 390, 410, n. 21 (1976) (internal quotation marks omitted)), as evidenced by the issuance of a detailed, 293-page EA. As explained in the next section, even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. For the same reason, we do not address the lower courts' holding that plaintiffs have also established a likelihood of success on the merits.B A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf, 553 U. S., at __ (slip op., at 12). In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co., 480 U. S., at 542. "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Romero-Barcelo, 456 U. S., at 312; see also Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496, 500 (1941). In this case, the District Court and the Ninth Circuit significantly understated the burden the preliminary injunction would impose on the Navy's ability to conduct realistic training exercises, and the injunction's consequent adverse impact on the public interest in national defense. This case involves "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force," which are "essentially professional military judgments." Gilligan v. Morgan, 413 U. S. 1, 10 (1973). We "give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." Goldman v. Weinberger, 475 U. S. 503, 507 (1986). As the Court emphasized just last Term, "neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people." Boumediene v. Bush, 553 U. S. __, __ (2008) (slip op., at 68). Here, the record contains declarations from some of the Navy's most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Admiral Gary Roughead — the Chief of Naval Operations — stated that during training exercises: "It is important to stress the ship crews in all dimensions of warfare simultaneously. If one of these training elements were impacted — for example, if effective sonar training were not possible — the training value of the other elements would also be degraded ... ." Pet. App. 342a. Captain Martin May — the Third Fleet's Assistant Chief of Staff for Training and Readiness — emphasized that the use of MFA sonar is "mission-critical." App. 570-571. He described the ability to operate MFA sonar as a "highly perishable skill" that must be repeatedly practiced under realistic conditions. Id., at 577. During training exercises, MFA sonar operators learn how to avoid sound-reducing "clutter" from ocean floor topography and environmental conditions; they also learn how to avoid interference and how to coordinate their efforts with other sonar operators in the strike group. Id., at 574. Several Navy officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Court — the 2,200-yard shutdown zone and the requirement that the Navy power down its sonar systems during significant surface ducting conditions. See, e.g., Pet. App. 333a (powering down in presence of surface ducting "unreasonably prevent[s] realistic training"); id., at 356a (shutdown zone would "result in a significant, adverse impact to realistic training"). We accept these officers' assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation. These interests must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court. Plaintiffs have submitted declarations asserting that they take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats. Plaintiffs contend that the Navy's use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs' ability to study and observe the animals. While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President — the Commander in Chief — has determined that training with active sonar is "essential to national security." Pet. App. 232a. The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.C 1. Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion. The court's entire discussion of these factors consisted of one (albeit lengthy) sentence: "The Court is also satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." Id., at 217a-218a. As the prior Ninth Circuit panel in this case put it, in staying the District Court's original preliminary injunction, "[t]he district court did not give serious consideration to the public interest factor." 502 F. 3d, at 863. The District Court's order on remand did nothing to cure this defect, but simply repeated nearly verbatim the same sentence from its previous order. Compare 530 F. Supp. 2d, at 1118, with Pet. App. 217a-218a. The subsequent Ninth Circuit panel framed its opinion as reviewing the District Court's exercise of discretion, 518 F. 3d, at 697-699, but that discretion was barely exercised here. The Court of Appeals held that the balance of equities and the public interest favored the plaintiffs, largely based on its view that the preliminary injunction would not in fact impose a significant burden on the Navy's ability to conduct its training exercises and certify its strike groups. Id., at 698-699. The court deemed the Navy's concerns about the preliminary injunction "speculative" because the Navy had not operated under similar procedures before. Ibid. But this is almost always the case when a plaintiff seeks injunctive relief to alter a defendant's conduct. The lower courts failed properly to defer to senior Navy officers' specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy's SOCAL training exercises. See Wright & Miller §2948.2, at 167-68 ("The policy against the imposition of judicial restraints prior to an adjudication of the merits becomes more significant when there is reason to believe that the decree will be burdensome"). 2. The preliminary injunction requires the Navy to shut down its MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. The Ninth Circuit stated that the 2,200-yard shutdown zone would not be overly burdensome because sightings of marine mammals during training exercises are relatively rare. But regardless of the frequency of marine mammal sightings, the injunction will greatly increase the size of the shutdown zone. Pursuant to its exemption from the MMPA, the Navy agreed to reduce the power of its MFA sonar at 1,000 yards and 500 yards, and to completely turn off the system at 200 yards. Pet. App. 222a-230a. The District Court's injunction does not include a graduated power-down, instead requiring a total shutdown of MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. There is an exponential relationship between radius length and surface area (Area = r2). Increasing the radius of the shutdown zone from 200 to 2,200 yards would accordingly expand the surface area of the shutdown zone by a factor of over 100 (from 125,664 square yards to 15,205,308 square yards). The lower courts did not give sufficient weight to the views of several top Navy officers, who emphasized that because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days' worth of training. Id., at 344a. Limiting the number of sonar shutdowns is particularly important during the Joint Tactical Force Exercises, which usually last for less than two weeks. Ibid. Admiral Bird explained that the 2,200-yard shutdown zone would cause operational commanders to "lose awareness of the tactical situation through the constant stopping and starting of MFA [sonar]." Id., at 332a; see also id., at 356a ("It may take days to get to the pivotal attack in antisubmarine warfare, but only minutes to confound the results upon which certification is based"). Even if there is a low likelihood of a marine mammal sighting, the preliminary injunction would clearly increase the number of disruptive sonar shutdowns the Navy is forced to perform during its SOCAL training exercises. The Court of Appeals also concluded that the 2,200-yard shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar 27 times during its eight prior training exercises in SOCAL; in several of these cases, the Navy turned off its sonar when marine mammals were spotted well beyond the Navy's self-imposed 200-yard shutdown zone. 518 F. 3d, at 700, n. 65. Admiral Locklear — the Commander of the Navy's Third Fleet — stated that any shutdowns beyond the 200-yard zone were voluntary avoidance measures that likely took place at tactically insignificant times; the Ninth Circuit discounted this explanation as not supported by the record. Ibid. In reaching this conclusion, the Court of Appeals ignored key portions of Admiral Locklear's declaration, in which he stated unequivocally that commanding officers "would not shut down sonar until legally required to do so if in contact with a submarine." Pet. App. 354a-355a. Similarly, if a commanding officer is in contact with a target submarine, "the CO will be expected to continue to use active sonar unless another ship or helicopter can gain contact or if regulatory reasons dictate otherwise." Id., at 355a. The record supports the Navy's contention that its shutdowns of MFA sonar during prior training exercises only occurred during tactically insignificant times; those voluntary shutdowns do not justify the District Court's imposition of a mandatory 2,200-yard shutdown zone. Lastly, the Ninth Circuit stated that a 2,200-yard shutdown zone was feasible because the Navy had previously adopted a 2,000-meter zone for low-frequency active (LFA) sonar. The Court of Appeals failed to give sufficient weight to the fact that LFA sonar is used for long-range detection of enemy submarines, and thus its use and shutdown involve tactical considerations quite different from those associated with MFA sonar. See App. 508 (noting that equating MFA sonar with LFA sonar "is completely misleading and is like comparing 20 degrees Fahrenheit to 20 degrees Celsius"). 3. The Court of Appeals also concluded that the Navy's training exercises would not be significantly affected by the requirement that it power down MFA sonar by 6 dB during significant surface ducting conditions. Again, we think the Ninth Circuit understated the burden this requirement would impose on the Navy's ability to conduct realistic training exercises. Surface ducting is a phenomenon in which relatively little sound energy penetrates beyond a narrow layer near the surface of the water. When surface ducting occurs, active sonar becomes more useful near the surface but less useful at greater depths. Pet. App. 299a-300a. Diesel-electric submariners are trained to take advantage of these distortions to avoid being detected by sonar. Id., at 333a. The Ninth Circuit determined that the power-down requirement during surface ducting conditions was unlikely to affect certification of the Navy's strike groups because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such conditions. 518 F. 3d, at 701-702. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Admiral Bird explained that the 6 dB power-down requirement makes the training less valuable because it "exposes [sonar operators] to unrealistically lower levels of mutual interference caused by multiple sonar systems operating together by the ships within the Strike Group." Pet. App. 281a (footnote omitted). Although a 6 dB reduction may not seem terribly significant, decibels are measured on a logarithmic scale, so a 6 dB decrease in power equates to a 75% reduction. Id., at 284a-285a. 4. The District Court acknowledged that " 'the imposition of these mitigation measures will require the Navy to alter and adapt the way it conducts antisubmarine warfare training — a substantial challenge. Nevertheless, evidence presented to the Court reflects that the Navy has employed mitigation measures in the past, without sacrificing training objectives.' " 527 F. Supp. 2d, at 1238. Apparently no good deed goes unpunished. The fact that the Navy has taken measures in the past to address concerns about marine mammals — or, for that matter, has elected not to challenge four additional restrictions imposed by the District Court in this case, see supra, at 7-8 — hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals concluded its opinion by stating that "the Navy may return to the district court to request relief on an emergency basis" if the preliminary injunction "actually result[s] in an inability to train and certify sufficient naval forces to provide for the national defense." 518 F. 3d, at 703. This is cold comfort to the Navy. The Navy contends that the injunction will hinder efforts to train sonar operators under realistic conditions, ultimately leaving strike groups more vulnerable to enemy submarines. Unlike the Ninth Circuit, we do not think the Navy is required to wait until the injunction "actually result[s] in an inability to train ... sufficient naval forces for the national defense" before seeking its dissolution. By then it may be too late.IV As noted above, we do not address the underlying merits of plaintiffs' claims. While we have authority to proceed to such a decision at this point, see Munaf, 553 U. S., at __ (slip op., at 13-14), doing so is not necessary here. In addition, reaching the merits is complicated by the fact that the lower courts addressed only one of several issues raised, and plaintiffs have largely chosen not to defend the decision below on that ground.5 At the same time, what we have said makes clear that it would be an abuse of discretion to enter a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction. An injunction is a matter of equitable discretion; it does not follow from success on the merits as a matter of course. Romero-Barcelo, 456 U. S., at 313 ("a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law"). The factors examined above — the balance of equities and consideration of the public interest — are pertinent in assessing the propriety of any injunctive relief, preliminary or permanent. See Amoco Production Co., 480 U. S., at 546, n. 12 ("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"). Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security. This is particularly true in light of the fact that the training has been going on for 40 years with no documented episode of harm to a marine mammal. A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy's training in the interim. See, e.g., Steffel v. Thompson, 415 U. S. 452, 466 (1974) ("Congress plainly intended declaratory relief to act as an alternative to the strong medicine of the injunction"). In the meantime, we see no basis for jeopardizing national security, as the present injunction does. Plaintiffs confirmed at oral argument that the preliminary injunction was "the whole ball game," Tr. of Oral Arg. 33, and our analysis of the propriety of preliminary relief is applicable to any permanent injunction as well.* * * President Theodore Roosevelt explained that "the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions which would have to be met if war existed." President's Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the importance of plaintiffs' ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy's need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its discretion by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting conditions. The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy.It is so ordered.DONALD C. WINTER, SECRETARY OF THE NAVY, et al., PETITIONERS v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.on writ of certiorari to the united states court of appeals for the ninth circuit[November 12, 2008] Justice Ginsburg, with whom Justice Souter joins, dissenting. The central question in this action under the National Environmental Policy Act of 1969 (NEPA) was whether the Navy must prepare an environmental impact statement (EIS). The Navy does not challenge its obligation to do so, and it represents that the EIS will be complete in January 2009 — one month after the instant exercises conclude. If the Navy had completed the EIS before taking action, as NEPA instructs, the parties and the public could have benefited from the environmental analysis — and the Navy's training could have proceeded without interruption. Instead, the Navy acted first, and thus thwarted the very purpose an EIS is intended to serve. To justify its course, the Navy sought dispensation not from Congress, but from an executive council that lacks authority to countermand or revise NEPA's requirements. I would hold that, in imposing manageable measures to mitigate harm until completion of the EIS, the District Court conscientiously balanced the equities and did not abuse its discretion.I In December 2006, the Navy announced its intent to prepare an EIS to address the potential environmental effects of its naval readiness activities in the Southern California (SOCAL) Range Complex. See 71 Fed. Reg. 76639 (2006). These readiness activities include expansion and intensification of naval training, as well as research, development, and testing of various systems and weapons. Id., at 76639, 76640. The EIS process is underway, and the Navy represents that it will be complete in January 2009. Brief for Petitioners 11; Tr. of Oral Arg. 11. In February 2007, seeking to commence training before completion of the EIS, the Navy prepared an Environmental Assessment (EA) for the 14 exercises it planned to undertake in the interim. See App. L to Pet. for Cert. 235a.1 On February 12, the Navy concluded the EA with a finding of no significant impact. App. 225-226. The same day, the Navy commenced its training exercises. Id., at 227 ("The Proposed Action is hereby implemented."). On March 22, 2007, the Natural Resources Defense Council (NRDC) filed suit in the U. S. District Court for the Central District of California, seeking declaratory and injunctive relief based on the Navy's alleged violations of NEPA and other environmental statutes. As relevant here, the District Court determined that NRDC was likely to succeed on its NEPA claim and that equitable principles warranted preliminary relief. On August 7, 2007, the court enjoined the Navy's use of mid-frequency active (MFA) sonar during the 11 remaining exercises at issue. On August 31, the Court of Appeals for the Ninth Circuit stayed the injunction pending disposition of the Navy's appeal, and the Navy proceeded with two more exercises. In a November 13 order, the Court of Appeals vacated the stay, stating that NRDC had shown "a strong likelihood of success on the merits" and that preliminary injunctive relief was appropriate. 508 F. 3d 885, 886 (2007). The Court of Appeals remanded, however, instructing the District Court to provide mitigation measures under which the Navy could conduct its remaining exercises. On remand, the District Court received briefing from both parties. In addition, the court "toured the USS Milius at the naval base in San Diego, California, to improve its understanding of the Navy's sonar training procedures and the feasibility of the parties' proposed mitigation measures. Counsel for both [parties] were present." 530 F. Supp. 2d 1110, 1112 (2008). On January 3, 2008, the District Court entered a modified preliminary injunction imposing six mitigation measures. The court revised the modified injunction slightly on January 10 in response to filings by the Navy, and four days later, denied the Navy's application for a stay pending appeal. On the following day, January 15, the Council on Environmental Quality (CEQ), an advisory body within the Executive Office of the President, responded to the Navy's request for "alternative arrangements" for NEPA compliance. App. L to Pet. for Cert. 233a. The "arrangements" CEQ set out purported to permit the Navy to continue its training without timely environmental review. Id., at 241a-247a. The Navy accepted the arrangements on the same day. App. 228. The Navy then filed an emergency motion in the Court of Appeals requesting immediate vacatur of the District Court's modified injunction. CEQ's action, the Navy urged, eliminated the injunction's legal foundation. In the alternative, the Navy sought a stay of two aspects of the injunction pending its appeal: the 2,200-yard mandatory shutdown zone and the power-down requirement in significant surface ducting conditions, see ante, at 7-8. While targeting in its stay application only two of the six measures imposed by the District Court, the Navy explicitly reserved the right to challenge on appeal each of the six mitigation measures. Responding to the Navy's emergency motion, the Court of Appeals remanded the matter to allow the District Court to determine in the first instance the effect of the intervening executive action. Pending its own consideration of the Navy's motion, the District Court stayed the injunction, and the Navy conducted its sixth exercise. On February 4, after briefing and oral argument, the District Court denied the Navy's motion. The Navy appealed, reiterating its position that CEQ's action eliminated all justification for the injunction. The Navy also argued that vacatur of the entire injunction was required irrespective of CEQ's action, in part because the "conditions imposed, in particular the 2,200 yard mandatory shutdown zone and the six decibel (75%) power-down in significant surface ducting conditions, severely degrade the Navy's training." Brief for Appellants in No. 08-55054 (CA9), p. 15. In the February 29 decision now under review, the Court of Appeals affirmed the District Court's judgment. 518 F. 3d 658, 703 (2008). The Navy has continued training in the meantime and plans to complete its final exercise in December 2008. As the procedural history indicates, the courts below determined that an EIS was required for the 14 exercises. The Navy does not challenge that decision in this Court. Instead, the Navy defends its failure to complete an EIS before launching the exercises based upon CEQ's "alternative arrangements"--arrangements the Navy sought and obtained in order to overcome the lower courts' rulings. As explained below, the Navy's actions undermined NEPA and took an extraordinary course.II NEPA "promotes its sweeping commitment" to environmental integrity "by focusing Government and public attention on the environmental effects of proposed agency action." Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 371 (1989). "By so focusing agency attention, NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Ibid. The EIS is NEPA's core requirement. Department of Transportation v. Public Citizen, 541 U. S. 752, 757 (2004). This Court has characterized the requirement as "action-forcing." Andrus v. Sierra Club, 442 U. S. 347, 350 (1979) (internal quotation marks omitted). Environmental concerns must be "integrated into the very process of agency decisionmaking" and "interwoven into the fabric of agency planning." Id., at 350-351. In addition to discussing potential consequences, an EIS must describe potential mitigation measures and alternatives to the proposed course of action. See Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 351-352 (1989) (citing 40 CFR §§1508.25(b), 1502.14(f), 1502.16(h), 1505.2(c) (1987)). The EIS requirement "ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." 490 U. S., at 349. "Publication of an EIS ... also serves a larger informational role." Ibid. It demonstrates that an agency has indeed considered environmental concerns, and "perhaps more significantly, provides a springboard for public comment." Ibid. At the same time, it affords other affected governmental bodies "notice of the expected consequences and the opportunity to plan and implement corrective measures in a timely manner." Id., at 350. In light of these objectives, the timing of an EIS is critical. CEQ regulations instruct agencies to "integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values." 40 CFR §1501.2 (1987). An EIS must be prepared "early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made." Andrus, 442 U. S., at 351-352, n. 3 (quoting 40 CFR §1502.5 (1979)). The Navy's publication of its EIS in this case, scheduled to occur after the 14 exercises are completed, defeats NEPA's informational and participatory purposes. The Navy's inverted timing, it bears emphasis, is the very reason why the District Court had to confront the question of mitigation measures at all. Had the Navy prepared a legally sufficient EIS before beginning the SOCAL exercises, NEPA would have functioned as its drafters intended: The EIS process and associated public input might have convinced the Navy voluntarily to adopt mitigation measures, but NEPA itself would not have impeded the Navy's exercises. See Public Citizen, 541 U. S., at 756, 769, n. 2 (noting that NEPA does not mandate particular results, but rather establishes procedural requirements with a "focus on improving agency decisionmaking"). The Navy had other options. Most importantly, it could have requested assistance from Congress. The Government has sometimes obtained congressional authorization to proceed with planned activities without fulfilling NEPA's requirements. See, e.g., Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001, Pub. L. 106-398, §317, 114 Stat. 1654A-57 (exempting the military from preparing a programmatic EIS for low-level flight training); 42 U. S. C. §10141(c) (exempting the Environmental Protection Agency from preparing an EIS for the development of criteria for handling spent nuclear fuel and high-level radioactive waste); 43 U. S. C. §1652(d) (exempting construction of the trans-Alaska oil pipeline from further NEPA compliance). Rather than resorting to Congress, the Navy "sought relief from the Executive Branch." Ante, at 8. On January 10, 2008, the Navy asked CEQ, adviser to the President, to approve alternative arrangements for NEPA compliance pursuant to 40 CFR §1506.11 (1987). App. L to Pet. for Cert. 233a; see ante, at 8, n. 3. The next day, the Navy submitted supplementary material to CEQ, including the Navy's EA and after-action reports, the District Court's orders, and two analyses by the National Marine Fisheries Service (NMFS). App. L to Pet. for Cert. 237a-238a. Neither the Navy nor CEQ notified NRDC, and CEQ did not request or consider any of the materials underlying the District Court orders it addressed. Four days later, on January 15, the Chairman of CEQ issued a letter to the Secretary of the Navy. Repeating the Navy's submissions with little independent analysis, the letter stated that the District Court's orders posed risks to the Navy's training exercises. See id., at 238a ("You have explained that the training restrictions set forth in the ... injunctive orders prevent the Navy from providing Strike Groups with adequate proficiency training and create a substantial risk of precluding certification of the Strike Groups as combat ready."). The letter continued:"Discussions between our staffs, your letter and supporting documents, and the classified declaration and briefings I have received, have clearly determined that the Navy cannot ensure the necessary training to certify strike groups for deployment under the terms of the injunctive orders. Based on the record supporting your request ... CEQ has concluded that the Navy must be able to conduct the [exercises] ... in a timeframe that does not provide sufficient time to complete an EIS. Therefore, emergency circumstances are present for the nine exercises and alternative arrangements for compliance with NEPA under CEQ regulation 40 C.F.R. §1506.11 are warranted." Id., at 240a. The alternative arrangements CEQ set forth do not vindicate NEPA's objectives. The arrangements provide for "public participation measures," which require the Navy to provide notices of the alternative arrangements. Id., at 242a. The notices must "seek input on the process for reviewing post-exercise assessments" and "include an offer to meet jointly with Navy representatives ... and CEQ to discuss the alternative arrangements." Id., at 242a-243a. The alternative arrangements also describe the Navy's existing research and mitigation efforts. Id., at 243a-247a. CEQ's hasty decision on a one-sided record is no substitute for the District Court's considered judgment based on a two-sided record.2 More fundamentally, even an exemplary CEQ review could not have effected the short circuit the Navy sought. CEQ lacks authority to absolve an agency of its statutory duty to prepare an EIS. NEPA established CEQ to assist and advise the President on environmental policyC. §4342, and a 1977 Executive Order charged CEQ with issuing regulations to federal agencies for implementation of NEPA's procedural provisions, Exec. Order No. 11991, 3 CFR 123 (1977 Comp.). This Court has recognized that CEQ's regulations are entitled to "substantial deference," Robertson, 490 U. S., at 355, and §1506.11 indicates that CEQ may play an important consultative role in emergency circumstances, but we have never suggested that CEQ could eliminate the statute's command. If the Navy sought to avoid its NEPA obligations, its remedy lay in the Legislative Branch. The Navy's alternative course — rapid, self-serving resort to an office in the White House — is surely not what Congress had in mind when it instructed agencies to comply with NEPA "to the fullest extent possible." C. §4332.3IIIA Flexibility is a hallmark of equity jurisdiction. "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it." Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982) (quoting Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944)). Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a "sliding scale," sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3, p. 195 (2d ed. 1995). This Court has never rejected that formulation, and I do not believe it does so today. Equity's flexibility is important in the NEPA context. Because an EIS is the tool for uncovering environmental harm, environmental plaintiffs may often rely more heavily on their probability of success than the likelihood of harm. The Court is correct that relief is not warranted "simply to prevent the possibility of some remote future injury." Ante, at 12 (quoting Wright & Miller, supra, §2948.1, at 155). "However, the injury need not have been inflicted when application is made or be certain to occur; a strong threat of irreparable injury before trial is an adequate basis." Wright & Miller, supra, §2948.1, at 155-156 (footnote omitted). I agree with the District Court that NRDC made the required showing here.B The Navy's own EA predicted substantial and irreparable harm to marine mammals. Sonar is linked to mass strandings of marine mammals, hemorrhaging around the brain and ears, acute spongiotic changes in the central nervous system, and lesions in vital organs. E.g., App. 600-602; 360-362; 478-479. As the Ninth Circuit noted, the EA predicts that the Navy's "use of MFA sonar in the SOCAL exercises will result in 564 instances of physical injury including permanent hearing loss (Level A harassment) and nearly 170,000 behavioral disturbances (Level B harassment), more than 8,000 of which would also involve temporary hearing loss." 518 F. 3d, at 696; see App. 223-224. Within those totals,"the EA predicts 436 Level A harassments of Cuvier's beaked whales, of which, according to NOAA, as few as 1,121 may exist in California, Oregon and Washington combined. Likewise, the EA predicts 1,092 Level B harassments of bottlenose dolphins, of which only 5,271 may exist in the California Coastal and Offshore stocks." 518 F. 3d, at 691-692. The majority acknowledges the lower courts' findings, ante, at 9, but also states that the EA predicted "only eight Level A harassments of common dolphins each year" and "274 Level B harassments of beaked whales per year, none of which would result in permanent injury," ante, at 6. Those numbers do not fully capture the EA's predictions. The EA classified the harassments of beaked whales as Level A, not Level B. The EA does indeed state that "modeling predicts non-injurious Level B exposures." App. 185. But, as the majority correctly notes, ante, at 6, the EA also states that "all beaked whale exposures are counted as Level A," App. 185. The EA counted the predicted exposures as Level A "[b]y Navy policy developed in conjunction with NMFS." Id., at 200. The record reflects "the known sensitivity of these species to tactical sonar," id., at 365 (National Oceanic and Atmospheric Administration letter), and as the majority acknowledges, beaked whales are difficult to study, ante, at 6. Further, as the Ninth Circuit noted, "the EA ... maintained that the methodology used was based on the 'best available science.' " 518 F. 3d, at 669.4 In my view, this likely harm — 170,000 behavioral disturbances, including 8,000 instances of temporary hearing loss; and 564 Level A harms, including 436 injuries to a beaked whale population numbering only 1,121 — cannot be lightly dismissed, even in the face of an alleged risk to the effectiveness of the Navy's 14 training exercises. There is no doubt that the training exercises serve critical interests. But those interests do not authorize the Navy to violate a statutory command, especially when recourse to the Legislature remains open. "Of course, military interests do not always trump other considerations, and we have not held that they do." Ante, at 16. In light of the likely, substantial harm to the environment, NRDC's almost inevitable success on the merits of its claim that NEPA required the Navy to prepare an EIS, the history of this litigation, and the public interest, I cannot agree that the mitigation measures the District Court imposed signal an abuse of discretion. Cf. Amoco Production Co. v. Gambell, 480 U. S. 531, 545 (1987) ("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."). For the reasons stated, I would affirm the judgment of the Ninth Circuit.DONALD C. WINTER, SECRETARY OF THE NAVY, et al., PETITIONERS v. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al.on writ of certiorari to the united states court of appeals for the ninth circuit[November 12, 2008] Justice Breyer, with whom Justice Stevens joins as to Part I, concurring in part and dissenting in part. As of December 2006, the United States Navy planned to engage in a series of 14 antisubmarine warfare training exercises off the southern California coast. The Natural Resources Defense Council, Inc., and others (hereinafter NRDC) brought this case in Federal District Court claiming that the National Environmental Policy Act of 1969 (NEPA) requires the Navy to prepare an environmental impact statement (EIS) (assessing the impact of the exercises on marine mammals) prior to its engaging in the exercises. As the case reaches us, the District Court has found that the NRDC will likely prevail on its demand for an EIS; the Navy has agreed to prepare an EIS; the District Court has forbidden the Navy to proceed with the exercises unless it adopts six mitigating measures; and the Navy has agreed to adopt all but two of those measures. The controversy between the parties now concerns the two measures that the Navy is unwilling to adopt. The first concerns the "shutdown zone," a circle with a ship at the center within which the Navy must try to spot marine mammals and shut down its sonar if one is found. The controverted condition would enlarge the radius of that circle from about one-tenth of a mile (200 yards) to one and one-quarter mile (2,200 yards). The second concerns special ocean conditions called "surface ducting conditions." The controverted condition would require the Navy, when it encounters any such condition, to diminish the sonar's power by 75%. The Court of Appeals affirmed the District Court order that contained these two conditions. 518 F. 3d 658, 703 (CA9 2008).I We must now decide whether the District Court was legally correct in forbidding the training exercises unless the Navy implemented the two controverted conditions. In doing so, I assume, like the Court, that the NRDC will prevail on its demand for an EIS. (Indeed, the Navy is in the process of preparing one.) And, I would ask whether, in imposing these conditions, the District Court properly "balance[d the] harms." See, e.g., Amoco Production Co. v. Gambell, 480 U. S. 531, 545 (1987). Respondents' (hereinafter plaintiffs) argument favoring the District Court injunction is a strong one. As Justice Ginsburg well points out, see post, at 4-5 (dissenting opinion), the very point of NEPA's insistence upon the writing of an EIS is to force an agency "carefully" to "consider ... detailed information concerning significant environmental impacts," while "giv[ing] the public the assurance that the agency 'has indeed considered environmental concerns in its decisionmaking process.' " Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 349 (1989). NEPA seeks to assure that when Government officials consider taking action that may affect the environment, they do so fully aware of the relevant environmental considerations. An EIS does not force them to make any particular decision, but it does lead them to take environmental considerations into account when they decide whether, or how, to act. Id., at 354. Thus, when a decision to which EIS obligations attach is made without the informed environmental consideration that NEPA requires, much of the harm that NEPA seeks to prevent has already taken place. In this case, for example, the absence of an injunction means that the Navy will proceed with its exercises in the absence of the fuller consideration of environmental effects that an EIS is intended to bring. The absence of an injunction thereby threatens to cause the very environmental harm that a full preaction EIS might have led the Navy to avoid (say, by adopting the two additional mitigation measures that the NRDC proposes). Consequently, if the exercises are to continue, conditions designed to mitigate interim environmental harm may well be appropriate. On the other hand, several features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction imposing the two controverted requirements. First, the evidence of need for the two special conditions is weak or uncertain. The record does show that the exercises as the Navy originally proposed them could harm marine mammals. The District Court found (based on the Navy's study of the matter) that the exercises might cause 466 instances of Level A harm and 170,000 instances of Level B harm. App. to Pet. for Cert. 196a-197a. (The environmental assessment (EA) actually predicted 564 instances of Level A harm. See App. 223-224.) The study defines Level A injury as "any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild" through "destruction or loss of biological tissue," whether "slight to severe." Id., at 160. It defines Level B harm as " 'any act that disturbs or is likely to disturb a marine mammal ... by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered' " and describes it as a "short term" and "temporary" "disturbance." Id., at 161, 175. The raw numbers seem large. But the parties argue about the extent to which they mean likely harm. The Navy says the classifications and estimates err on the side of caution. (When in doubt about the amount of harm to a mammal, the study assumed the harm would qualify as Level A harassment. Id., at 200.) The Navy also points out that, by definition, mammals recover from Level B injuries, often very quickly. It notes that, despite 40 years of naval exercises off the southern California coast, no injured marine mammal has ever been found. App. to Pet. for Cert. 274a-275a. (It adds that dolphins often swim alongside the ships. Id., at 290, 346.) At the same time, plaintiffs point to instances where whales have been found stranded. They add that scientific studies have found a connection between those beachings and the Navy's use of sonar, see, e.g., App. 600-602, and the Navy has even acknowledged one stranding where "U. S. Navy mid-frequency sonar has been identified as the most plausible contributory source to the stranding event," id., at 168. Given the uncertainty the figures create in respect to the harm caused by the Navy's original training plans, it would seem important to have before us at least some estimate of the harm likely avoided by the Navy's decision not to contest here four of the six mitigating conditions that the District Court ordered. Without such evidence, it is difficult to assess the relevant harm — that is, the environmental harm likely caused by the Navy's exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place. Second, the Navy has filed multiple affidavits from Navy officials explaining in detail the seriousness of the harm that the delay associated with completion of this EIS (approximately one year) would create in respect to the Navy's ability to maintain an adequate national defense. See generally App. to Pet. for Cert. 260a-357a. Taken by themselves, those affidavits make a strong case for the proposition that insistence upon the two additional mitigating conditions would seriously interfere with necessary defense training. The affidavits explain the importance of training in antisubmarine warfare, id., at 263a; the need to use active sonar to detect enemy submarines, id., at 266a-267a, App. 566; the complexity of a training exercise involving sonar, App. to Pet. for Cert. 343a; the need for realistic conditions when training exercises take place, id., at 299a-300a, App. 566; the "cascading" negative "effect" that delay in one important aspect of a set of coordinated training exercises has upon the Navy's ability "to provide combat ready forces," App. to Pet. for Cert. 343a; the cost and disruption that would accompany the adoption of the two additional mitigating conditions that the NRDC seeks, ibid.; the Navy's resulting inability adequately to train personnel, id., at 278a; the effectiveness of the mammal-protecting measures that the Navy has taken in the past, id., at 285a-298a; and the reasonable likelihood that the mitigating conditions to which it has agreed will prove adequate, id., at 296a. Third, and particularly important in my view, the District Court did not explain why it rejected the Navy's affidavit-supported contentions. In its first opinion enjoining the use of sonar, the District Court simply stated: "The Court is ... satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using [mid-frequency active (MFA)] sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." Id., at 217a-218a.Following remand from the Court of Appeals, the District Court simply repeated, word for word, this same statement. It said:"The Court is ... satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur (or the public interest would suffer) if Defendants were prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." 530 F. Supp. 2d 1110, 1118 (CD Cal. 2008).With respect to the imposition of the 2,200 yard shutdown zone, the District Court noted evidence of the harm that MFA sonar poses to marine mammals, and then concluded that "[t]he Court therefore is persuaded that while the 2200 yard shutdown requirement may protect marine mammals from the harshest of sonar-related consequences, it represents a minimal imposition [on] the Navy's training exercises." Id., at 1119. The District Court did not there explain the basis for that conclusion. With respect to the imposition of the surface ducting condition, the District Court said nothing about the Navy's interests at all. Id., at 1120-1121. While a District Court is often free simply to state its conclusion in summary fashion, in this instance neither that conclusion, nor anything else I have found in the District Court's opinion, answers the Navy's documented claims that the two extra conditions the District Court imposed will, in effect, seriously interfere with its ability to carry out necessary training exercises. The first condition requires the Navy to reduce the power of its sonar equipment by 75% when the ship encounters a condition called "surface ducting" that occurs when the presence of layers of water of different temperature make it unusually difficult for sonar operators to determine whether a diesel submarine is hiding below. Rear Admiral John Bird, an expert in submarine warfare, made clear that the 75% power-reduction requirement was equivalent to forbidding any related training. App. to Pet. for Cert. 297a. But he says in paragraph 52 of his declaration: "Training in surface ducting conditions is critical to effective training because sonar operators need to learn how sonar transmissions are altered due to surface ducting and how submarines may take advantage of them." Id., at 299a-300a. The District Court, as far as I can tell, did not even acknowledge in its opinion the Navy's asserted interest in being able to train under these conditions. 530 F. Supp. 2d, at 1120-1121. The second condition requires the Navy to expand the sonar "shutdown" area surrounding a ship (i.e., turn off the sonar if a mammal is spotted in the area) from a circle with a radius of about one-tenth of a mile to a circle with a radius of about one mile and a quarter. Both sides agree that this requirement will lead to more shutdowns. Admiral Gary Roughead, Chief of Naval Operations, states in paragraph 12 of his declaration that this expanded zone requirement "will result in increased interruptions to training exercises, ... vastly increas[ing] the risk of negating training effectiveness, preventing strike group certification, and disrupting carefully orchestrated deployment plans to meet world-wide operational commitments." App. to Pet. for Cert. 344a. Again, I can find nothing in the District Court's opinion that specifically explains why this is not so. 530 F. Supp. 2d, at 1119-1120. Fourth, the Court of Appeals sought, through its own thorough examination of the record, to supply the missing explanations. But those explanations are not sufficient. In respect to the surface ducting conditions, the Court of Appeals rejected the Navy's contentions on the ground that those conditions are "rar[e]," and the Navy has certified trainings that did not involve any encounter with those conditions. 518 F. 3d, at 701-702. I am not certain, however, why the rarity of the condition supports the District Court's conclusion. Rarity argues as strongly for training when the condition is encountered as it argues for the contrary. In respect to the expansion of the "shutdown" area, the Court of Appeals noted that (1) the Navy in earlier exercises had shut down its sonar when marine mammals were sited within about one-half a mile, (2) the Navy has used a larger shutdown area when engaged in exercises with lower frequency sonar equipment, and (3) foreign navies have used larger shutdown areas. Id., at 699-701, and nn. 63, 67. But the Navy's affidavits state that (1) earlier shutdowns when marine mammals were spotted at farther distances "likely occurred during tactically insignificant times," App. to Pet. for Cert. 356a, (2) ships with low frequency sonar (unlike the sonar here at issue) have equipment that makes it easier to monitor the larger area, particularly by significantly reducing the number of monitoring personnel necessarily involved, and (3) foreign navy experience is not relevant given the potentially different military demands upon those navies, App. 508-509. Finally, the Court of Appeals, mirroring a similar District Court suggestion in the language I have quoted, says that "the exercises in southern California are only a subset of the Navy's training activities involving active sonar." 518 F. 3d, at 702. It adds that the Navy's study "shows the Navy is still able to conduct its exercises in alternative locations, in reduced number, or through simulation." Ibid., n. 69. The Court of Appeals, however, also concluded that the study "provides reasonably detailed justifications for why the Southern California Operating Area is uniquely suited to these exercises, and demonstrates that the Navy would suffer a certain hardship if the considered alternatives were employed instead." Ibid. Fifth, when the Court of Appeals first heard this case following the District Court's imposition of a broad, absolute injunction, it held that any injunction must be crafted so that the Navy could continue its training exercises. Noting that the Navy had, in the past, been able to use mitigation measures to "reduce the harmful effects of its active sonar," it "vacate[d] the stay and remand[ed] this matter to the district court to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." 508 F. 3d 885, 887 (CA9 2007) (emphasis added). For the reasons just stated, neither the District Court nor the Court of Appeals has explained why we should reject the Navy's assertions that it cannot effectively conduct its training exercises under the mitigation conditions imposed by the District Court. I would thus vacate the preliminary injunction imposed by the District Court to the extent it has been challenged by the Navy. Neither the District Court nor the Court of Appeals has adequately explained its conclusion that the balance of the equities tips in favor of plaintiffs. Nor do those parts of the record to which the parties have pointed supply the missing explanation. II Nonetheless, as the Court of Appeals held when it first considered this case, the Navy's past use of mitigation conditions makes clear that the Navy can effectively train under some mitigation conditions. In the ordinary course, I would remand so the District Court could, pursuant to the Court of Appeals' direction, set forth mitigation conditions that will protect the marine wildlife while also enabling the Navy to carry out its exercises. But, at this point, the Navy has informed us that this set of exercises will be complete by January, at the latest, and an EIS will likely be complete at that point, as well. Thus, by the time the District Court would have an opportunity to impose new conditions, the case could very well be moot. In February of this year, the Court of Appeals stayed the injunction imposed by the District Court — but only pending this Court's resolution of the case. The Court of Appeals concluded that "[i]n light of the short time before the Navy is to commence its next exercise, the importance of the Navy's mission to provide for the national defense and the representation by the Chief of Naval Operations that the district court's preliminary injunction in its current form will 'unacceptably risk' effective training and strike group certification and thereby interfere with his statutory responsibility ... to 'organiz[e], train[], and equip[] the Navy,' " interim relief was appropriate, and the court then modified the two mitigation conditions at issue. 518 F. 3d 704, 705 (CA9 2008). With respect to the 2,200 yard shutdown zone, it required the Navy to suspend its use of the sonar if a marine mammal is detected within 2,200 yards, except when sonar is being used at a "critical point in the exercise," in which case the amount by which the Navy must power down is proportional to the mammal's proximity to the sonar. Id., at 705-706 (internal quotation marks omitted). With respect to surface ducting, the Navy is only required to shut down sonar altogether when a marine mammal is detected within 500 meters and the amount by which it is otherwise required to power down is again proportional to the mammal's proximity to the sonar source. Id., at 705-706. The court believed these conditions would permit the Navy to go forward with its imminently planned exercises while at the same time minimizing the harm to marine wildlife. In my view, the modified conditions imposed by the Court of Appeals in its February stay order reflect the best equitable conditions that can be created in the short time available before the exercises are complete and the EIS is ready. The Navy has been training under these conditions since February, so allowing them to remain in place will, in effect, maintain what has become the status quo. Therefore, I would modify the Court of Appeals' February 29, 2008, order so that the provisional conditions it contains remain in place until the Navy's completion of an acceptable EIS. FOOTNOTESFootnote 1 In contrast, passive sonar "listens" for sound waves but does not introduce sound into the water. Passive sonar is not effective for tracking diesel-electric submarines because those vessels can operate almost silently. Passive sonar also has a more limited range than active sonar, and cannot identify the exact location of an enemy submarine. Pet. App. 266a-271a.Footnote 2 The CZMA states that federal agencies taking actions "that affec[t] any land or water use or natural resources of the coastal zone" shall carry out these activities "in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs." 16 U. S. C. §1456(c)(1)(A).Footnote 3 That provision states in full: "Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review."Footnote 4 The Ninth Circuit's discussion of the plaintiffs' likelihood of success was limited to their NEPA claims. The court did not discuss claims under the CZMA or ESA.Footnote 5 The bulk of Justice Ginsburg's dissent is devoted to the merits. For the reasons stated, we find the injunctive relief granted in this case an abuse of discretion, even if plaintiffs are correct on the underlying merits. As to the injunction, the dissent barely mentions the Navy's interests. Post, at 11. We find that those interests, and the documented risks to national security, clearly outweigh the harm on the other side of the balance. We agree with much of Justice Breyer's analysis, post, at 3-9 (opinion concurring in part and dissenting in part), but disagree with his conclusion that the modified conditions imposed by the stay order should remain in force until the Navy completes its EIS, post, at 9-11. The Court is reviewing the District Court's imposition of the preliminary injunction; once we conclude, as Justice Breyer does, post, at 9, that the preliminary injunction should be vacated, the stay order is no longer pertinent. A stay is a useful tool for managing the impact of injunctive relief pending further appeal, but once the Court resolves the merits of the appeal, the stay ceases to be relevant. See 518 F. 3d 704, 706 (CA9 2008) ("the partial stay ... shall remain in effect until final disposition by the Supreme Court"). Unexamined conditions imposed by the stay order are certainly no basis for what would be in effect the entry of a new preliminary injunction by this Court.FOOTNOTESFootnote 1 An EA is used "for determining whether to prepare" an EIS. Department of Transportation v. Public Citizen, 541 U. S. 752, 757 (2004) (quoting 40 CFR §1508.9(a) (2003)); see ante, at 5. By definition, an EA alone does not satisfy an agency's obligation under NEPA if the effects of a proposed action require preparation of a full EIS.Footnote 2 The District Court may well have given too spare an explanation for the balance of hardships in issuing its injunction of August 7, 2007. The court cured any error in this regard, however, when it closely examined each mitigation measure in issuing the modified injunction of January 3, 2008. The Court of Appeals, too, conducted a detailed analysis of the record.Footnote 3 On the same day that CEQ issued its letter, the President granted the Navy an exemption from the requirements of the Coastal Zone Management Act of 1972 (CZMA) pursuant to 16 U. S. C. §1456(c)(1)(B). That exemption, expressly authorized by the CZMA, does not affect NRDC's NEPA claim.Footnote 4 The majority reasons that the environmental harm deserves less weight because the training exercises "have been taking place in SOCAL for the last 40 years," such that "this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the environment." Ante, at 13. But the EA explains that the proposed action is not a continuation of the "status quo training." App. 128. Instead, the EA is based on the Navy's proposal to employ a "surge" training strategy, ibid., in which the commander "would have the option to conduct two concurrent major range events," id., at 124. |
7 | Appellant (MP&L), a subsidiary of Middle South Utilities (MSU), engages in wholesale sales of electricity, which are regulated by the Federal Energy Regulatory Commission (FERC), and in retail sales, which are subject to the jurisdiction of the Mississippi Public Service Commission (MPSC). MSU formed a new subsidiary, Middle South Energy, Inc. (MSE), to undertake the construction of a nuclear powerplant, Grand Gulf, in Mississippi. Although appellant was to operate the plant, Grand Gulf was planned and designed to meet the need of the entire MSU system for a diversified and expanded fuel base. The MPSC approved the application of MP&L and MSE to build Grand Gulf. As Grand Gulf neared completion, MSU filed for FERC's approval agreements allocating Grand Gulf's capacity among its four operating subsidiaries and setting forth, inter alia, wholesale rates for the sale of Grand Gulf's capacity and energy. Following extensive hearings in which parties representing consumer interests and various state regulatory agencies, including the MPSC, participated, FERC entered an order allocating Grand Gulf costs among the members of the MSU system in proportion to their relative demand for energy generated by the system as a whole. The order required appellant to purchase 33% of the plant's output at rates determined by FERC to be just and reasonable. On review, the United States Court of Appeals for the District of Columbia Circuit affirmed. After public hearings, the MPSC granted appellant an increase in its retail rates to enable it to recover the costs of purchasing its FERC-mandated allocation of Grand Gulf power. The Mississippi Attorney General and certain other parties representing Mississippi consumers appealed to the Mississippi Supreme Court, charging that, under state law, the MPSC had exceeded its authority by adopting retail rates to pay Grand Gulf expenses without first determining that the expenses were prudently incurred. The court agreed and remanded the case, concluding that requiring the MPSC to review the prudence of management decisions incurring costs associated with Grand Gulf would not violate the Supremacy Clause of the Federal Constitution. The court rejected appellant's argument that a state prudence review was foreclosed by the decision in Nantahala Power & Light Co. v. Thornburg, , which barred a State from setting retail rates that did not take into account FERC's allocation of power between two related utility companies.Held: The FERC proceedings pre-empted a prudence inquiry by the MPSC. The decision in Nantahala rests on a foundation that is broad enough to support the order entered by FERC here and to require the MPSC to treat appellant's FERC-mandated payments for Grand Gulf costs as reasonably incurred operating expenses for the purpose of setting appellant's retail rates. Nantahala relied on the fundamental pre-emption principles, applicable here, that FERC has exclusive authority to determine the reasonableness of wholesale rates; that FERC's exclusive jurisdiction applies not only to rates but also to power allocations that affect wholesale rates; and that States may not bar regulated utilities from passing through to retail consumers FERC-mandated wholesale rates. The Supremacy Clause compels the MPSC to permit appellant to recover as a reasonable operating expense costs incurred as a result of paying a FERC-determined wholesale rate for a FERC-mandated allocation of power. The Mississippi Supreme Court erred in adopting the view that the pre-emptive effect of FERC jurisdiction turned on whether a particular matter (here, the "prudence" question) was actually determined in the FERC proceedings. The reasonableness of rates and agreements regulated by FERC may not be collaterally attacked in state or federal courts. Here, the question of prudence was not discussed in the proceedings before FERC or on review by the Court of Appeals because no party raised the issue, not because it was a matter beyond the scope of FERC's jurisdiction. Moreover, FERC did, in fact, consider and reject some aspects of the prudence review that the Mississippi Supreme Court directed the MPSC to conduct. Pp. 369-377. 506 So.2d 978, reversed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 377. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 383.Rex E. Lee argued the cause for appellant. With him on the brief were George L. Saunders, Jr., David W. Carpenter, Robert R. Nordhaus, Howard E. Shapiro, and James K. Child, Jr.Deputy Solicitor General Cohen argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Fried, Richard J. Lazarus, Catherine C. Cook, and Jerome M. Feit.John L. Maxey II argued the cause for appellees. With him on the brief for appellee State of Mississippi were Mike Moore, Attorney General, Frank Spencer, Assistant Attorney General, and W. Glenn Watts, Special Assistant Attorney General. Jesse C. Pennington and Lewis Burke filed a brief for appellee Mississippi Legal Services Coalition.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the Consumer Federation of America et al. by Scott Hempling and Roger Colton; for the National Association of State Utility Consumer Advocates by Raymon E. Lark, Jr., Elizabeth Elliot, and Steven W. Hamm; and for the National Governors' Association et al. by Benna Ruth Solomon and Robert H. Loeffler.Briefs of amici curiae were filed for the Council of the city of New Orleans by Clinton A. Vince; for the Arkansas Public Service Commission et al. by Steve Clark, Attorney General of Arkansas, and Mary B. Stallcup, Deputy Attorney General, Wallace L. Duncan, James D. Pembroke, and J. Cathy Fogel; and for the Edison Electric Institute by James B. Liberman, and Robert L. Baum.JUSTICE STEVENS delivered the opinion of the Court.On July 1, 1985, Grand Gulf Unit 1, a major nuclear powerplant located in Port Gibson, Mississippi, began commercial operations. An order entered by the Federal Energy Regulatory Commission (FERC) required Mississippi Power and Light Company (MP&L) to purchase 33% of the plant's output at rates determined by FERC to be just and reasonable. The Mississippi Public Service Commission (MPSC) subsequently granted MP&L an increase in its retail rates to enable it to recover the cost of its purchases of Grand Gulf power. On appeal, the Mississippi Supreme Court held that it was error to grant an increase in retail rates without first examining the prudence of the management decisions that led to the construction and completion of Grand Gulf 1. The question presented to us is whether the FERC proceedings have pre-empted such a prudence inquiry by the State Commission. For reasons similar to those set forth in Nantahala Power & Light Co. v. Thornburg, , we conclude that the state proceedings are pre-empted and therefore reverse.IMP&L is one of four operating companies whose voting stock is wholly owned by Middle South Utilities (MSU), a public utility holding company.1 The four companies are engaged both in the wholesale sale of electricity to each other and to companies outside the MSU system and in the retail sale of electricity in separate service areas in Louisiana, Arkansas, Missouri, and Mississippi. Through MSU the four companies operate as an integrated power pool, with all energy in the entire system being distributed by a single dispatch center located in Pine Bluff, Arkansas. Wholesale transactions among the four operating companies historically have been governed by a succession of three "System Agreements," which were filed with FERC in 1951, 1973, and 1982. The System Agreements have provided the basis for planning and operating the companies' generating units on a single-system basis and for equalizing cost imbalances among the four companies.The retail sales of each of the operating companies are regulated by one or more local regulatory agencies. For example, Arkansas Power and Light Company (AP&L) sells in both Arkansas and Missouri and therefore is regulated by both the Arkansas Public Service Commission and the Missouri Public Service Commission. MP&L's retail rates are subject to the jurisdiction of the MPSC.Through the 1950's and into the 1960's, most of the MSU system's generating plants were fueled with oil or gas. In the late 1960's, the MSU system sought to meet projected increases in demand and to diversify its fuel base by adding coal and nuclear generating units. It was originally contemplated that each of the four operating companies would finance and construct a nuclear power facility.2 Consistent with this scheme, MP&L was assigned to construct two nuclear power facilities at Port Gibson, Mississippi, Grand Gulf 1 and 2.3 The Grand Gulf project, however, proved too large for one operating company to finance. MSU therefore formed a new subsidiary, Middle South Energy, Inc. (MSE), to finance, own, and operate Grand Gulf. MSE acquired full title to Grand Gulf, but hired MP&L to design, construct, and operate the facilities.In April 1974, MSE and MP&L applied to MPSC for a certificate of public convenience and necessity authorizing the construction of the plant. The State Commission granted the certificate, noting that MP&L was part of "an integrated electric system" and that "the Grand Gulf Project [would] serve as a major source of baseload capacity for the company and the entire Middle South System pooling arrangement."4 App. to Motion to Dismiss 36-37. By the late 1970's it became apparent that systemwide demand in the ensuing years would be lower than had been forecast, making Grand Gulf's capacity unnecessary. Moreover, regulatory delays, additional construction requirements, and severe inflation frustrated the project. Management decided to halt construction of Grand Gulf 2, but to complete Grand Gulf 1, largely on the assumption that the relatively low cost of nuclear fuel would make the overall cost of Grand Gulf power per kilowatt hour lower than that of alternative energy sources. As it turned out, however, the cost of completing Grand Gulf construction was about six times greater than had been projected.5 Consequently, the wholesale cost of Grand Gulf's power greatly exceeds that of power produced in other system facilities.The four operating companies considered various methods of allocating the cost of Grand Gulf's power. In 1982 MSU filed two agreements with FERC. The first was a new System Agreement, which set forth the terms and conditions for coordinated operations and wholesale transactions among the four companies, including a scheme of "capacity equalization payments," which were designed to ensure that each company contribute proportionately to the total costs of generating power on the system. Transactions related to the purchase of power from Grand Gulf 1, however, were not included in the 1982 System Agreement. The second agreement filed with FERC was the Unit Power Sales Agreement (UPSA), which provided wholesale rates for MSE's sale of Grand Gulf 1 capacity and energy. Under the UPSA, AP&L was not obligated to purchase any of Grand Gulf's capacity; LP&L was obligated to purchase 38.57%, NOPSI 29.8%, and MP&L 31.63%. The FERC ProceedingsFERC assigned the agreements to two different Administrative Law Judges, who were charged with the task of determining whether the agreements were "just and reasonable" within the meaning of the Federal Power Act.6 Extensive hearings were held by each ALJ, in which numerous parties representing consumer interests and the various state regulatory agencies participated. Both judges concluded that because Grand Gulf was designed to serve the needs of the entire MSU system, the failure to distribute the costs associated with Grand Gulf among all members of the system rendered the agreements unduly discriminatory and that costs should be allocated in proportion to each company's relative system demand.7 Middle South Services, Inc., 30 FERC § 63,030, pp. 65,170-65,173 (1985) (1982 System Agreement); Middle South Energy, Inc., 26 FERC § 63,044, pp. 65,105-65,108 (1984) (UPSA).FERC consolidated the decisions of the Administrative Law Judges for review and issued its decision in June 1985. Middle South Energy, Inc., 31 FERC § 61,305. The Commission acknowledged that it had before it difficult cost allocation issues and that there were "no easy answers." After extensive review, FERC concluded that the most equitable result would be to adopt ALJ Liebman's formula for allocating Grand Gulf costs.The Commission affirmed and adopted the findings of the Administrative Law Judges that MSU is a highly integrated and coordinated power pool. It concluded that the result of this integration and coordination was "planning, construction, and operations which [were] conducted primarily for the system as a whole." Id., at 61,645. Because it found that nuclear units on the System had been "planned to meet overall System needs and objectives," it concluded "that some form of equalization of nuclear plant costs [was] necessary to achieve just, reasonable, and non-discriminatory rates among the MSU operating companies." Id., at 61,655. The Commission agreed with the judges that the 1982 System Agreement and the UPSA as filed would not together produce proper cost allocation, but concluded that the 1982 System Agreement in conjunction with ALJ Liebman's allocation of capacity costs associated with Grand Gulf would "achieve just and reasonable results." Ibid. Thus FERC affirmed the allocation of 33% of Grand Gulf's capacity costs to MP&L as just and reasonable. Although it did not expressly discuss the "prudence" of constructing Grand Gulf and bringing it on line, FERC implicitly accepted the uncontroverted testimony of the MSU executives who explained why they believed the decisions to construct and to complete Grand Gulf 1 were sound, and approved the finding that "continuing construction of Grand Gulf Unit No. 1 was prudent because Middle South's executives believed Grand Gulf would enable the Middle South system to diversify its base load fuel mix and, it was projected, at the same time, produce power for a total cost (capacity and energy) which would be less than existing alternatives on the system." 26 FERC, at 65,112-65,113; see 31 FERC, at 61,666 (affirming ALJ Liebman's decision to the extent not modified).The Commission later clarified certain aspects of its previous order in the course of considering several petitions for rehearing. It rejected contentions that its exercise of jurisdiction would destroy effective state regulation of retail rates. Specifically, FERC rejected claims that it could not exercise jurisdiction because such action would result in States being "precluded from judging the prudence of Grand Gulf costs and denied any say in the rate of return imposed as part of these costs" and "imping[e] on the State's paramount authority in certification decisions regarding need, type, and costs of construction of new generating facilities." Middle South Energy, Inc., 32 FERC § 61,425, p. 61,951 (1985). FERC asserted that its opinion was "the result of a careful balancing of the state and Federal interests involved" and that it had paid "careful heed to the impact [its] decision would have on the states." Id., at 61,951-61,952. FERC went on to reject the argument that allocation of Grand Gulf costs should be based on whether individual companies needed Grand Gulf capacity. Since Grand Gulf had been constructed to meet the needs and serve the goals of the entire system, FERC reasoned that "the allocation of Grand Gulf power must rest not on the `needs' of an individual company, but rather on the principles of just, reasonable, non-discriminatory, and non-preferential rates." Id., at 61,958. FERC emphasized that the parties had entered the pooling agreement voluntarily and that its decision did no more than "alter in as limited a means as possible the agreed-upon cost scheme, in order to achieve just, reasonable, non-discriminatory and non-preferential rates." Id., at 61,961.On review, the United States Court of Appeals for the District of Columbia Circuit affirmed FERC's order that the four operating companies share the cost of the system's investment in nuclear energy in proportion to their relative demand for energy generated by the system as a whole. The court first rejected various challenges to FERC's authority to restructure the parties' agreed-upon allocations, holding that the Federal Power Act (FPA) gave FERC the necessary authority. The court then affirmed FERC's allocation of Grand Gulf capacity and costs as both rational and within the Commission's range of discretion to remedy unduly discriminatory rates. Mississippi Industries v. FERCApp. D.C. 244, 285, 808 F.2d 1525, 1566 (1987).8 The State ProceedingsOn November 16, 1984, before the FERC proceedings were completed, MP&L filed an application for a substantial increase in its retail rates. The major portion of the requested increase was based on the assumption that MP&L would be required to purchase 31.63% of the high-cost Grand Gulf power when the unit began operating on July 1, 1985, in accordance with the terms of the UPSA. After public hearings, on June 14, 1985, the Mississippi Commission entered an order allowing MP&L certain additional revenues, but denying MP&L any retail rate relief associated with Grand Gulf Unit 1. App. to Juris. Statement 33a.On June 27, 1985, MP&L applied for rehearing of the order insofar as it denied any rate relief associated with Grand Gulf. As expected, Grand Gulf went on line on July 1, 1985, and MP&L became obligated consistent with FERC's allocation to make net payments of about $27 million per month for Grand Gulf capacity. After public hearings on the rehearing petition, the MPSC found that MP&L would become insolvent if relief were not granted and allowed a rate increase to go into effect to recover a projected annual revenue deficiency of about $327 million. The increase was predicated entirely on the company's need for revenues to cover the purchased power expenses associated with Grand Gulf 1. See id., at 39a.In its order the MPSC noted that petitions for rehearing were pending before FERC, in which the MPSC was continuing to challenge the allocation of 33% of Grand Gulf's power to MP&L. Id., at 28a. It stated that it intended "to vigorously pursue every available legal remedy challenging the validity and fairness of the FERC allocation to MP&L," id., at 51a, and that appropriate rate adjustments would be made if that allocation was changed. The order made no reference to the prudence of the investment in Grand Gulf.The Attorney General of Mississippi and certain other parties representing Mississippi consumers appealed to the Mississippi Supreme Court. Under Mississippi law, the MPSC has authority to establish just and reasonable rates which will lead to a fair rate of return for the utility. Miss. Code Ann. 77-3-39 (Supp. 1987). "A fair return is one which, under prudent and economical management, is just and reasonable to both the public and the utility." Southern Bell Tel. & Tel. Co. v. Mississippi Public Service Comm'n, 237 Miss. 157, 241, 113 So.2d 622, 656 (1959); Mississippi Public Service Comm'n v. Mississippi Power Co., 429 So.2d 883 (Miss. 1983). The appealing parties charged, inter alia, that the MPSC had exceeded the scope of its authority by adopting "retail rates to pay Grand Gulf expenses without first determining that the expenses were prudently incurred." Mississippi ex rel. Pittman v. Mississippi Public Service Comm'n, 506 So.2d 978, 979 (Miss. 1987). The State Supreme Court agreed, rejecting the argument that requiring the MPSC to review the prudence of incurring costs associated with Grand Gulf would violate the Supremacy Clause of the United States Constitution. The court concluded that MP&L and its sister and parent companies were "using the jurisdictional relationship between state and federal regulatory agencies to completely evade a prudency review of Grand Gulf costs" by either state or federal agencies and remanded the case to the MPSC for further proceedings. The court held that FERC's determination that MP&L's assumption of a 33% share of the costs associated with Grand Gulf would be fair to its sister operating companies did not obligate the State to approve a pass-through of those costs to state consumers without a prudence review.9 The court rejected MP&L's argument that the decision of this Court in Nantahala Power & Light Co. v. Thornburg, , which barred the State of North Carolina from setting retail rates that did not take into account FERC's allocation of power between two related utility companies, foreclosed a state prudence review. Nantahala, the state court concluded, simply did not force the "MPSC to set rates based on the construction and operation of a plant (nuclear or otherwise) that generates power that is not needed at a price that is not prudent." 506 So.2d, at 985. The court assumed that only the fact that Grand Gulf was owned by an out-of-state corporation as opposed to MP&L created a question whether a state prudence determination was pre-empted and concluded that that fact was not enough to rob it of authority. The court distinguished Nantahala because that case concerned an agreement allocating low-cost power, and the prudence of purchasing the available low-cost hydroelectric power was never at issue.The state court adopted the view that in determining whether a particular aspect of state regulation was pre-empted by FERC action, the state court should "`examine those matters actually determined, whether expressly or impliedly, by the FERC.'" 506 So.2d, at 986 (quoting Appeal of Sinclair Machine Products, Inc., 126 N. H. 822, 833, 498 A. 2d 696, 704 (1985)). It concluded that "`[a]s to those matters not resolved by the FERC, State regulation is not preempted provided that regulation would not contradict or undermine FERC determinations and federal interests, or impose inconsistent obligations on the utility companies involved.'" 506 So.2d, at 986. The court then noted that FERC "was never presented with the question of whether the completion of Grand Gulf, or its continued operation, was prudent" ibid., and that the Court of Appeals in affirming FERC's allocation had "made no finding with regard to prudency because the issue was not presented." Id., at 987 (emphasis in original). Consistent with this analysis, the Mississippi Supreme Court remanded the case to the MPSC "for a review of the prudency of the Grand Gulf investment." The court specified that this review should "determine whether MP&L, [MSE] and MSU acted reasonably when they constructed Grand Gulf 1, in light of the change in demand for electric power in this state and the sudden escalation of costs." Ibid. Thus the MPSC was directed to examine the prudence of the investment of both domestic and foreign corporations in Grand Gulf "in light of local conditions." Ibid. (emphasis in original).Appellant MP&L contends that our decision in Nantahala, the FPA, and the Commerce Clause require the MPSC in setting retail electric rates to recognize that expenses incurred under FERC wholesale rate decisions that allocate interstate wholesale costs are reasonably incurred operating expenses.10 In essence appellant asserts that FERC's allocation of Grand Gulf power pre-empts the jurisdiction of state regulatory agencies to set retail rates that do not recognize the costs associated with that allocation as reasonable. Appellees contend that the Supremacy Clause does not preclude review of MP&L's managerial prudence and that the effect of pre-emption would be to create a regulatory gap not contemplated by Congress, the Constitution, or this Court.IIWe hold that our decision in Nantahala rests on a foundation that is broad enough to support the order entered by FERC in this case and to require the MPSC to treat MP&L's FERC-mandated payments for Grand Gulf costs as reasonably incurred operating expenses for the purpose of setting MP&L's retail rates. The Mississippi Supreme Court's judgment ordering the MPSC to conduct proceedings to determine whether some or all of the costs were not prudently incurred is pre-empted by federal law and must be reversed.11 In Nantahala we considered the pre-emptive effect of a FERC order that reallocated the respective shares of two affiliated companies' entitlement to low-cost power. Under an agreement between the two affiliated companies, Nantahala, a public utility selling to both retail and wholesale customers in North Carolina, had been allocated 20% of the low-cost power purchased from the Tennessee Valley Authority (TVA), while 80% was reserved for the affiliate whose only customer was their common parent. FERC found that the agreement was unfair to Nantahala and ordered it to file a new wholesale rate schedule based on an entitlement to 22.5% of the low-cost power purchased from TVA. Subsequently, in a retail rate proceeding, the North Carolina Regulatory Commission reexamined the issue and determined that any share less than 24.5% was unfair and therefore ordered Nantahala to calculate its costs for retail ratemaking purposes as though it had received 24.5% of the low-cost power. The effect of the State Commission's order was to force Nantahala to calculate its retail rates as though FERC had allocated it a greater share of the low-cost power and to deny Nantahala the right to recover a portion of the costs it had incurred in paying rates that FERC had determined to be just and reasonable. Although the North Carolina Supreme Court acknowledged FERC's exclusive jurisdiction over wholesale rates, it held that the State Commission's de facto reallocation of low-cost power was "`well within the field of exclusive state rate making authority engendered by the "bright line" between state and federal regulatory jurisdiction under the Federal Power Act.'" Nantahala, 476 U.S., at 961 (quoting State ex rel. Utilities Comm'n v. Nantahala Power & Light Co., 313 N.C. 614, 687-688, 332 S. E. 2d 397, 440-441 (1985)). The state court emphasized that its order did not require Nantahala to violate the FERC order and that it was not expressly contradicting a FERC finding. We rejected these arguments. The reasoning that led to our decision in Nantahala applies with equal force here and compels the same conclusion - States may not alter FERC-ordered allocations of power by substituting their own determinations of what would be just and fair. FERC-mandated allocations of power are binding on the States, and States must treat those allocations as fair and reasonable when determining retail rates.Our decision in Nantahala relied on fundamental principles concerning the pre-emptive impact of federal jurisdiction over wholesale rates on state regulation. First, FERC has exclusive authority to determine the reasonableness of wholesale rates. It is now settled that "`the right to a reasonable rate is the right to the rate which the Commission files or fixes, and, ... except for review of the Commission's orders, [a] court can assume no right to a different one on the ground that, in its opinion, it is the only or the more reasonable one.'" Nantahala, 476 U.S., at 963-964 (quoting Montana-Dakota Utilities Co. v. Northwestern Public Service Co., ). This principle binds both state and federal courts and is in the former respect mandated by the Supremacy Clause. 476 U.S., at 963. Second, FERC's exclusive jurisdiction applies not only to rates but also to power allocations that affect wholesale rates. Id., at 966. Third, States may not bar regulated utilities from passing through to retail consumers FERC-mandated wholesale rates. "The filed rate doctrine ensures that sellers of wholesale power governed by FERC can recover the costs incurred by their payment of just and reasonable FERC-set rates. When FERC sets a rate between a seller of power and a wholesaler-as-buyer, a State may not exercise its undoubted jurisdiction over retail sales to prevent the wholesaler-as-seller from recovering the costs of paying the FERC-approved rate... . Such a `trapping' of costs is prohibited." Id., at 970. These principles led us to hold in Nantahala that the North Carolina Utilities Commission's order "trapping" federally mandated costs was pre-empted. Today they compel us to hold that the MPSC may not enter an order "trapping" the costs MP&L is mandated to pay under the FERC order allocating Grand Gulf power or undertake a "prudence" review for the purpose of deciding whether to enter such an order.12 The facts of this case and Nantahala are not distinguishable in any way that has relevance to the operation of the principles stated above. Both cases concern FERC orders adjusting in the interest of fairness voluntary allocations of power among related entities. Nantahala involved a FERC order fixing the utility's right to acquire low-cost power; this case involves a FERC order fixing MP&L's obligation to acquire high-cost power. In Nantahala FERC had "determined that Nantahala's average cost of power obtained from TVA should be based on a particular allocation of entitlements power, and no other," id., at 971 (emphasis added); in this case FERC has determined that MP&L's cost of power obtained from Grand Gulf should be based on a particular allocation, and no other. In Nantahala the state court attempted to approve retail rates based on the assumption that Nantahala was entitled to more low-cost power than FERC had allocated to it. Here the state court seeks to permit the State to set rates based on an assumption that MP&L is obligated to purchase less Grand Gulf power than FERC has ordered it to purchase.In this case as in Nantahala we hold that "a state utility commission setting retail prices must allow, as reasonable operating expenses, costs incurred as a result of paying a FERC-determined wholesale price... . Once FERC sets such a rate, a State may not conclude in setting retail rates that the FERC-approved wholesale rates are unreasonable. A State must rather give effect to Congress' desire to give FERC plenary authority over interstate wholesale rates, and to ensure that the States do not interfere with this authority." Nantahala, 476 U.S., at 965, 966. Thus we conclude that the Supremacy Clause compels the MPSC to permit MP&L to recover as a reasonable operating expense costs incurred as the result of paying a FERC-determined wholesale rate for a FERC-mandated allocation of power.Appellees seek to characterize this case as falling within facts distinguished in Nantahala. Without purporting to determine the issue, we stated in Nantahala: "[W]e may assume that a particular quantity of power procured by a utility from a particular source could be deemed unreasonably excessive if lower-cost power is available elsewhere, even though the higher-cost power actually purchased is obtained at a FERC-approved, and therefore reasonable, price." Id., at 972 (emphasis in original). As we assumed, it might well be unreasonable for a utility to purchase unnecessary quantities of high-cost power, even at FERC-approved rates, if it had the legal right to refuse to buy that power. But if the integrity of FERC regulation is to be preserved, it obviously cannot be unreasonable for MP&L to procure the particular quantity of high-priced Grand Gulf power that FERC has ordered it to pay for. Just as Nantahala had no legal right to obtain any more low-cost TVA power than the amount allocated by FERC, it is equally clear that MP&L may not pay for less Grand Gulf power than the amount allocated by FERC.The Mississippi Supreme Court erred in adopting the view that the pre-emptive effect of FERC jurisdiction turned on whether a particular matter was actually determined in the FERC proceedings. See 506 So.2d, at 986. We have long rejected this sort of "`case-by-case analysis of the impact of state regulation upon the national interest'" in power regulation cases. Nantahala, 476 U.S., at 966 (quoting FPC v. Southern California Edison Co., ). Congress has drawn a bright line between state and federal authority in the setting of wholesale rates and in the regulation of agreements that affect wholesale rates. States may not regulate in areas where FERC has properly exercised its jurisdiction to determine just and reasonable wholesale rates or to insure that agreements affecting wholesale rates are reasonable. FERC's jurisdiction to adjust the allocations of Grand Gulf power in the UPSA has been established.13 Mississippi, therefore, may not consistent with the Supremacy Clause conduct any proceedings that challenge the reasonableness of FERC's allocation. The reasonableness of rates and agreements regulated by FERC may not be collaterally attacked in state or federal courts. The only appropriate forum for such a challenge is before the Commission or a court reviewing the Commission's order. The Mississippi Supreme Court attached considerable significance to the fact that the prudence of investing in Grand Gulf and bringing it on line was not discussed either in the proceedings before FERC or on review by the United States Court of Appeals for the District of Columbia Circuit. The question of prudence was not discussed, however, because no party raised the issue, not because it was a matter beyond the scope of FERC's jurisdiction. The Mississippi Supreme Court characterized the conduct of MP&L and its sister companies as an effort to "us[e] the jurisdictional relationship between state and federal regulatory agencies to completely evade a prudency review of Grand Gulf costs by either agency." 506 So.2d, at 979. The facts of this case, however, offer no evidence of such subterfuge. The very parties who are appellees here and who urged the Mississippi Supreme Court to order the MPSC to conduct a prudence review were also participants in the proceedings before FERC. The parties to the FERC proceedings recognized the impact that FERC's order would have on the jurisdiction of the state regulatory agencies. See Middle South Energy, Inc., 32 FERC, at 61,951-61,952. Despite that recognition, appellees failed to raise the matter of the prudence of the investment in Grand Gulf before FERC though it was a matter FERC easily could have considered in determining whether to permit MSE to recoup 100% of the costs of Grand Gulf in the wholesale rates it charged to the four operating companies and in allocating Grand Gulf power. See New England Power Co., 31 FERC § 61,047, pp. 61,081-61,084 (1985), enf'd, 800 F.2d 280 (CA1 1986). In fact, FERC did consider and reject some aspects of the prudence review the Mississippi Supreme Court directed the MPSC to conduct. The state court emphasized that the MPSC was to determine whether "MSU and its subsidiaries made reasonable decisions in light of local conditions." 506 So.2d, at 987. FERC rejected, however, the argument that decisions about the allocation of Grand Gulf costs should be made in light of the needs of any one of the operating companies. It emphasized that "the Middle South companies appropriately approach power planning on a systemwide basis, whereby the individual companies' needs are the component parts of the System power plan [and that] [i]mplementation of the System plan ... require[d] that the individual companies' needs be subsumed by the greater interests of the entire System." 32 FERC, at 61,958. Thus FERC's order specifically bars a state regulatory agency from evaluating the prudence of Grand Gulf "in light of local conditions" alone. The state court also directed a "complete review of the transactions between MP&L, [MSE], and MSU, and their effect on Grand Gulf expense." These transactions, however, comprise the very System Agreements between MSU and the operating companies and UPSA evaluated by FERC in the exercise of its jurisdiction over wholesale rates. The MPSC lacks jurisdiction to reevaluate the reasonableness of those transactions. The MPSC cannot evaluate either the prudence of MSU's decision to invest in Grand Gulf and bring it on line or the prudence of MP&L's decision to be a party to agreements to construct and operate Grand Gulf without traversing matters squarely within FERC's jurisdiction.14 There "can be no divided authority over interstate commerce ... the acts of Congress on that subject are supreme and exclusive." Missouri Pacific R. Co. v. Stroud, . Consequently, a state agency's "efforts to regulate commerce must fall when they conflict with or interfere with federal authority over the same activity." Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., . Mississippi's effort to invade the province of federal authority must be rejected. The judgment of the Mississippi Supreme Court is reversed. It is so ordered. |
0 | Respondent's state-court murder conviction and death sentence were affirmed by the Louisiana Supreme Court, and this Court denied his petition for certiorari and request for rehearing. After he unsuccessfully sought habeas corpus relief in the state courts, respondent filed his first federal-court petition for habeas corpus presenting the same issues that had proved unavailing in the state courts. The District Court denied the petition, the Court of Appeals affirmed, and this Court again denied certiorari and a request for a rehearing. Respondent unsuccessfully renewed his attempt to win relief in the state courts, and then filed a second petition for habeas corpus in the District Court, raising two claims that had previously been rejected and two additional claims. The court refused to grant the writ or to stay respondent's execution. The Court of Appeals affirmed the judgment - finding respondent's claims to be without merit - but issued a stay of execution pending either this Court's anticipated review of the law concerning state-court procedures for review of the "proportionality" of death sentences, or this Court's "further directions."Held: The stay was improvidently entered by the Court of Appeals. The standard for determining whether a court of appeals' stay pending disposition of a petition for certiorari should continue in effect, is whether there exists a reasonable probability that four Members of this Court will consider the underlying issue sufficiently meritorious for the grant of certiorari. None of respondent's claims - challenging the constitutionality of (1) the Louisiana Supreme Court's review of the proportionality of his death sentence on a districtwide rather than a statewide basis, (2) the prosecutor's closing argument, (3) the trial court's instruction on lesser offenses, and (4) the exclusion for cause of certain veniremen, thus depriving respondent of a "representative" jury - warrant certiorari and plenary consideration. The arguments that respondent raised for the first time in these proceedings are insubstantial, and the arguments that he has attempted to relitigate are no more persuasive now than they were when they were first rejected. Application to vacate stay granted.PER CURIAM.On October 23, 1983, less than two days before Williams' scheduled execution, the Court of Appeals for the Fifth Circuit stayed the execution "pending final action of the Supreme Court." Because we agree with applicant that the stay was improvidently imposed, we grant his motion to vacate the stay and to allow the State to reschedule Williams' execution.IWilliams was sentenced to death for killing a security guard while robbing a grocery store in Baton Rouge, La. His conviction and sentence were affirmed by the Louisiana Supreme Court. State v. Williams, 383 So.2d 369 (1980). After we denied Williams' petition for certiorari, , and his request for rehearing, , he unsuccessfully sought a writ of habeas corpus in the Louisiana state courts. He then filed his first petition for habeas corpus in the District Court for the Middle District of Louisiana, presenting the same 13 issues that had proved unavailing in the state courts. The District Court held no hearing, but issued a written opinion denying Williams' petition. See Williams v. Blackburn, 649 F.2d 1019, 1021-1026 (CA5 1981) (incorporating District Court's decision). The District Court's judgment was affirmed by a panel of the Court of Appeals for the Fifth Circuit, ibid., but an order was entered directing that the appeal be reheard en banc. On rehearing, the en banc Court of Appeals rejected each of Williams' many objections to his conviction and sentence and affirmed the judgment of the District Court. Williams v. Maggio, 679 F.2d 381 (1982) (en banc). On June 27, 1983, we again denied Williams' petition for certiorari, , and we denied his request for rehearing on September 8, 1983, .After unsuccessfully renewing his attempt to win relief in the state courts, Williams filed a second petition for habeas corpus in the District Court, raising two claims that had previously been rejected and two additional claims. The District Court issued a detailed opinion in which it refused to grant the writ or to stay Williams' execution. Williams v. King, 573 F. Supp. 525 (1983). Because it believed Williams' contentions to be "frivolous and without merit," the District Court also denied his request for a certificate of probable cause, which, under 28 U.S.C. 2253, is a prerequisite to an appeal. The Fifth Circuit granted a certificate of probable cause and affirmed the judgment of the District Court, but nevertheless issued a stay. The court reviewed Williams' claims and "expressly [found] that each is without merit." Williams v. King, 719 F.2d 730, 733 (1983). In light of recent actions by this Court, however, the Court of Appeals concluded with respect to Williams' "proportionality" claim that "a complete review of the law on this matter may be anticipated. With a person's life at stake, we must await that review or further directions from the Supreme Court." Ibid.IIJust last Term, we made clear that we would not automatically grant stays of execution in cases where the Court of Appeals had denied a writ of habeas corpus. Barefoot v. Estelle, . A stay application addressed to a Circuit Justice or to the Court will be granted only if there exists "`a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction.'" White v. Florida, (POWELL, J., in chambers) (quoting Times-Picayune Publishing Corp. v. Schulingkamp, (POWELL, J., in chambers)). We perceive no reason to apply a different standard in determining whether a stay granted by a Court of Appeals pending disposition of a petition for certiorari to this Court should continue in effect.The grounds on which Williams would request certiorari are amply evident from his opposition to the motion to vacate the stay, his voluminous filings in the lower courts, and the opinions and proceedings in the District Court and Court of Appeals. None of these claims warrant certiorari and plenary consideration in this case. Accordingly, we conclude that the stay, which the Court of Appeals apparently granted in view of the possibility that we would disagree with its analysis of the constitutional issues raised by Williams, should be vacated.Williams' claims may be summarized briefly. He argues, first, that the Louisiana Supreme Court reviewed the proportionality of his death sentence on a districtwide rather than a statewide basis, and that such review does not adequately ensure that his death sentence has been imposed in a rational and nonarbitrary manner. Second, the prosecutor's closing argument allegedly prejudiced the jury against Williams and elicited a decision based on passion rather than reason. Third, the trial court's instruction on lesser offenses, given despite the absence of evidence warranting such an instruction, is claimed to have violated the rule established in Hopper v. Evans, , and to have denied Williams due process. Fourth, the exclusion for cause of three veniremen who opposed the death penalty at the guilt-innocence phase of Williams' trial, although proper under Witherspoon v. Illinois, , allegedly deprived Williams of a jury representative of a fair cross-section of the community.Williams' second, third, and fourth contentions warrant little discussion. As Williams made clear in his second petition for state habeas corpus, he challenged the prosecutor's closing argument, either directly or indirectly, in his first state habeas proceeding. The Louisiana Supreme Court ultimately rejected his challenge, although two justices indicated that the prosecutor's statements raised a substantial question and one concluded that the statements constituted reversible error. State ex rel. Williams v. Blackburn, 396 So.2d 1249 (1981). Williams' failure to raise this claim in his first federal habeas proceeding is inexcusable, but the District Court nevertheless gave it full consideration in the second federal habeas proceeding. Applying the standard established in Donnelly v. DeChristoforo, , the District Court examined the prosecutor's closing argument at length and concluded that it did not render Williams' trial fundamentally unfair.The trial court's instruction on lesser offenses was clearly proper under state law, and the District Court's review of the record led it to conclude that the evidence fully justified the trial court's charge.Williams' challenge to the exclusion for cause of certain veniremen was previously rejected by the Fifth Circuit and was presented to this Court in his petitions for certiorari and his motion for rehearing following the denial of his second petition. He has now recast his argument as an attack on the representativeness of the jury that convicted him. In Witherspoon, we found the extant evidence insufficient to demonstrate that "the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." 391 U.S., at 518. Williams claims that he is entitled to a hearing on the question whether the jury selection procedures followed here had these effects. But he has not alleged that veniremen were excluded for cause on any broader basis than authorized in Witherspoon. The District Court characterized the evidence proffered by Williams on the question whether the jury was less than neutral with respect to guilt as tentative and fragmentary, and we cannot conclude that it abused its discretion in refusing to hold an evidentiary hearing on this issue. Further review is not warranted.Williams' challenge to the Louisiana Supreme Court's proportionality review also does not warrant the issuance of a writ of certiorari. The en banc Fifth Circuit has carefully examined the Louisiana Supreme Court's procedure and found that it "provides adequate safeguards against freakish imposition of capital punishment." Williams v. Maggio, 679 F.2d, at 395. This conclusion was challenged in this Court in Williams' petition for certiorari following the Court of Appeals' decision and in his motion for reconsideration of our denial of that petition. We were, of course, fully aware at that time that we had agreed to decide whether some form of comparative proportionality review is constitutionally required. See Pulley v. Harris, .Since agreeing to decide this issue in Pulley, the Court has consistently denied challenges to the Louisiana Supreme Court's proportionality review scheme that were identical to that raised by Williams. See Lindsey v. Louisiana, post, p. 908; James v. Louisiana, post, p. 908; Sonnier v. Louisiana, , rehearing denied, . See also Narcisse v. Louisiana, post, p. 865. Williams asserts that his execution should be stayed because we have issued a stay in another Louisiana death case, Baldwin v. Maggio, . But our decision there turned not on the substantiality of applicant's Pulley argument, but on the fact that applicant raised a substantial challenge to the effectiveness of his trial counsel, similar to those we shall resolve in two cases set for argument this Term. Strickland v. Washington, ; United States v. Cronic, .As Williams notes, JUSTICE WHITE recently granted a stay in a case raising a proportionality challenge to a death sentence imposed in Texas. Autry v. Estelle, post, p. 1301. Also, on October 31, the Court declined to vacate that stay. Post, p. 925. In that case, however, the Texas Court of Criminal Appeals, like the California Supreme Court in Pulley, had wholly failed to compare applicant's case with other cases to determine whether his death sentence was disproportionate to the punishment imposed on others. Under those circumstances, it was reasonable to conclude that Autry's execution should be stayed pending the decision in Pulley, or until further order of the Court.That is not the case here. Our prior actions are ample evidence that we do not believe that the challenge to districtwide, rather than statewide, proportionality review is an issue warranting a grant of certiorari. Our view remains the same. Nor did Williams convince the lower courts that he might have been prejudiced by the Louisiana Supreme Court's decision to review only cases from the judicial district in which he was convicted. Indeed, the District Court examined every published opinion of the Louisiana Supreme Court affirming a death sentence and concluded that Williams' sentence was not disproportionate regardless of whether the review was conducted on a districtwide or statewide basis. We see no reason to disturb that judgment. Finally, Williams has not shown, nor could he, that the penalty imposed was disproportionate to the crimes he was convicted of committing.IIIThe District Court's careful opinion was fully reviewed by the Court of Appeals, which found no basis for upsetting the District Court's conclusion that Williams' contentions were meritless. The arguments that Williams raised for the first time in these proceedings are insubstantial, and the arguments that he has attempted to relitigate are no more persuasive now than they were when we first rejected them. We conclude, therefore, that the stay entered by the Court of Appeals should be vacated. It is so ordered. JUSTICE STEVENS, concurring in the judgment.In my opinion the application to vacate the stay raises a serious question about the propriety of the prosecutor's argument to the jury at the sentencing phase of respondent's trial. In that argument the prosecutor sought to minimize the jury's responsibility for imposing a death sentence by implying that the verdict was merely a threshold determination that would be corrected by the appellate courts if it were not the proper sentence for this offender. I quote some of that argument: "I want to read you some laws because something they [the defense] said, don't sentence this man to death, don't kill this man. You see, you have the last word on the verdict, and it but, by far you don't have the last word on it if you return it. The Louisiana Supreme Court has enacted a series of statutes that I want to read to you. What happens if you return a death penalty in this case. Because the law that's set up is very exacting, detailed and complicated procedure for a review of this court, the Louisiana Supreme Court, and other courts before any death penalty can be imposed. The law states, 905.9, Review on Appeal, The Supreme Court of Louisiana shall review of every sentence of death to determine if it is excessive. The Court, by rule, shall establish such procedures as necessary to satisfy constitutional criteria for review. And, then the statute, they enact it. See, not necessarily, it's mandatory that the Supreme Court review it. There's seven judges on the Supreme Court. The highest judges in this state. For it to be upheld, four of them will have to approve it. Well, what do they review? They state that every sentence of death shall be reviewed by this court to determine if it is excessive, and in determining whether the sentence is excessive, the court shall determine. A. Whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors. If they decide it was, they can reverse it and order a life sentence to be imposed. Whether the evidence supports the jury's findings of a statutory aggravating circumstance. If they find it didn't, they can reverse it and order a life sentence. Where the sentence is disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. If they don't think the crime was heinous enough, they can reverse it and order a life sentence. If they don't think this defendant - if they think the crime was heinous enough and the statutory circumstances were proved but they don't think it ought to be applied to this defendant, they can reverse it and order a life sentence. Whenever the death penalty is imposed, a verbation [sic] transcript of the sentence hearing along with the record required on appeal shall be transferred to the Court. They review everything that went on in this trial... . And there is a total and complete investigation done on the defendant to determine whether or not they will let your decision to impose the death penalty stand. And only then does it make it through the Louisiana State Supreme Court, and the defendant has a right, if he wishes - I'm not saying that it's granted in every case. It could be denied. It could be appealed all the way through the United States Supreme Court. ... . ."But more important, what is this verdict going to mean? You see, you represent a certain segment of our society, law abiding people, raising families, working for a living, not robbing stores. You're the people that set the standards in this community. The Justices of the Supreme Court will review, and determine their decision whether or not if you decide to give him the death penalty, whether or not you were correct or not, but you see, - it use [sic] to be one." Tr. 290-292, 296 (emphasis supplied). In my view, this argument encouraged the jury to err on the side of imposing the death sentence in order to "send a message" since such an error would be corrected on appeal (while a life sentence could not). I do not believe that argument accurately described the function of appellate review in Louisiana. The Louisiana Supreme Court does not review "everything" that occurred during the trial. If it finds that one aggravating factor supported the jury's verdict, it will not consider the defendant's claim that the jury improperly relied upon other aggravating factors in reaching its verdict. See State v. James, 431 So.2d 399, 405-406 (La.), cert. denied, post, p. 908. That rule was applied by the Louisiana Supreme Court in this very case. See State v. Williams, 383 So.2d 369, 374 (La. 1980), cert. denied, . While that limitation on appellate review is constitutionally permissible in the context of Louisiana's death penalty statute, see Zant v. Stephens, , given the state-law premises of Louisiana's capital punishment scheme, see James, supra, at 406, it certainly is a more limited form of appellate review than that described by the prosecutor.In my opinion, the argument was prejudicial to the accused, both because it appears to have misstated the law and because it may have led the jury to discount its grave responsibility in determining the defendant's fate. A prosecutor should never invite a jury to err because the error may be corrected on appeal. That is especially true when the death penalty is at stake.Nevertheless, because the essence of this issue was raised in prior proceedings questioning the competency of trial counsel - who failed to object to the argument when it was made - the Court is justified in applying a strict standard of review to this second federal habeas corpus application. See Sanders v. United States, . I do not find an adequate justification for respondent's failure to raise this argument in his earlier federal habeas action. Since respondent did raise the related argument of ineffectiveness of counsel, he was no doubt aware of this argument and may have deliberately chosen not to raise it in the first habeas corpus petition. See Barefoot v. Estelle, ; Rose v. Lundy, (plurality opinion); Fay v. Noia, ; Townsend v. Sain, . Moreover, since competent counsel failed to object to the argument at the trial itself, thereby failing to avail himself of the usual procedure for challenging this type of constitutional error, I question whether it can be said that this trial was fundamentally unfair. See Rose v. Lundy, supra, at 543, and n. 8 (STEVENS, J., dissenting). Accordingly, though not without misgivings, I concur in the Court's decision to vacate the stay.JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.Before the Court is an application, filed by Ross Maggio, Warden of the Louisiana State Penitentiary, to vacate a stay of execution granted by the United States Court of Appeals for the Fifth Circuit.1 Because the condemned, Robert Wayne Williams, has raised a substantial constitutional claim relating to the proportionality review undertaken by the Supreme Court of Louisiana when it affirmed his death sentence, I would deny the application. Moreover, because the Court's approach to this case displays an unseemly and unjustified eagerness to allow the State to proceed with Williams' execution, I dissent.IAdhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, (BRENNAN, J., dissenting), I would deny the Warden's application to vacate the stay of execution granted by the Court of Appeals.IIEven if I accepted the prevailing view that the death penalty may constitutionally be imposed under certain circumstances, I would deny the application in this case because Williams has raised a substantial constitutional claim concerning the disproportionate nature of his sentence.This afternoon, the Court will hear oral argument in Pulley v. Harris, No. 82-1095, to consider whether the Constitution requires, prior to the execution of any death sentence, that a court of statewide jurisdiction determine whether a death sentence is proportional to the crime committed in light of the sentences received by similarly charged and convicted defendants in the State. Specifically, the questions presented to the Court for review are (1) whether the Constitution requires any proportionality review by a court of statewide jurisdiction prior to the execution of a state death sentence and (2) if so, whether the Constitution requires that such review assume any particular focus, scope, or procedural structure. Williams maintains that the order of the Court of Appeals staying his execution should be allowed to stand pending this Court's plenary consideration and disposition of the issues raised in Pulley. There is simply no defensible basis for disagreeing with him.His common-sense position rests on several related arguments. Initially, it is beyond dispute that the constitutional status of proportionality review is currently unclear. That is undoubtedly why the Court granted the petition for a writ of certiorari in Pulley. See . It is also why JUSTICE WHITE, just last month, stayed the execution of James David Autry pending our decision in Pulley. See Autry v. Estelle, post, p. 1301 (in chambers). See also infra, at 62. Given this uncertainty, it seems grossly inappropriate to allow an execution to take place at this time if the condemned prisoner raises a nonfrivolous argument relating to the proportionality of his sentence. And in this case, Williams has raised at least two nonfrivolous, and indeed substantial, claims concerning the proportionality of his death sentence.First, Williams contends that the Supreme Court of Louisiana has denied him due process of law by undertaking only a districtwide or parishwide proportionality review in his case. See State v. Williams, 383 So.2d 369, 374-375 (1980), cert. denied, . He properly notes that prior opinions of this Court have suggested that statewide proportionality review is required before any constitutional death sentence may be carried out. See, e. g., Gregg v. Georgia, 428 U.S., at 198, 204-206 (opinion of Stewart, POWELL, and STEVENS, JJ.) (approving death penalty in Georgia where appellate court examines whether the same sentence has been imposed "`in similar cases throughout the state'"); id., at 223 (opinion of WHITE, J.) (noting with approval that the State Supreme Court vacates the death sentence "whenever juries across the State impose it only rarely for the type of crime in question").2 Given that the necessary scope of any required proportionality review is among the questions presented in Pulley, any uncertainty concerning the continuing validity of these prior statements will presumably be answered by our decision in that case. The execution of a condemned prisoner raising a nonfrivolous claim on this particular issue prior to the release of that decision belies our boast to be a civilized society.3 Second, even if a proportionality review limited to a single judicial district might eventually be held to pass constitutional muster, Williams notes that recent decisions of the Supreme Court of Louisiana have randomly applied proportionality reviews that are statewide in scope. See, e. g., State v. Moore, 432 So.2d 209, 225-228 (1983) (limited comparison of first-degree murder cases statewide); State v. Narcisse, 426 So.2d 118, 138-139 (1983) (similar comparison between several districts rather than the customary one). The state court's failure to adopt any consistent approach in its review of capital cases, combined with its failure to offer any reasons for these different approaches, suggests that his death sentence has been imposed in a capricious and arbitrary manner. Again, at least until this Court clarifies the need for, and potential scope of, proportionality review in Pulley, I find it startling that the Court should allow this execution to take place.A simple examination of the proportionality review that was undertaken in this case demonstrates its inadequacy.4 The review was undertaken in April 1980, when Williams' case was on direct appeal before the Supreme Court of Louisiana. The court compared the circumstances of Williams' crime with the crimes of other capital defendants in the Nineteenth Judicial District for the Parish of East Baton Rouge, La., the district or parish in which Williams was tried and convicted. At that time, only 28 murder prosecutions had taken place in the district since January 1, 1976, the relevant date under state rules on which to begin the comparison. Of those 28 prosecutions, only 11 resulted in convictions for first-degree murder. And of those 11, only 3 defendants were sentenced to death. Like Williams, all three were the actual killers in a murder taking place during the perpetration of an armed robbery. And the court conclusorily noted that the crimes committed by the eight defendants receiving life imprisonment had no aggravating circumstances or some mitigating circumstances and therefore were distinguishable from Williams' case. But, as the state court also admitted, Williams had no significant prior criminal record and may have been affected by a drug-induced mental disturbance. Therefore, the proportionality review undertaken in this case, limited as it was to a few cases arising in a single judicial district, could not ensure that similarly situated defendants throughout the State of Louisiana also had received a death sentence.Louisiana has a total of 40 judicial districts in which a death sentence may be imposed. They apparently range from districts that cover primarily rural areas to a district that covers the urban center of New Orleans. Yet by allowing the Supreme Court of Louisiana to limit its proportionality review to a particular district, the Court today sanctions a practice that undoubtedly results in different sentences for similarly situated defendants, dependent solely upon the judicial district in which the defendant was tried. This is the essence of arbitrary and capricious imposition of the death penalty that the Court has consistently denounced. "A constant theme of our cases ... has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner." Barclay v. Florida, (STEVENS, J., concurring in judgment). Central to these protections is a system that includes meaningful appellate review for every death sentence. See, e. g., Zant v. Stephens, 462 U.S., at 875 and 876; Gregg v. Georgia, 428 U.S., at 195, 204-206. Given the existence of only one statewide death penalty statute approved by the Louisiana State Legislature, requiring that all courts and juries across the State apply uniform legal standards before imposing a death sentence, there can be no doubt of the substantiality of the constitutional question whether the State Supreme Court may apply different standards of appellate review depending on the judicial district involved.In sum, Williams has raised a substantial claim challenging the constitutionality of his death sentence which is encompassed within the questions presented to the Court in Pulley v. Harris. Given the severity and irrevocability of the death sentence, it is shocking that the Court does not follow its normal procedures in this case. Under these procedures, the stay of execution should be left in force pending the timely filing of a petition for certiorari, and the final disposition in Pulley.IIIThe Court offers no defensible rationale for departing from this sensible practice.5 Its action in this case is especially troubling because (1) it is based on the minimal filings associated with a stay application, (2) it effectively pre-empts one of the questions presented for review in Pulley, and (3) it apparently is an irrevocable decision that will result in Williams' execution.Less than five weeks ago, on October 5, 1983, JUSTICE WHITE stayed the execution of a condemned prisoner who, mere hours before his execution, claimed that he had been denied due process because the Texas Court of Criminal Appeals had failed to subject his death sentence to any proportionality review. See Autry v. Estelle, post, p. 1301 (in chambers). JUSTICE WHITE concluded that Autry's execution should be stayed pending disposition of Pulley because the Court's decision in Pulley will likely have a bearing on the validity of that prisoner's last-minute claim. Since then, the full Court has refused to vacate that stay. Post, p. 925. Incredibly, the sensible practice followed in Autry has been rejected in this case because the Supreme Court of Louisiana utilized a limited proportionality review whereas in Autry the state court did not apply any such review. For present purposes, however, this is a distinction which should make no difference. Given the questions presented in Pulley, see supra, at 57, it is impossible to be certain that the proportionality review accorded Williams satisfies the constitutional requirements that the Pulley decision is intended to clarify.It is no answer that the Court has consistently denied challenges to Louisiana's districtwide proportionality review, including Williams' own challenge to that review in his petition for certiorari on his first federal habeas. Williams v. Maggio, . For each of these denials, as is true of all denials of certiorari, is not a decision on the merits of the issues raised in the respective petitions. More important, in none of those cases did the Court's denial of certiorari involve an imminent date of execution. In this case, by contrast, the Court's action will allow the execution of Williams to proceed to its fatal conclusion even though uncertainty overhangs the constitutional legitimacy of the process by which his death sentence was affirmed.6 Nor may the Court take comfort in the fact that, in the course of denying Williams' request for habeas relief, the Federal District Court conducted an abbreviated statewide proportionality review based on the published opinions of the Supreme Court of Louisiana. Although the District Court concluded that Williams' sentence was not disproportionate, that finding is largely irrelevant to the issue raised by Williams. The District Court's judgment regarding the proportionality of the death sentence is insufficient because it cannot substitute for the State Supreme Court, which is presumably more familiar than the federal court with the important nuances of the State's death penalty jurisprudence. Moreover, because Williams' requested remedy on habeas was a remand to the state court for a statewide proportionality review, the District Court did not have the benefit of any arguments from counsel for Williams on how that statewide review should be conducted. That the District Court conducted a hasty proportionality review based solely on published opinions from the State Supreme Court should not be deemed constitutionally sufficient.Finally, the Court gives insufficient weight to the potential prejudicial effect of the limited, districtwide review conducted in Williams' case. In fact, Williams' habeas petition has identified at least two specific ways in which he has been prejudiced by a districtwide, rather than a statewide, proportionality review. First, he claims that there has never been a statewide pattern of death sentences for persons committing murder during armed robbery, especially when there was a close question whether the murder was committed with specific intent or was simply accidental. Second, Williams claims that his case presented mitigating circumstances comparable to various cases in other parts of the State which resulted in sentences of life imprisonment. These are exactly the types of disparities which a proportionality review of proper scope would discover.The Court, therefore, plainly offers no reason for treating this case differently from any other stay application raising questions which are encompassed within a substantially similar case then pending on the Court's plenary docket. Rather, "an appeal that raises a substantial constitutional question is to be singled out for summary treatment solely because the State has announced its intention to execute ... before the ordinary appellate procedure has run its course." Barefoot v. Estelle, (MARSHALL, J., dissenting) (emphasis in original).7 IVBy vacating the stay granted by the Court of Appeals and allowing the execution of Williams to proceed, the Court is implicitly choosing to adopt one of two wholly unacceptable alternatives. Either the Court, prior to its full consideration of Pulley, is pre-empting any conclusion that the Constitution mandates statewide proportionality review, or the Court is announcing that someone may be executed using appellate procedures that might imminently be declared unconstitutional. Only after full consideration and disposition of Pulley will the Court be in a position to determine with reasonable assurance the validity of the claims raised by Williams. I am appalled that the Court should be unwilling to let stand a stay of execution pending the clarification of this issue.I dissent. |
0 | Per Curiam. The Supreme Court of Ohio here held that a witness who denies all culpability does not have a valid Fifth Amendment privilege against self-incrimination. Because our precedents dictate that the privilege protects the innocent as well as the guilty, and that the facts here are sufficient to sustain a claim of privilege, we grant the petition for certiorari and reverse. Respondent was charged with involuntary manslaughter in connection with the death of his 2-month-old son Alex. The coroner testified at trial that Alex died from "shaken baby syndrome," the result of child abuse. He estimated that Alex's injury most likely occurred minutes before the child stopped breathing. Alex died two days later when he was removed from life support. Evidence produced at trial revealed that Alex had a broken rib and a broken leg at the time of his death. His twin brother Derek, who was also examined, had several broken ribs. Respondent had been alone with Alex for half an hour immediately before Alex stopped breathing. Respondent's experts testified that Alex could have been injured several hours before his respiratory arrest. Alex was in the care of the family's babysitter, Susan Batt, at that time. Batt had cared for the children during the day for about two weeks prior to Alex's death. The defense theory was that Batt, not respondent, was the culpable party. Batt informed the court in advance of testifying that she intended to assert her Fifth Amendment privilege. At the State's request, the trial court granted her transactional immunity from prosecution pursuant to Ohio Rev. Code Ann. §2945.44 (1999). She then testified to the jury that she had refused to testify without a grant of immunity on the advice of counsel, although she had done nothing wrong. Batt denied any involvement in Alex's death. She testified that she had never shaken Alex or his brother at any time, specifically on the day Alex suffered respiratory arrest. She said she was unaware of and had nothing to do with the other injuries to both children. The jury found respondent guilty of involuntary manslaughter, and he appealed. The Court of Appeals of Ohio, Sixth District, reversed respondent's conviction on grounds not relevant to our decision here. The Supreme Court of Ohio affirmed the reversal, on the alternative ground that Batt had no valid Fifth Amendment privilege and that the trial court's grant of immunity under §2945.44 was therefore unlawful.*1 89 Ohio St. 3d 342, 358, 731 N. E. 2d 662, 677 (2000). The court found that the wrongful grant of immunity prejudiced respondent, because it effectively told the jury that Batt did not cause Alex's injuries. The court recognized that the privilege against self-incrimination applies where a witness' answers "could reasonably 'furnish a link in the chain of evidence' " against him, id., at 352, 731 N. E. 2d, at 673, quoting Hoffman v. United States, 341 U. S. 479, 486 (1951). Hoffman, it noted, requires the trial court to determine whether the witness has correctly asserted the privilege, and to order the witness to answer questions if the witness is mistaken about the danger of incrimination. Ibid. The court faulted the trial judge for failing to question sufficiently Batt's assertion of the privilege. It noted that the Court of Appeals, in finding a valid privilege, failed to consider the prosecutor's suggestion that Batt's testimony would not incriminate her, and Batt's denial of involvement in Alex's abuse when questioned by the Children's Services Board. The court held that "Susan Batt's [trial] testimony did not incriminate her, because she denied any involvement in the abuse. Thus, she did not have a valid Fifth Amendment privilege." 89 Ohio St. 3d, at 355, 731 N. E. 2d, at 675 (emphasis in original). The court emphasized that the defense's theory of Batt's guilt was not grounds for a grant of immunity, "when the witness continues to deny any self-incriminating conduct." Ibid. The Supreme Court of Ohio's decision that Batt was wrongly granted immunity under §2945.44 (and consequently, that reversal of respondent's conviction was required) rested on the court's determination that Batt did not have a valid Fifth Amendment privilege. In discussing the contours of that privilege, the court relied on our precedents. We have observed that "this Court retains a role when a state court's interpretation of state law has been influenced by an accompanying interpretation of federal law." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984). The decision at issue "fairly appears ... to be interwoven with federal law," and no adequate and independent state ground is clear from the face of the opinion. Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983). We have jurisdiction over a state-court judgment that rests, as a threshold matter, on a determination of federal law. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 816 (1986) ("[T]his Court retains power to review the decision of a federal issue in a state cause of action."); St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 293-294 (1908). The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U. S. Const., Amdt. 5. As the Supreme Court of Ohio acknowledged, this privilege extends not only "to answers that would in themselves support a conviction ... but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant." Hoffman, 341 U. S., at 486. "[I]t need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Id., at 486-487. We have held that the privilege's protection extends only to witnesses who have "reasonable cause to apprehend danger from a direct answer." Id., at 486. That inquiry is for the court; the witness' assertion does not by itself establish the risk of incrimination. Ibid. A danger of "imaginary and unsubstantial character" will not suffice. Mason v. United States, 244 U. S. 362, 366 (1917). But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.' " Grunewald v. United States, 353 U. S. 391, 421 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U. S. 551, 557-558 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. 353 U. S., at 421-422. The Supreme Court of Ohio's determination that Batt did not have a valid Fifth Amendment privilege because she denied any involvement in the abuse of the children clearly conflicts with Hoffman and Grunewald. Batt had "reasonable cause" to apprehend danger from her answers if questioned at respondent's trial. Hoffman, supra, at 486. Batt spent extended periods of time alone with Alex and his brother in the weeks immediately preceding discovery of their injuries. She was with Alex within the potential timeframe of the fatal trauma. The defense's theory of the case was that Batt, not respondent, was responsible for Alex's death and his brother's uncharged injuries. In this setting, it was reasonable for Batt to fear that answers to possible questions might tend to incriminate her. Batt therefore had a valid Fifth Amendment privilege against self-incrimination. We do not, of course, address the question whether immunity from suit under §2945.44 was appropriate. Because the Supreme Court of Ohio mistakenly held that the witness' assertion of innocence deprived her of her Fifth Amendment privilege against self-incrimination, the petition for a writ of certiorari is granted, the court's judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.FOOTNOTESFootnote 1* Ohio Rev. Code Ann. §2945.44 (1999) states in pertinent part: "In any criminal proceeding ... if a witness refuses to answer or produce information on the basis of his privilege against self-incrimination, the court of common pleas ... unless it finds that to do so would not further the administration of justice, shall compel the witness to answer or produce the information, if ... [the prosecuting attorney so requests and] ... [t]he court ... informs the witness that by answering, or producing the information he will receive [transactional] immunity ... ." (Emphasis added.) |
7 | [Footnote *] Together with No. 680, Delaware & Hudson Railroad Corp. v. United States et al., No. 691, Erie-Lackawanna Railroad Co. v. United States et al., No. 813, City of Scranton et al. v. United States et al., No. 814, Shapp v. United States et al., and No. 815, Chicago & Eastern Illinois Railroad Co. v. United States et al., also on appeal from the same court. By order of April 6, 1966, the ICC permitted the merger of the Pennsylvania and the New York Central railroads, the largest and third largest railroads in the Northeast, pursuant to 5 (2) of the Interstate Commerce Act. The ICC found that the merger might divert substantial traffic from the Erie-Lackawanna, Delaware and Hudson, and Boston and Maine railroads, three smaller carriers designated as "protected railroads." These protected lines had filed applications for inclusion not only in the Penn-Central merger, but also in the Norfolk & Western-Nickel Plate merger, which the ICC had previously approved. In the latter case the ICC retained jurisdiction to consider inclusion of the three lines upon equitable terms if "found consistent with the public interest" and it provided that consummation of the merger would constitute "irrevocable assent" by Norfolk & Western to such inclusion. The applications for inclusion in the Penn-Central system have been held in abeyance pending decision on inclusion in Norfolk & Western-Nickel Plate, presently under consideration by the ICC. On the merits of the Penn-Central merger, the ICC found that the protected railroads rendered essential service which required preservation, and concluded that immediate consummation of the merger would be consistent with the public interest if "conditions are imposed to obviate impairment or serious weakening" of the three lines. Without such conditions or the inclusion of the protected roads in one of the major rail systems, the ICC found that it was doubtful if the "three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger." The ICC, sua sponte, specified in Appendix G certain conditions to the immediate consummation of the merger "to prevent any loss of revenue over the three [protected] railroads." These conditions concerned traffic practices and indemnification for loss of income. On September 16, 1966, the ICC modified its order, apparently on the objection of most of the parties, and, though retaining the traffic practices condition, it lifted the revenue indemnification condition until further order. Erie-Lackawanna and other railroads filed suit seeking an interlocutory injunction restraining the consummation of the merger. A three-judge court declined to grant the injunction. Held: In the light of its findings as to the necessity for interim protection for the three "protected railroads," the ICC erred in withdrawing all of the protective conditions of Appendix G save the traffic ones and permitting immediate consummation of the Penn-Central merger without determining the ultimate fate of the three protected roads. Pp. 378-392. 259 F. Supp. 964, reversed and remanded.Howard J. Trienens, Lloyd N. Cutler, Edward W. Bourne, Harry G. Silleck, Jr., Leon H. Keyserling and Gordon P. MacDougall argued the cause for appellants in all cases. With Messrs. Trienens and Cutler on the brief for appellant Baltimore & Ohio Railroad Co. in No. 642 were George L. Saunders, Jr., and Edward K. Wheeler. With Mr. Cutler on the brief for appellant Central Railroad Co. of New Jersey in No. 642 was Richard B. Wachenfeld. With Mr. Bourne on the brief for appellant Erie-Lackawanna Railroad Co. in No. 691 were J. Kenneth Campbell and John T. Rafferty. Mr. Silleck also filed briefs for appellant in No. 680, and Messrs. MacDougall and Keyserling for appellants in Nos. 813 and 814. Frank F. Vesper, Patrick C. Mullen and James H. Durkin were on the briefs for appellant in No. 815.Solicitor General Marshall argued the cause for the United States in all cases. With him on the brief were Assistant Attorney General Turner, Louis F. Claiborne and Richard A. Posner. Robert W. Ginnane argued the cause for appellee Interstate Commerce Commission in all cases. With him on the brief were Fritz R. Kahn, Arthur J. Cerra and Jerome Nelson. Hugh B. Cox, Joseph Auerbach, Walter J. Myskowski, Samuel Kanell, Special Assistant Attorney General of Connecticut, David Berman, Assistant Attorney General of Massachusetts, and John H. Chafee, Governor of Rhode Island, argued the cause for the remaining appellees. With Mr. Cox on the brief for appellee Pennsylvania Railroad Co. was Henry P. Sailer. Mr. Auerbach also filed a brief for appellees Smith et al., trustees of New York, New Haven & Hartford Railroad Co. With Mr. Myskowski on the brief for appellee State of New York were Louis J. Lefkowitz, Attorney General, and Dunton F. Tynan, Assistant Solicitor General. With Governor Chafee and Messrs. Kanell and Berman on the brief for the State of Connecticut et al. were Harold M. Mulvey, Attorney General, F. Michael Ahern, David B. Beizer and Robert L. Hirtle, Assistant Attorneys General, and William J. Lynch for the State of Connecticut; Edward W. Brooke, Attorney General, and Joseph L. Tauro, Special Assistant Attorney General, for the Commonwealth of Massachusetts; and J. Joseph Nugent, Attorney General, and Robert M. Schacht, Assistant Attorney General, for the State of Rhode Island. Donald L. Wallace was on the brief for appellees Greater Philadelphia Chamber of Commerce et al. Levy Anderson was on the brief for appellee City of Philadelphia.Edward Friedman, Attorney General, and Edward Munce and Robert M. Harris, Assistant Attorneys General, filed a brief for the Commonwealth of Pennsylvania, as amicus curiae, urging affirmance in Nos. 642, 680 and 691.MR. JUSTICE CLARK delivered the opinion of the Court.These six appeals involve the validity of an order of the Interstate Commerce Commission permitting the merger of the Pennsylvania Railroad Company and the New York Central Railroad Company (Penn-Central) pursuant to 5 (2) of the Interstate Commerce Act, as amended, 41 Stat. 481, 49 U.S.C. 5 (2). In its original order of April 6, 1966, the Commission found that the merger might divert a substantial amount of traffic from the Erie-Lackawanna Railroad Company (E-L), the Delaware and Hudson Railroad Company (D & H) and the Boston and Maine Corporation (B & M), three smaller competing carriers designated as the "protected railroads" by the Commission. These protected railroads had filed under 5 (2) (d) of the Act applications for inclusion in both this merger and in Norfolk & W. Ry. Co. and New York, C. & St. L. R. Co. - Merger, 324 I. C. C. 1. In the latter case inclusion of E-L and D & H has been recommended and, together with B & M, is pending before the Commission. The applications of the protected roads in the Penn-Central proceeding have been held in abeyance pending decision in the Norfolk proceeding.On the merits of the Penn-Central merger, the Commission found that the service the protected railroads "render their shippers is essential and the public interest dictates that [such service] be preserved." The Commission concluded "that immediate consummation of the proposed merger would be consistent with the public interest, if conditions are imposed to obviate impairment or serious weakening" of the three lines. Without such conditions or the inclusion of the protected roads in a major system, the Commission further found, it would be doubtful if the "three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger." 327 I. C. C. 475, 532. It, therefore, applied, sua sponte, certain conditions to the immediate consummation of the merger which were "designed to prevent any loss of revenue over the three railroads [the protected railroads] as a direct result of immediate consummation of this merger." Its "approval of the merger for undelayed consummation" was made "subject ... to the conditions specifically described in appendix G," ibid., which was attached as an appendix to the April 6, 1966, order, and which we likewise attach as an Appendix here. The Commission, apparently because of the necessity for the conditions and the urgency of the merger, required compliance with Appendix G even though it had neither the benefit of a report from a Hearing Examiner thereon, nor the advantage of a hearing before the Commission itself. These conditions detailed the protection which must be given the protected railroads and made them a prerequisite to the consummation of the merger.The Commission, therefore, not only found that protection of the three railroads was necessary, but fixed the terms thereof and required compliance prior to permitting the merger. There was nothing tentative about Appendix G. The conditions were divided into two general categories and provided that: (1) On traffic for which the protected railroads are "competitive factors"1 the merged company shall not, pending final determination of the inclusion proceedings, provide any new or changed routing practice, freight rates, or service which would divert or tend to divert traffic from routes in which the protected railroads, or any of them, participate or participated at the time of the merger. And (2) the protected railroads would be indemnified by the merged company against revenue losses by reason of the merger. Appendix G to the order detailed the manner in which such indemnity would be calculated and provided for the accelerated processing of complaints as to new or changed routes, practices, rates, or services. Section 7 of Appendix G provided that if the merged company did not accede to all of the conditions, the merger would be deferred for two years or "such time as the Commission may determine to be necessary to protect the interests of D & H, B & M and E-L." And 8 provided that the conditions "shall be construed, administered and enforced with the view to protecting the E-L, D & H and B & M and the shipping public which depends upon them for transportation, against the effects of the merger for the period and purposes set forth above."Thereafter, and without a hearing, but apparently on the objection of most of the parties, the Commission on September 16, 1966, modified its April 6 order and reopened the hearing. 328 I. C. C. 304. The objectors, among other things, pointed to the fact that the conditions of Appendix G were made without any notice or hearing and would create irreconcilable conflicts between the protected carriers and others adversely affected by the merger. In reopening the hearing the Commission limited it to the conditions imposed in Appendix G, the prevention of possible manipulation of such conditions and the enlargement of the indemnity provision to include capital loss. In the reopening order of September 16, 1966, the Commission left intact its order of April 6, 1966, as to the undelayed consummation of the merger, continued in effect the ban on new or changed routes, practices, and rates as to traffic in which any of the protected railroads participated, but lifted the indemnification condition until further order, at which time any such provision found necessary could be made retroactive to the date of the merger. None of the previous findings, as to the necessity for the immediate imposition of the conditions included in the original order, were amended or withdrawn. The traffic conditions alone were left in effect.This suit was filed on September 7, 1966, and arose upon the complaint of E-L and other railroads seeking an interlocutory injunction to restrain the consummation of the merger. A three-judge court was convened, 28 U.S.C. 2284, and thereafter it declined, by a divided vote, to grant the interlocutory injunction. Erie-Lackawanna Railroad Co. v. United States, 259 F. Supp. 964. The appellants sought a stay from MR. JUSTICE HARLAN who referred the application to the Court and it was granted on October 18, 1966. At the same time we expedited the case for consideration. . The sole question before us is whether, in light of the findings as to the necessity for interim protection for the so-called protected railroads, the Commission erred in permitting the consummation of the merger prior to and without awaiting determination of the inclusion proceedings. We believe that the Commission erred in approving the immediate consummation of the merger without determining the ultimate fate of the protected roads. We, therefore, reverse the judgment and remand the case to the District Court with instructions to remand the matter to the Commission for further proceedings in accordance with this opinion. I. Questions not here decided.At the outset we make it clear that we do not pass on the validity of the merger, the special conditions of Appendix G, the modified order of the Commission, or the peripheral points posed by the various parties. We hold only that under the uncontradicted findings of the Commission it was necessary for it to conclude the inclusion proceedings, as to the protected railroads, prior to permitting consummation of the merger. II. The merger, its background, its participants and relative position.The Penn-Central merger has been under study and discussion by the Commission for some 10 years. After the initial study was completed in 1959, Central withdrew from the plan and began negotiations for a merger with the Chesapeake and Ohio Railway Company (C & O) for joint control of the Baltimore and Ohio Railroad Company (B & O). However, when at a later date C & O had contracted for the purchase of some 61% of B & O stock, Central gave up its plan and renewed negotiations with Penn. The two roads signed an agreement of merger in 1962. The New York, New Haven and Hartford Railroad Company (NH) approached Penn and Central for inclusion in the plan but was given a deaf ear. The merger agreement provided that all properties, franchises, etc. (permitted by respective state law), would be transferred to the merged company and appropriate stock exchange, debt arrangements, etc., effected.As the Commission found, the merger would "create an hour-glass shaped system flared on the east from Montreal, Canada, through Boston, Mass., to Norfolk, Va., and on the west from Mackinaw City, Mich., through Chicago, Ill., to St. Louis, Mo." 327 I. C. C., at 489. It would operate some 19,600 miles of road in 14 States between the Great Lakes, with a splash in Canada on the north, and the Ohio and Potomac Rivers on the south. After the two systems are connected as planned and new and expanded yards are provided, the merger will consolidate trains now moving separately between the same points. The combined systems will have a substantial amount of parallel trackage and routes, with 160 common points or junctions. Terminals will be consolidated, present interchanges between the two systems will be eliminated and only the most efficient yards and facilities of the respective systems will be utilized. The merger plan calls for 98 projects that will intermesh their long-haul traffic at key points, creating a nonstop service between the principal cities with "locals" covering the multiple-stop routes and branch lines. It is estimated that enormous savings in transit time can be effected. Certain chosen yards - such as Selkirk - will be remodeled and modernized into electronically operated yards with capacities of from 5,000 to 10,000 cars per day. The through trains to the West will be formed at Selkirk and those from the West broken up for dispatch to terminals or consignees in New England, New York, and northern New Jersey. The plan calls for some New York City traffic to be routed over Central's Hudson River East Shore line to lessen cost. By consolidating traffic on fast through lines, filling out trains, re-routing over the most efficient routes, eliminating some interchanges and effecting other improvements, the merged company will reduce by 6,000,000 the number of train miles operated. A single-line service will be operated between more points, with less circuity and less switching. The plan also calls for 31 daily trains to be withdrawn from the Pennsylvania with seven new ones added, leaving a total of 319 trains daily.The Pennsylvania is the largest and Central the third largest railroad in the Northeastern Region. Together the operating revenue of the two roads was over $1,500,000,000 in 1965. Their net income in 1964 totaled almost $57,000,000 and in 1965 ran in excess of $75,000,000. In 1963 the total net was barely $16,000,000. The cost of operation of the two systems runs $90,000,000 a month and their working capital was some $72,000,000 in 1965. As of December 31, 1963, their combined investments were $1,242,000,000. The Pennsylvania and Central systems are each made up of underlying corporations. As of the date of the Examiner's Report the merged company would have ownership interest in 182 corporations and 10 railroads under lease. Thirty-six of the corporations are rail carriers, in six of which the merged company would have a voting control. All six are Class I railroads. It would likewise control six Class II railroads, five switching and terminal railroads, a holding company, five car-leasing companies, four common carriers and 34 noncarrier corporations.The NH2 is the sixth largest railroad in the North-eastern Region and the largest in New England. On a national basis it ranks fourth among passenger-carrying railroads and is one of the largest nontrunkline freight roads. It has some 1,500 miles of railroad in four States - Massachusetts, Rhode Island, Connecticut, and part of New York. NH has been in reorganization under 77 of the Bankruptcy Act, 47 Stat. 1474, as amended, 11 U.S.C. 205, since 1961.3 While its gross revenues have run in excess of $120,000,000, it has run deficits since 1958. During the trusteeship its deficits have run from $12,700,000 in 1962 to $15,100,000 in 1965. III. The protesting parties, their setting in the Northeastern Region and their position on the merger.Altogether some 200 parties participated in the proceedings before the Commission, some in support of and others in opposition to the merger. None of the appellant railroads challenge the merits of the merger; however, appellants Milton J. Shapp and the City of Scranton both attack the merger on its merits. Aside from Penn-Central and NH, there are 10 other carriers involved in this proceeding.Three of these are the protected carriers - B & M, D & H and E-L. B & M operates a freight and passenger service in Maine, New Hampshire, Vermont, Massachusetts and New York over some 1,500 miles of road. It has suffered consecutive deficits in net income for some years and has not appealed from the decision of the District Court. D & H operates about 750 miles of road with some 600 in New York, less than 50 in Vermont and the balance in Pennsylvania. Its net income in 1965 was $5,000,000, its highest year since 1960. E-L operates some 3,000 miles of railroad located in New Jersey, New York, Pennsylvania, Ohio, Indiana and Illinois. Its net income was over $3,000,000 in 1965 but it suffered heavy deficits in the seven preceding years. As we have previously noted, these three railroads have filed applications for inclusion in both this case and in Norfolk & W. Ry. Co. and New York, C. & St. L. R. Co. - Merger, 324 I. C. C. 1.4 The Commission has withheld action on the inclusion of E-L, B & M and D & H, in Penn-Central until there is a final determination of their inclusion proceeding with Norfolk and Western (N & W). In the latter proceeding Commissioner Webb filed his report on December 22, 1966, recommending the inclusion of E-L and D & H in the N & W system but was unable to prescribe terms for inclusion of B & M - this was left to private negotiation between the railroads. On argument here the Commission has indicated that it anticipated entering a final order in the matter by July or August 1967. If this is favorable these three roads would be included in the N & W system, which has indicated its acquiescence in such a plan.Six additional railroads involved here are the C & O, B & O, the Central of New Jersey (CNJ), the Reading Company, the Norfolk and Western, and the Western Maryland Company (WM). The C & O-B & O system is the result of a control proceeding in 1962. See Chesapeake & O. Ry. Co. - Control - Baltimore & O. R. Co., 317 I. C. C. 261, sustained, sub nom. Brotherhood of Maintenance of Way Employees v. United States, 221 F. Supp. 19, aff'd, per curiam, . Together these two roads operate some 10,000 miles of railroad. Their lines extend from Michigan through Ohio and West Virginia to Virginia and from Chicago, Ill., and St. Louis, Mo., to Rochester, N. Y., and Washington, D.C. Their net operating income in 1965 totaled over $80,000,000. In addition, B & O owns 38% voting control of Reading which in turn controls CNJ. Reading has 1,200 miles of railroad in eastern Pennsylvania with net operating revenue of some $8,000,000 in 1965. CNJ has 514 miles of railroad extending from Scranton, Pa., to Jersey City, N. J. In 1965 it had a net operating deficit in excess of $3,000,000. C & O-B & O also own jointly 65% of the voting stock of WM. The latter has 741 miles of railroad extending from Connellsville, Pa., and Webster Springs, W. Va., to Baltimore, Md. In 1965 its net operating income was nearly $8,500,000.N & W has 7,000 miles of railroad extending in a double prong from Des Moines, Iowa, and Kansas City, Mo., on the west to Buffalo, N. Y., and Pittsburgh, Pa., on the east and from Cincinnati, Ohio, and Bristol, Va., on the west to Hagerstown, Md., and Norfolk, Va., on the east. Its net operating income for 1965 was approximately $118,000,000. As we have noted, an inclusion proceeding is now pending under which B & M, D & H and E-L seek inclusion in the N & W system.On October 11, 1965, C & O-B & O and N & W filed an application with the Commission asking approval of their merger into a single system and offering to include B & M, D & H, E-L, the Reading and CNJ therein, subject to various conditions. If this were effected and the Penn-Central-NH merger were effected, the North-eastern Region would then have two giant systems, i. e., Penn-Central and C & O-B & O-N & W.Only one additional railroad remains a party here, the Chicago and Eastern Illinois Railroad Company (C & E I). It has approximately 750 miles of railroad operating between Chicago, Ill., St. Louis, Mo., and Evansville, Ind., with a net operating income of nearly $3,500,000 in 1965. The Missouri Pacific Railroad Company has already been authorized by the Commission to make C & E I a part of its system. The fear of C & E I here was that the Penn and Central merged would be a more formidable competitor than the Central alone and it, accordingly, sought the imposition here of special routing and traffic conditions.The only other appellants are the City of Scranton, Pa., and Milton J. Shapp. Scranton is served by E-L, D & H and CNJ. It fears that the merger will have adverse effects upon the city and therefore opposes the merger. Shapp sues as a citizen and stockholder of Penn and is likewise in opposition to the merger.The United States has filed a memorandum in which it does not "quarrel with the merits of the Penn-Central merger proposal itself." The agencies of the Executive Branch, the Solicitor General reports, "believe that the merger is in the public interest and that its consummation should be promptly effected." This view, however, is based on the assumption "that a place in the emerging pattern of consolidation in the Northeast can be found for the lesser roads of the region." It is the Commission's approval of the immediate consummation of the merger prior to the completion of the proceedings to determine the place of the lesser roads to which the United States objects. It contends that since the very survival of the three protected railroads is threatened by the Penn-Central merger, the Commission must first provide protection for them until their absorption by "a major system like Norfolk and Western." To this end the United States suggests that we hold the case to enable the Commission to conclude the related proceedings which it now has under consideration. The United States concludes that: "Only if the Commission is unable to promptly resolve the problems resulting from the merger would we deem it appropriate to urge this Court to reach the merits of the appeals and reverse the judgment below."The appellant railroads take varying positions all short of attacking the merits of the merger. The three protected railroads contend that the merger should not be consummated prior to the final determination of their inclusion in some major system or the enforcement of effective protective conditions in the interim. Judicial review, they say, of the protective conditions would otherwise be illusory. The C & O-B & O group and the N & W system maintain that the conditions of the April 6, 1966, order give the protected railroads a vested interest in the Penn-Central merger which would result in the protected railroads diverting traffic to Penn-Central which would normally have gone to them. They say, as does the United States, that the conditions were drawn without the benefit of notice and hearing, are deficient and enforcement thereof would be to their detriment. C & E I points to what it calls inconsistent findings as to the benefits it will have "of intensified competitive efforts" by its connecting carriers on routes in competition with Penn-Central. It contends that the indemnity conditions would "compound the economic injury" which would befall the C & E I as a result of the merger and which prompted it to request protective measures. IV. The national transportation policy and practices of the Commission thereunder.This Court has often pointed out that the national transportation policy "is the product of a long history of trial and error by Congress ... ." McLean Trucking Co. v. United States, . In that case it found that the Transportation Act of 1920 "marked a sharp change in the policies and objectives embodied in those efforts." Ibid. In that Act the Congress directed the Commission to adopt a plan for consolidation of the railroads of the United States into "a limited number of systems." 41 Stat. 481 (1920). Consolidation would be approved by the Commission upon a finding that the transaction was in harmony with and in furtherance of the complete plan of consolidation and that the public interest would be promoted. But the Commission was warned that "competition shall be preserved as fully as possible." Ibid. The initiation of this unification, however, the Congress left wholly with the carriers. The Commission was given no power to compel mergers. This pattern was carried forward in the Transportation Act of 1940, 54 Stat. 898; however, 5 of the former Act was amended to authorize the Commission to approve carrier-initiated proposals which it found to be consistent with the public interest and upon just and reasonable conditions. Under 5 (2) (d) additional power was given the Commission to condition its approval of a merger upon the inclusion, upon request, of other railroads operating in the territory involved. As we said in County of Marin v. United States 412 (1958), "the result of the 1940. Act was a change in the means, while the end remained the same. The very language of the amended `unification section' expresses clearly the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification." Id., at 417-418. The Commission has, therefore, not proceeded by or under "a master plan" for consolidation in the various regions. Following this procedure the Commission has refused to consolidate the Northeastern Region railroad merger or control proceedings into one case. See Chesapeake & O. Ry. Co. - Control - Baltimore & O. R. Co., supra, at 265-266, and Norfolk & W. Ry. Co. and New York, C. & St. L. R. Co. - Merger, supra, at 18. Also Brotherhood of Maintenance of Way Employees v. United States, 221 F. Supp. 19, at 29-31; aff'd per curiam, .It is contended that the order here is fatally defective for failure to comply with 5 (2) (b) of the Act which requires the Commission to "enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable." The claim is that by leaving the indemnity provisions open for future determination the Commission did not meet the requirements of the section. Once a valid order is entered by the Commission, it, of course, has the power to retain jurisdiction for the purpose of making modifications that it finds necessary in the light of subsequent circumstances or to assist in compliance with prior conditions previously required or, of course, to correct any errors. The Commission also has power under 5 (9) of the Act to make certain supplemental orders and under 17 (3) may correct clerical errors in certificates. We do not find it necessary to pass upon the question of naked power in the Commission to do what has been done here. Even assuming that it does have that power, we find that its order approving immediate consummation of the merger is insupportable on its findings. V. Conclusions.The Commission found in its April 6, 1966, order that the protected railroads would be adversely affected to a "serious degree" by the Penn-Central merger; that they would be "severely handicapped" in providing required transportation to the highly industrialized areas that they serve, which service is "essential" and "the public service dictates that it be preserved." It then held that immediate consummation of the merger would be consistent with the public interest only if the conditions of Appendix G were immediately imposed. And, significantly, it concluded that even though it approved the merger, consummation of it would not be permitted unless the protected railroads "are protected during the period necessary to determine their future ... ." 327 I. C. C., at 529, 532. But after this suit was brought and strong opposition to Appendix G was voiced, the Commission, on September 16, 1966, withdrew all of the conditions of Appendix G save the traffic ones. This left the protected railroads without sufficient protection according to the Commission's own findings. This was done apparently because of the vehement objections of the appellant railroads that Appendix G would cause havoc rather than give shelter. We cannot say, as did the District Court, that the September 16, 1966, order meant nothing more than that the traffic conditions left imposed by it were in themselves sufficient to protect the three protected railroads during the interim between the merger and the decision as to their future in one of the major railroad systems. This interpretation runs in the face of not only the prior findings enumerated above but the specific terms and conditions of Appendix G found to be necessary to prevent "impairment or serious weakening" of the three carriers. Id., at 532. Indeed, rather than being tentative, the requirements of Appendix G were rigidly fixed and established for the entire period preceding inclusion of the protected roads in some major system. The finding of consistency with the public interest was predicated entirely upon the unqualified acceptance of Appendix G by Penn-Central. Otherwise the merger would be put off for two years. In its effort to expedite the merger the Commission failed to provide the very protection that it at the same time declared indispensable to the three roads. This leaves the ultimate conclusion - that prompt consummation of the Penn-Central merger clearly would be in the public interest - without support and it falls under the Commission's own findings.In view of these facts and since none of the findings of the Commission were disturbed, attacked, or amended, we believe it was error to permit the merger to be effected. And we also note that even in the ultimate order of approval dated September 16, 1966, the Commission pointed out that its "finding [as to the merger being consistent with the public interest] was that, if the immediate consummation were to be authorized E-L, D & H and B & M would require special protection during the pendency of their petitions for inclusion in a major system." Nevertheless, in spite of this confirmation of its finding, the Commission ordered the merger immediately consummated without the "special protection" afforded by Appendix G. Having found that the finding of consistency with the public interest could only be sustained by the imposition of the Appendix G "special protection," the Commission failed to meet its statutory obligation when it arbitrarily removed the special conditions of Appendix G while leaving the prior finding standing. In view of the patent invalidity of the order permitting immediate consummation of the merger and in light of the present status of the proceeding before the Commission, we can only conclude that it is necessary that the decision as to the future of the protected railroads and their inclusion in a major system be decided prior to consummation of the Penn-Central merger. This is especially true since the findings and recommendations of Commissioner Webb, as to the inclusion of the three protected railroads, are now under submission to the full Commission and a decision should be reached thereon by July or August 1967, we are advised by counsel. This short time would have little effect upon the ultimate consummation of the merger - which has been in the making for some 10 years now - and if it resulted in the future of the protected railroads being finally decided, serious losses to them would be obviated. Furthermore, there would be no occasion for the conditions of Appendix G to be imposed and hearing and decision on this highly controversial matter would not be necessary insofar as the three protected railroads are concerned. Finally, such action would provide the solution to the problem of the necessary and indispensable protection to the three railroads that the Commission found prerequisite to the merger.Furthermore, the serious charge that the conditions of Appendix G were imposed without notice and hearing would in a large part be dissipated by this course of action. As to the three protected roads it would be entirely obviated if and when their fate is determined. As to the other railroads affected, the Commission could more quickly conclude its present hearing and make a decision as to the effect of the merger upon them and the protection, if any, required.5 This disposition is also buttressed by the fact that should the immediate consummation of the merger be permitted and at a later date neither the interim conditions nor the inclusion proceedings be disposed of favorably to the continued existence of the merger, the only remedy remaining would be to set it aside and unscramble the consolidation. It is said that this does not follow since only the indemnity terms are at issue and they involve only money. This is blinking at reality. The fact is that traffic, trackage, terminals, etc., as well as financial and corporate structures can and will, beyond doubt, be quickly combined, changed, abandoned, or consolidated. The only condition now imposed for the maintenance of the status quo is the provision against any change of routes, traffic, rates, etc., as to business in which the three protected roads participate. They are comparatively small lines located for the most part in north-eastern coastal States and would, percentagewise, be a small part of the total routes, traffic, rates, etc., of the whole Penn-Central system. There would be no restriction as to other routes, traffic, rates, etc., as well as all other operations of the merged company, including terminals, warehouses, etc., financial and corporate structures. The plan that the Penn-Central proposes to follow, as we have briefly sketched it, indicates not only major changes but quick action. Our experience with other mergers, and common sense as well, indicate that the "scrambling" goes fast but the unscrambling is interminable and seldom effectively accomplished.The Penn-Central merger has been studied for a decade. Indeed, the parties to the merger agreed to it over five years ago and it has been under Commission consideration ever since that time. This is, of course, the more reason for expedition. We note and give weight to the estimates of the Commission that the inclusion proceedings of the three roads in the N & W should be concluded in "a relatively short time." Our remand should, therefore, entail only a very short delay before the Commission. If its order is attacked in court the hearing there can be expedited, as was this one, and an early determination made. We do not believe that this is too high a price to pay to make as certain as human ingenuity can devise, a just and reasonable disposition of this matter for all of the parties. After all, it is the largest railroad merger in our history and if not handled properly could seriously disrupt and irreparably injure the entire railroad system in the northeastern section of the country - to the great detriment not only of the parties here but to the public convenience and necessity of the entire Nation.The judgment of the District Court is reversed and the cause is remanded with instructions that it be remanded to the Commission for further proceedings not inconsistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT. APPENDIX G.* Provisions for the Protection of E-L, D & H, and B & M.1. Pending final determination of the petitions for inclusion filed by E-L, D & H, and B & M in this proceeding and in Finance Docket No. 21510 et al., or such other period of time as the Commission may prescribe, hereinafter called the protective period, and on traffic for which E-L, D & H and B & M are competitive factors, the merged company shall not publish or provide for any new or changed routing practice and/or freight rates or services, either locally or jointly with other carriers, which would divert or tend to divert traffic from routes in which E-L, D & H or B & M, now participates, or participated at the time this merger application was filed, or take any action or engage in any practice or conduct contrary to the purpose and general objectives of this condition as explained in this report.For the purpose of illustrating - but in no way limiting - the application of this condition, the following specific provisions are prescribed:A. During the protective period, and as to the described traffic, the railroads which shall make up the merged system will be considered separate railroads, as they now are, for the purposes of establishing new routes or rates or privileges and changes in present routes, rates or privileges.B. When any of the described freight traffic is delivered to carriers of the merged system, it shall be allocated among the routes of the system in accordance with practices employed by the system's railroads at the time this merger application was filed.C. Where through routes and joint rates are now in existence via any component railroad of the merged system and E-L, D & H or B & M, the participation therein of such components shall be maintained during the protective period with the same vigor as such components have heretofore exercised in competition with each other and other carriers, to the end of preventing noticeable diversion from such routes to any other route in which the merged company participates. D. The merged company for the protective period shall agree to joint rates and divisions thereof on its freight traffic interlined with E-L, D & H or B & M under terms no less advantageous to E-L, D & H and B & M than are the terms which those three carriers now have with the component carriers of the merged system, and, in the event of any changes in such joint rates, the divisions shall not be changed in any manner which will result in E-L, D & H or B & M receiving proportionally less than they now receive on joint rates with such component carriers.E. In conjunction with E-L, D & H and B & M, the merged company shall, during the protective period, keep open all routes now in force for the transportation of freight over the lines of the three companies and the component carriers of the merged system; shall maintain thereon service equal to or better than that being given on the date this merger application was filed; shall improve such service, to the extent within its power, at least as necessary to make the said through routes fully competitive with other routes in which the merged company participates; and, where joint rates are now in effect or were in effect when this merger application was filed, it shall maintain such rates; and where change in those rates becomes appropriate, changes shall conform to the requirement of provision D above.2. The term "competitive factor" shall be construed to mean that at the date of this order or at the time this merger application was filed, E-L, D & H or B & M was both participating in the particular route, rate or service and was handling traffic thereon.3. E-L, D & H and B & M shall be indemnified by the merged company under the circumstances and according to the plan specified in the report, supra.4. This appendix constitutes a plan for protection against the effects of the applicants' merger and does not apply to loss caused by: (a) hostile or warlike action by (1) any government or sovereign power (de jure or de facto) or (2) military, naval or air forces; (b) insurrection, rebellion, civil war, et cetera; (c) national disaster; (d) economic depression; (e) strikes; (f) act of God; or (g) other similar state of affairs.5. The interpretation, application and enforcement of the conditions in this appendix shall be governed exclusively by the following provisions:A. All controversies arising under this appendix shall be determined with finality by the Interstate Commerce Commission in the manner indicated below.B. (1) Except as to section 3, supra, whenever E-L, D & H or B & M considers that these protective conditions are being violated, or that a violation will result from the effectuation of a tariff publication in which the merged company participates, they may (individually or collectively) file a complaint with the Commission, Board of Suspension, and with the merged company, specifying the rate, route, practice, privilege, or such matters constituting the alleged violation and setting forth in a statement verified by an appropriate official of the complainant all the data giving rise to the complaint.(2) In the event the Board of Suspension shall determine that, as to the matter complained of, E-L, D & H or B & M is a competitive factor (as defined in these conditions), it shall in the case of a tariff publication not yet effective, suspend the tariff forthwith for the protective period (as defined in these conditions), and shall conduct an investigation into the matter complained of; and if the alleged violation is found not to exist, the Board shall thereupon order the suspension removed; and, in all matters not involving a tariff not yet in effect, the Board shall investigate the matters complained of; and, if in any investigation, it finds that these protective conditions are being violated, it shall order the cancellation of the violative tariff provisions or, where a tariff is not involved, the termination of the violative conduct. Orders of the Board shall have force and effect as orders of this Commission and shall be enforced as such.C. All controversies arising under section 3 above, shall be determined by the Commission, Finance Board No. 2. Complaints, verified by an appropriate officer of the complainant, shall be addressed to such Board and the merged company, specifying both the basis of the complaint and the relief sought.D. (1) All determinations as to whether E-L, D & H or B & M is a competitive factor shall be made within 10 days after a complaint is filed; and final decisions as to issues raised by a complaint shall be rendered within 90 days after the complaint is filed.(2) Appeal shall lie to the Commission, division 2, from orders of the Board of Suspension; and to the Commission, division 3, from orders of Finance Board No. 2.(3) Special rules for proceeding before the Boards and appealing therefrom shall be promulgated by this Commission at a future time.6. Notwithstanding the provisions of sections 1, 2, 3, 4, and 5, an agreement pertaining to the interests of E-L, D & H and/or B & M may be hereinafter entered by the merged company and the protected carriers, or any of them, which shall supersede the protection provided by such sections to the extent the agreement does not violate the provisions of the Interstate Commerce Act or the Commission's rules and regulations thereunder.7. In the event applicants fail to accede to the above-named conditions, consummation of the proposed merger will be deferred for 2 years or such time as the Commission may determine to be necessary to protect the interests of D & H, B & M and E-L. 8. These conditions shall be construed, administered and enforced with the view to protecting the E-L, D & H, and B & M and the shipping public which depends upon them for transportation, against the effects of the merger for the period and purposes set forth above.9. These conditions are to be applied in addition to the standard conditions set out in appendix I hereof.[Footnote *] 327 I. C. C. 475, 561.[Footnote 1] "Competitive factor" was defined as any particular route, rate, or service on which any of the "protected railroads" were handling traffic at the time the merger application was filed or at the date of the order.[Footnote 2] We include it in this discussion since the Commission intends to include it in the Penn-Central system as soon as terms and conditions are agreed to or fixed.[Footnote 3] In the matter of the New York, New Haven and Hartford Railroad Company - Debtor. No. D.C. Conn.[Footnote 4] This proceeding involved the merger of the Nickel Plate. E-L sought inclusion in this proceeding along with B & M and D & H. After E-L had withdrawn its application the Commission found that the merger "should have no harmful effects" on B & M and D & H. The Commission retained jurisdiction for five years to permit E-L, B & M and D & H to again petition for inclusion. See 324 I. C. C. 1, 19-31. Each of the roads so petitioned and it is this inclusion proceeding that is now before the Commission.[Footnote 5] Among these, CNJ claims it has been deprived of a hearing on the effect on it of the inclusion of the NH in the Penn-Central merger. As the Commission points out, however, the terms and conditions of the NH's inclusion are subject to further proceedings and the Commission has specifically given to CNJ leave "to seek protection for [its] traffic and gateways," at that time. 327 I. C. C., at 527. Moreover, CNJ also says, it has not been afforded a hearing on its claim that the merger will also deprive it of important overhead coal traffic now delivered by CNJ to D & H at Wilkes-Barre, Pa. This might be lost, it alleges, because of the direct connection between D & H and N & W which will be available over the trackage rights that Penn-Central is being required to grant D & H. We know nothing of the merits of these claims and, of course, indicate no decision thereon. However, we assume that the Commission will in each instance afford the CNJ an opportunity to be heard concerning them.MR. JUSTICE BRENNAN, concurring.I join the Court's opinion. In its determination whether the merger is consistent with the public interest, the ICC did not discharge its statutory duty to consider the effect upon that interest of the inclusion, or failure to include, the E-L, D & H and B & M. The ICC order authorizing immediate consummation of the merger as consistent with the public interest must therefore be set aside. - I. The ICC's approval of the Penn-Central merger is the last of three authorizations for consolidation of major eastern roads. In the first, the C & O was allowed to control the B & O.1 In the second, the N & W was permitted to merge with the Nickel Plate.2 The ICC has been confronted with the problem of what to do with the E-L, D & H and B & M since they petitioned for inclusion in the proposed N & W-Nickel Plate system as a condition of approval. E-L's precarious financial condition led to that carrier's withdrawal of its petition in favor of inclusion by negotiation, 324 I. C. C. 1, 21, and as a consequence of the denial of the D & H and B & M petitions, 324 I. C. C., at 31-32. In the meantime, the Penn-Central proposal had come before the Commission, and D & H, fearful that the Penn-Central merger might be approved and consummated before its inclusion in a major system was assured, argued that approval of Penn-Central be held up by consolidating the two proceedings, or that immediate consummation of N & W-Nickel Plate should be made contingent on inclusion upon equitable terms of the three roads in the event Penn-Central is later approved. 324 I. C. C., at 30-31. The ICC denied these requests, but recognizing there was substance to D & H's fears, it retained jurisdiction for five years to permit the roads to file petitions for inclusion in the N & W system. Inclusion was to be required upon equitable terms if "found consistent with the public interest," and consummation of the merger would constitute "irrevocable assent" by N & W to the condition. 324 I. C. C., at 148.Before N & W-Nickel Plate was approved, the Penn-Central proposal had been filed. The three roads, appreciating the danger Penn-Central would pose to their survival, sought inclusion, conditioned upon denial of their inclusion in N & W. Soon after, negotiations between E-L and N & W for voluntary inclusion apparently broke down, because at approximately the same time the three roads filed petitions for inclusion in N & W, and N & W and C & O filed applications to merge with each other, stating that only such a merger could support the inclusion of the three roads in N & W on equitable terms and consistently with the public interest. The three roads urged in their applications both for inclusion in Penn-Central and for inclusion in N & W, that Penn-Central be delayed until their inclusion in one of the systems was assured. This was tantamount to a request that the two proceedings be consolidated for decision, and the Department of Justice supported their position. The ICC found, as the three roads alleged, (1) the service rendered by the three roads "is essential and the public interest dictates that it be preserved," and (2) it is "doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged ... ." 327 I. C. C. 475, 529, 532. All the parties concerned recognized, however, that inclusion of the roads in N & W would be preferable to inclusion in Penn-Central, and that it would be some time before the N & W inclusion proceeding was completed. Rather than delay consummation of Penn-Central, which the ICC found would result in substantial savings and improved service, the ICC ordered immediate consummation. It pointed out that the three roads had petitions for inclusion in N & W pending, and provided that, in the event inclusion in N & W was denied, the three roads could petition the ICC for one year following the judgment of denial to allow or require inclusion of the roads in Penn-Central, on equitable terms, if found to be in the public interest. 327 I. C. C., at 553. Meanwhile, in addition to usual conditions for preserving existing routes and gateways, the ICC prescribed "unprecedented" conditions of two kinds: (1) traffic conditions requiring Penn-Central to continue existing practices and route patterns with respect to traffic competed for by the three roads; (2) conditions guaranteeing the three roads an indemnity computed on the basis of a fixed share of the combined total of the revenues realized by them and Penn-Central; this was to compensate the roads for income lost from diversion of their traffic to Penn-Central. 327 I. C. C., at 532. These conditions were acceptable to Penn and Central but not to the three roads or to N & W and C & O-B & O.Proceedings to set aside the ICC order were brought in the District Court and petitions for reconsideration were also filed with the ICC. Some of the latter attacked the validity of the conditions on the ground that they were imposed without hearing. E-L and D & H, however, renewed their complaint against the approval before assurance of their inclusion in a major system and alternatively attacked the conditions as indefinite and inadequate, demanding in addition to be indemnified for capital loss. C & O-B & O and their family lines for the first time introduced evidence that the merger would adversely affect them, and argued that the indemnification condition of the original order would create a community of interest between the protected roads and Penn-Central. The Department of Justice urged postponement to consider the questions raised concerning the conditions and the evidence of adverse effect offered by C & O-B & O.3 The ICC rescinded the indemnity conditions pending a hearing on whether they should be modified and whether a capital loss indemnification condition should be added, but refused on the ground of laches to hear the evidence offered by the C & O. 328 I. C. C. 304, 318. The ICC reaffirmed its approval of the merger subject to Penn-Central's acceptance of the conditions as finally formulated, although not foreclosing Penn-Central from seeking judicial review of any provision for capital loss indemnification. 328 I. C. C., at 329. The District Court denied interlocutory relief enjoining Penn and Central from going forward with the merger.4 II. The statutory duty of the ICC is clear. Section 5 (2) (b) of the Interstate Commerce Act, as amended by the Transportation Act of 1940, authorizes the agency to approve only those consolidations it finds "will be consistent with the public interest ... ." 54 Stat. 906, 49 U.S.C. 5 (2) (b). The statute creates no presumption that mergers generally are either consistent or inconsistent with that interest; rather, it requires that each proposal be examined in depth to determine its effects upon the national transportation system. Thus, the ICC is explicitly directed to consider "(1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected." 49 U.S.C. 5 (2) (c). The National Transportation Policy is the controlling guide, McLean Trucking Co. v. United States, , and that policy requires the Commission "to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers ... to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense." 49 U.S.C., note preceding 1. These provisions call for the application of discerning judgment to a wide range of factors, and preclude the position that the purpose of the 1940 Act is simply to promote railroad consolidation.5 The ICC has recognized that inquiry into a proposed transaction does not end with the possibilities for increased economies, but extends to "the effect of the transaction upon adequate transportation service to all parts of the public which would be so affected,"6 which encompasses the "duty, as an administrative matter, to consider the effect of the merger on competitors and on the general competitive situation in the industry in the light of the objectives of the national transportation policy." McLean Trucking Co. v. United States, supra, at 87. "The public interest is the prime consideration, and in making that determination we must have regard for all relevant factors." Toledo, P. & W. R. Co. - Control, 295 I. C. C. 523, 547.A critical factor, not in my view properly applied in this case, is "the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction ... ."7 The Commission is authorized, "as a prerequisite to its approval of the proposed transaction, to require, upon equitable terms, the inclusion of another railroad or other railroads in the territory involved, upon petition by such railroad or railroads requesting such inclusion, and upon a finding that such inclusion is consistent with the public interest." 49 U.S.C. 5 (2) (d). The ICC recognizes that it is required to consider the issue of inclusion even when no petition is filed,8 because if a proposed transaction "would endanger or impair the operations of other carriers contrary to the public interest," Chicago, B. & Q. R. Co. - Control, supra, 271 I. C. C., at 157, inclusion of the affected carriers is required by and not merely consistent with the public interest.In this case the ICC, although determining that the three roads perform an essential service and that their inclusion in some major system is required by the public interest, takes the position that its duty as to inclusion is sufficiently discharged when it provides for the possibility of inclusion in either N & W or Penn-Central, and meanwhile promises to impose protective conditions. My disagreement is not with the proposition that the Act vests wide discretion in the agency to allow a merger to go forward while conditions as to inclusion are worked out. The Commission has broad authority to approve transactions "subject to such terms and conditions and such modifications as it shall find to be just and reasonable ...," 5 (2) (b), and "may from time to time, for good cause shown, make such orders, supplemental to any order made under paragraph (1), (2), or (7), of this section, as it may deem necessary or appropriate," 5 (9). It has in fact occasionally reserved jurisdiction (1) to work out equitable terms for an inclusion it has already determined is required by the public interest, New York Central Unification, 154 I. C. C. 489, 493-494;9 and even (2) to determine after consummation whether inclusion will be consistent with or required by the public interest, Union Pac. R. Co. Unification, 189 I. C. C. 357, 363.10 But decisions of this sort proceed upon the assumption that inclusion will later be possible, and that therefore the finding that the proposed consolidation is in the public interest will not be undermined. This assumption is not always warranted. An inclusion may turn out to be impossible, either because of inability to work out equitable terms, a circumstance upon which inclusion orders have invariably been conditioned, or because upon full consideration the effects of the contemplated inclusion might be regarded as so detrimental that the proposed merger which made necessary the inclusion would be against the public interest.The Commission must decide, in the first instance, whether the risk of such ultimate developments is acute enough to counsel against approval of a consolidation subject to the working out of the terms of an inclusion or to the working out of both the terms and the inclusion. See Jaffe, Judicial Control of Administrative Action 565-567 (1965). But resort to the practice of deferring the accomplishment of inclusions or other ends required by the public interest must be carefully weighed and reviewed. Where there is little or no danger that inclusion consistent with the public interest and upon equitable terms might turn out to be impossible, it is sufficiently likely, despite deferral, that the Commission will have fulfilled its basic statutory duty. Where there is a significant possibility, however, that a deferred inclusion upon which a finding of public interest is premised will be unattainable or attainable only by setting into motion new forces which have not been weighed in evaluating the basic proposal, then the Commission's statutory duty to consider all the relevant factors has not been properly discharged. And ICC action of this sort generally creates dangers far greater than those which normally accrue when an agency or court fails to apply the governing standard to all the relevant facts, since the decision to allow consummation is often irreversible, as it concededly is in this case, or reversible only at enormous expense.Prior authorizations deferring decision on inclusions held to be required by the public interest entailed no significant risk that the ICC had approved a consolidation without fulfilling its statutory duty. When, in New York Central Unification, supra, the Commission authorized immediate consummation but retained jurisdiction to assure that terms would be worked out for the purchase of lines whose purchase it had required because their preservation was found to be essential to the public interest, there was no doubt that equitable terms could be arranged. The roads to be included were short lines, complementary to the New York Central system, so consummation of the proposed unification created no reason to expect a detrimental effect. Moreover, the roads were required to submit the issue of value to arbitration in the event they failed to agree. 154 I. C. C., at 493. When, in Union Pac. R. Co., supra, the Commission deferred until after consummation both the question whether the public interest required inclusion and the matter of working out terms, there was no indication that inclusion might be impossible because of its effects without rendering the proposed transaction against the public interest, or that equitable terms for inclusion might be unattainable, or that the short lines involved would be subjected to danger from traffic diversion or otherwise during the period between consummation and inclusion. The transaction authorized only accounting changes; no change in operation was either contemplated or possible. 189 I. C. C., at 363.11 This case is in striking contrast. Allegations are made by the Department of Justice and numerous other parties that inclusion of the protected roads in either of the major systems contemplated by the Commission might not be possible consistent with the public interest or upon equitable terms. These arguments demonstrate that, because of possible difficulties involved in the inclusion proceeding and in establishing acceptable interim conditions, the "opportunities for the ultimate inclusion of E-L, D & H and B & M in a major rail system ..." which the Commission has endeavored to preserve create serious uncertainties.The first and more obviously uncertain alternative is inclusion in Penn-Central itself. The Commission retained jurisdiction to allow the three carriers to seek inclusion in Penn-Central within one year after final denial of any of their petitions for inclusion in N & W. All concerned recognize that inclusion in N & W is the preferable solution, since inclusion of the roads in Penn-Central would create a virtual monopoly of all rail traffic in most of New England and New York.12 (See Appendix A for a map depicting this result.) It is true that Commissioner Webb said in the N & W inclusion proceeding that "the Penn-Central reports indicate that the merger would be consistent with the public interest notwithstanding any lessening of intramodal competition resulting from inclusion of EL, D & H, and B & M," Norfolk & W. R. Co. - Merger, F. D. No. 21510, p. 27, but this statement is refuted by the Penn-Central reports themselves. Both the Examiners and the Commission expressly reserved for a later time the question whether inclusion of the roads in Penn-Central would be consistent with the public interest,13 and rather than implying that the merger would be in the public interest despite inclusion of the protected roads, the Examiners' Report and the Commission's opinions indicate that the merger was approved under the assumption that the protected roads would be included in N & W.14 The "opportunity" for inclusion in the N & W hardly presents a less risky alternative. The N & W proceeding has gone to hearing and Commissioner Webb, acting as Presiding Officer, has issued a report recommending inclusion in N & W of E-L and D & H, and authorizing inclusion of B & M if the parties are able to agree to terms. There has as yet been no action by the ICC on the report; and based upon its contents and the objections raised in this Court, there is a significant possibility, given the present state of circumstances, that inclusion in N & W might be unattainable or attainable only at the price of rendering the Penn-Central merger against the public interest, and that, even if inclusion could be accomplished consistent with the public interest, it might be impossible to work out equitable terms. Appellees make much of the fact that N & W, by consummating its merger with Nickel-Plate, "irrevocably agreed to include these three petitioners in their system upon terms agreed upon among themselves or, if necessary, prescribed by [the ICC], provided such inclusion is found to be consistent with the public interest." 327 I. C. C., at 529. But this condition expressly assumes a favorable resolution of both of the questions in dispute. As Commissioner Webb said in the N & W inclusion report:"the only obligation expressly imposed on N & W ... was to include the petitioners if the Commission found such inclusion to be consistent with the public interest and if the Commission also found that the inclusion could be effected on terms `equitable to all parties involved,' both findings to be subject to full judicial review." N & W Inclusion Report, at 16. Commissioner Webb's recommended disposition reveals clearly that the dangers stemming from deferral exist even as to inclusion in N & W. He rejected an argument of C & O that its plan for absorption of the three roads into a merged C & O-N & W system was mutually exclusive with inclusion of the roads into an independent N & W, and the contentions of C & O and others that they would be adversely affected by the inclusion. He found inclusion of all three roads consistent with the public interest, pointing out that the roads would be able to survive in N & W despite significant losses to Penn-Central, and that greater intramodal and intramodal competition and better services would become possible. N & W Inclusion Report, at 31-32. However, he found substance to arguments relating to each of the three roads that their required inclusion would be against the public interest. Since authorization of the Penn-Central merger is premised on a finding that the roads must be included in a major system, these arguments are of great relevance here, and I address myself to them.As to E-L, N & W argued inclusion would be too great a burden in light of its financial condition; for, although E-L showed a modest profit in 1965 for the first time in years, N & W contended it was too soon to draw any optimistic conclusion and that it was no more able now to absorb E-L than it had been a few years before when the Commission refused to require E-L's inclusion in N & W because of E-L's "precarious financial plight" and "the burden another railroad would assume if it absorbed the Erie-Lackawanna now ... ." 324 I. C. C., at 25. Commissioner Webb recognized that this argument had some merit, and characterized E-L's growth as "erratic." N & W Inclusion Report, at 17, 10. So enormous is E-L's debt, in fact, that the parties themselves agreed it "precludes a merger of N & W and EL now or at any time in the near future." Id., at 84. As a consequence, the Commissioner recommended that only control of E-L by N & W be required, looking to eventual merger with assumption of liabilities when circumstances would permit. D & H has no financial problem which would interfere with immediate merger, but Commissioner Webb found that the only sufficient connection between D & H and N & W was E-L, and therefore recommended that an order requiring inclusion of D & H in N & W be conditioned on inclusion of E-L, id., at 139, which consequently makes the arguments relating to E-L applicable to D & H as well. With respect to B & M, Commissioner Webb agreed with N & W and refused to recommend that its inclusion in any form be required, because of B & M's poor financial condition and limited prospects for recovery. He recommended only that inclusion be authorized, in the unlikely event N & W saw fit to agree to pay, within five years of the inclusion, a minimum rate for B & M shares equal to almost twice their value under Commissioner Webb's own appraisal. Id., at 153, 156.It is not entirely clear, therefore, that E-L and D & H will be ordered included in N & W, and the likelihood that B & M will not be included under present circumstances is great. Therefore, it is reasonably possible that the premise upon which the Commission has proceeded in authorizing consummation of Penn-Central - that all three must be included in a major system - may be unattainable through inclusion in N & W because the required inclusion of at least one and possibly all three may not be consistent with the public interest. Neither is it a sufficient answer to this uncertainty that B & M could be included in Penn-Central, since its value to that system because of the monopoly it would make possible in large areas of New England would make inclusion economically feasible at equitable terms. As we have seen, whether Penn-Central would be worth the price despite this result is a matter of some dispute, which the ICC has never considered.The Commission's duty to consider all the relevant effects of a consolidation before authorizing it extends, moreover, not only to whether an inclusion necessary to make the proposed transaction consistent with the public interest is in fact attainable, but also to whether such an inclusion, even though attainable, might set in motion events which could put the basic transaction proposed in a less favorable light. Thus, even if it is assumed that inclusion of E-L and D & H in N & W will occur, and that leaving B & M temporarily independent would not undermine the consistency of the Penn-Central merger with the public interest, it is incumbent upon the ICC to consider the potential effects on the public interest of such an outcome before authorizing consummation. Clearly, the ICC has not done so, and on this record there is a substantial likelihood that effects of enormous significance to the public interest might result.Commissioner Webb refused to consider N & W and C & O's plan for merger with inclusion of the smaller roads, because he concluded the issue of inclusion could be settled without regard to the plan. It is clear, however, from the Commissioner's recommendations, that adoption of the N & W-C & O plan may well be a consequence of the Penn-Central merger both through its effect on the smaller roads and its effect directly upon N & W and C & O. The uncertainties with respect to inclusion of the roads in N & W will be highly probative evidence when the Commission gets around to considering the N & W-C & O proposal. E-L's large debt, for example, which now prevents its outright merger in N & W, would be less of an obstacle if N & W and C & O were combined and thereby strengthened. Even more significant is the fact that B & M's inclusion, presently regarded as impossible in N & W, would probably be possible if N & W were combined with C & O-B & O.15 There is no doubt, moreover, that C & O and N & W will, in addition to offering a solution to the inclusion problem, allege that they stand to be seriously hurt by the Penn-Central system unless they are allowed to combine. Although Commissioner Webb refused to hear evidence offered by C & O to prove such allegations, and although the Commission also refused on the ground of laches to grant C & O's petition to reopen Penn-Central to introduce evidence of traffic diversion, the ICC agreed to modify the finding of the Examiners in this case, Penn-Central Report, at 305, that the net effect of Penn-Central will not be detrimental to C & O, CNJ and other carriers or to their ability to provide general transportation service. Instead, the Commission substituted the finding that a detrimental effect "has not been shown of record ...," 328 I. C. C., at 318, and thereby left it open to C & O to allege and prove at some later time that its merger with N & W is in the public interest at least in part because of traffic diversion caused by Penn-Central. With respect to N & W, some evidence of adverse effect from Penn-Central seems probable in light of Commissioner Webb's refusal to deduct from the value of the three roads the losses anticipated through diversion of traffic to Penn-Central, because "N & W has resisted corresponding adjustments in its own earnings despite its admissions that it would suffer serious losses of traffic to Penn-Central ... ." N & W Inclusion Report, at 44. The refusal to deduct any of the anticipated losses meant, in effect, that Commissioner Webb proceeded upon the assumption that N & W would lose the same proportion of traffic to Penn-Central as E-L expected to lose.16 It therefore appears that Penn-Central will increase the likelihood of, and may actually cause, an affiliation of N & W and C & O. The ICC has given no thought to whether such an affiliation would be in the public interest. It would create a virtual rail monopoly in some southeastern States (see Appendix B for a map depicting this result), which includes important traffic in coal between the border States and the Norfolk port area, from where it is exported abroad, and it is strongly opposed by both Penn and Central. Had the ICC faced the problem of inclusion, it might have been led to consider the possibility that Penn-Central could cause or increase the likelihood of an N & W-C & O affiliation. Only by considering this possibility could the ICC fulfill its obligation to consider all the relevant factors before approving the merger.The "opportunity" reserved by the ICC for inclusion of the roads in N & W is therefore, like the "opportunity" reserved for inclusion in Penn-Central, shrouded in doubt as to whether inclusion could be required consistent with the public interest. Concededly, there is far more reason to believe that voluntary inclusion in N & W could at least be accomplished consistent with the public interest than could inclusion in Penn-Central. But on the other hand, while equitable terms could probably be arranged for inclusion in Penn-Central, it is open to serious controversy whether equitable terms will be attainable for inclusion of the roads in N & W. Commissioner Webb has found, of course, that equitable terms for B & M's inclusion in N & W cannot be worked out, and a possible consequence of this will be to create pressure in favor of the N & W-C & O plan or compel inclusion of B & M in Penn-Central. But even as to E-L and D & H (because its inclusion will probably be dependent on E-L's), the present controversy surrounding the conditions designed for interim protection makes considerably uncertain whether equitable terms will be possible once Penn-Central is consummated. The purpose of the traffic and indemnity conditions originally imposed but now being reconsidered is to maintain the preconsummation status quo between Penn-Central and the three roads. One obvious end inferred from this purpose is to prevent irreparable harm to the three roads. But inherent in the finding that the public interest requires eventual inclusion of the roads in a major system and in the fact that the protective conditions are interim only is the purpose of keeping the roads intact so their inclusion on equitable terms will be possible. There is substantial controversy, however, over the validity and effectiveness of each of the proposed conditions. The Commission has, in fact, reopened the Penn-Central proceeding for hearings to determine in what respects the conditions originally imposed should be modified and whether or not a capital loss indemnity should be imposed. 328 I. C. C., at 328. Modifications are to be applied retroactively, and Penn-Central is to have judicial review only on the capital indemnity issue. But despite these assurances, the three carriers and other non-protected carriers attack the conditions on several grounds, at least some of which cannot lightly be dismissed.There are three types of conditions involved: (1) traffic conditions; (2) indemnity for loss of revenue; and (3) indemnity for capital loss. The traffic conditions are expressly devised to prevent Penn-Central from increasing its competition with the protected roads. In brief, they restrain Penn-Central from taking any action or engaging in any practice "which would divert or tend to divert traffic ...," either directly or indirectly, from the protected roads. 327 I. C. C., at 561. While the ICC's authority to impose this restriction is unquestioned, great controversy exists concerning its intended scope. The three roads, relying upon the ICC's expressed intention to prevent "any" loss of revenue "as a direct result" of consummation, 327 I. C. C., at 532, claim that Penn-Central may take no step to improve service on routes in which they participate, even if the improvement is designed, for example, to meet truck competition. They also claim that the conditions should be applied retroactively to April 27, 1966, when the ICC released its original decision, in order to eliminate the possibility that Penn and Central could defeat the purpose of the conditions by continuing competitive practices begun between April 27 and consummation or by instituting changes during the intervening period. Penn and Central, on the other hand, take a far more limited view of the conditions' scope, despite their assurances before the District Court that the conditions prevent even solicitation of shippers.17 Their position at the reopened proceeding, based upon the Commission's reference to maintaining the pre-consummation "status quo," 327 I. C. C., at 532, is that they should be free to offer any amount or quality of service after merger which they could perform individually or jointly before merger. This interpretation apparently would leave Penn-Central free, for example, to reduce rates on any route which was formerly all-Central or all-Penn, or on any presently existing joint route of Penn and Central, or to pool their cars for better flexibility, even though these actions might result in diversion of traffic from a protected line. See generally Brief for the United States on Appendix G Conditions, F. D. Nos. 21989 and 21990, Jan. 16, 1967, pp. 8-12. Whether the traffic conditions will succeed in preventing the deterioration of the three roads to the point at which equitable terms may be unattainable is a question of some difficulty. Traffic conditions are limited in their usefulness because they cannot eliminate entirely the more general benefits often obtainable through consolidation (such as unified management, better schedules, simplified tracing of cars, less switching and inspection of cars, and greater advertising resources), and because they cannot be operative upon the shipper. Since the ICC deemed the traffic conditions imposed essential to protect the roads, and since even the most rigid traffic conditions are of limited value, the question whether the view of the three roads or that of Penn and Central should be adopted is as important as it is difficult, and its unsettled state contributes to the doubt as to inclusion.The indemnity for loss of revenue, now being reconsidered by the ICC, is to be payable to any of the three threatened lines in the event that it fails to realize, during the indemnity period, gross revenues in the same proportion to the combined gross revenues of Penn-Central and the protected line as the indemnity formula fixes for the protected line in the base period. The indemnity is obviously designed to make up for losses of traffic to Penn-Central despite the traffic conditions. The three roads have argued that the indemnity should be modified to increase payments, but take the position that, even as modified, the conditions would be inadequate. The nonprotected roads claim the indemnity condition is unlawful. Quite clearly, the indemnity would provide a financial interest to the protected lines to divert to Penn-Central traffic they would normally handle in connection with other carriers, such as N & W and C & O, in order to increase Penn-Central's proportion of their combined revenues and thereby to increase their own indemnities. Correspondingly it would provide an interest to Penn-Central to divert traffic to the protected lines to increase their proportion of combined revenues and thereby to reduce or avoid indemnity payments. Whether this community of interest is unlawful or would otherwise be against the public interest has not definitively been settled, since the ICC is still in the process of reconsidering its position. It is relevant here, however, simply to note that the indemnity, viewed by the ICC as essential to interim protection, is meaningfully challenged both as unlawful and as inadequate, and therefore that it too cannot be relied upon to eliminate the doubt concerning whether the protected roads may be damaged during the interim to an extent that would make equitable terms unattainable.The indemnity for capital loss is advanced by the three roads as essential if the merger is to be consummated prior to inclusion. It is directly related to the problem of assuring that equitable terms for inclusion in N & W can later be reached. Commissioner Webb's definition makes clear the proposed condition's purpose:"The term `capital loss,' as used by N & W, EL, D & H and B & M in their petitions for reconsideration in the Penn-Central case, refers to losses of EL, D & H, and B & M traffic to Penn-Central to the extent not offset by traffic gains attributable to their inclusion in the N & W system, with the net annual loss of income, if any, capitalized at an appropriate rate." N & W Inclusion Report, at 25, n. 21. In effect, this condition would guarantee the three roads the difference between what they would lose to Penn-Central and what they would gain by inclusion in N & W. Unquestionably, its adoption would facilitate inclusion, but the fact is that it has not been adopted, and its adoption in any form would be subject to judicial review at the request of Penn and Central. Moreover, the usefulness of the capital indemnity approach has been vigorously challenged by C & O and N & W. They assert that the indemnity will not succeed in keeping the three roads in viable condition, since traffic, once diverted, is likely to stay diverted. The ICC should not, they claim, rely upon an indemnity provision which fails to accomplish the continuation of service it has found to be so essential. C & O-B & O Brief on Capital Loss Indemnification, F. D. No. 21989, November 28, 1966. In this connection they raise once again the specter of an N & W-C & O merger, arguing that their proposal is the only acceptable solution to the inclusion problem.There appears to be some merit in the arguments that some sort of capital indemnity is necessary to assure the attainability of equitable terms for inclusion. While Commissioner Webb left to the ICC in the Penn-Central case the issue whether capital loss indemnification should be paid, he did conclude that inclusion of the three roads "in the system chosen by the Commission in the furtherance of national transportation objectives should not be on terms which reflect any diminution of capital value attributable to the traffic diversion impact of the other system. In other words, the petitioners should not be penalized for anticipating the Commission's desire to preserve rail competition in the territory they serve." N & W Inclusion Report, at 28. His valuation of the smaller roads, therefore, did not reflect the diminution of value anticipated to be caused by Penn-Central, and his apparent conviction was that equitable terms could not be worked out on any other basis, unless a capital indemnity were granted. See, id., at 43.18 In light of these conclusions it can readily be seen that the unresolved issue of capital indemnity is important, and therefore that the objections to it create uncertainty on this score as well as over whether equitable terms are possible.What the ICC has done here by deferring inclusion of the three roads is to defer confronting numerous difficult and important issues which cast substantial doubt upon whether the roads can be included in any major system contemplated for the purpose consistent with the public interest and on equitable terms. In the process it has approved an irreversible consolidation which it found to be in the public interest only upon the premise that the affected roads would be included in a major system. By proceeding in this manner, the ICC has in my view failed to fulfill its fundamental duty to determine whether consolidations are in the public interest on the basis of all the relevant facts. The problems created by a required inclusion obviously are relevant to the question whether the proposal which makes their inclusion necessary is in the public interest. And where, as here, the many problems created are serious and farreaching, the Commission must consider them before arriving at and implementing with finality its ultimate conclusion.While I consider it the ICC's responsibility to weigh the feasibility and effects of an inclusion it deems required by the public interest, I recognize the importance of leaving great flexibility with the agency to deal with emergency situations in order to avoid serious damage to the national transportation system. But it is clear there is no pressing need here which could justify the ICC's action. Commission counsel represent in this Court that the ICC has found "that the merger would result in substantially improved service for the shipping public and in annual savings of at least $80 million for the merged company ... ." Brief of the I. C. C., p. 52. Improved service and economies are commonly the claimed results of rail consolidations, and proportionately the improvements and savings anticipated in this case are no more substantial than in many other mergers. Moreover, the anticipated $80,000,000 annual saving is to be reached about eight years after consummation, 327 I. C. C., at 501, and even this estimate does not take into account the sharp curtailment that would result from the interim protective conditions which were formulated with the avowed intention of maintaining the pre-consummation status quo, see 327 I. C. C., at 532.19 The ICC stressed the financial condition of Penn and Central, including their "persistently low rates of return" and their need for improved equipment, as a ground for authorizing immediate consummation, 327 I. C. C., at 501-502, but once again, this is a stock reason for merger, usually alleged by at least one party. The fact that a merger will provide financial assistance militates in favor of approval, but it is only one of the many important factors which must be considered, and in the case of Penn and Central this point has lost much of its force, since both have had substantial and consistent increases in their earnings in recent years. See Brief of the I. C. C., p. 55. While this does not necessarily lessen the long-term need for consolidation, it does show there is little need for immediate consummation on this ground.The argument that the survival of the New Haven depends upon undelayed consummation is not pressed here with the same intensity with which it was embraced at the agency level. See 328 I. C. C., at 312. Judge Friendly's opinion put this matter in proper perspective by pointing out that it is "unrealistic to suppose that inclusion of NH in the Transportation Company can be accomplished before conclusion of the Commission's reconsideration in this case ... ." 259 F. Supp., at 973. The tenable argument here is that, the longer consummation is delayed, the more difficult will become the task of NH's Trustees in reorganizing the company, and the more possible it becomes due to some unanticipated change of circumstance that the merger may fall through entirely. While every effort consistent with the public interest should be made to protect the invaluable services the NH performs, the difficulties anticipated are largely speculative. If this merger is to benefit its proponents as greatly as they contend, it is no fragile package. And although no unnecessary risks should be taken even with a plan so enthusiastically supported and elaborately designed, a proper concern for the public interest and for the protection of the roads threatened by this merger should have led the ICC to delay consummation.The projected effects of Penn-Central on E-L, D & H and B & M are anything but speculative. Those roads unquestionably will be destroyed unless included in a major system, and the fact that inclusion somewhere is implicitly assured us may be further cause for concern, in light of the contemplated alternatives and of the difficulty and consequences involved in the adoption of either of them. If the ICC should ever be allowed to depart from its statutory duty to consider all the relevant factors before determining the public interest, it certainly should not be upon the mere recitation of factors favorable to the plan's adoption and of speculative dangers and the inconveniences of private parties. The reason Congress has ordered that all factors, including the effects of inclusion or failure to include, be considered, is to avoid danger to the public interest caused by precipitate action, and there is more than ample evidence of danger to the public interest in this case to warrant unhesitating enforcement of Congress' directive. III. The ICC argues that to delay the merger until the three roads are assured inclusion would amount to a consolidation of the proceedings in Penn-Central with the N & W inclusion proceeding, at least for decisional purposes, and that this would constitute a return to the "master plan" approach for railroad unification "unsuccessfully tried under the Transportation Act of 1920, and would probably preclude the consummation of any major rail unification, regardless of its merits." Brief of the ICC, pp. 43-44. The Commission points out that it "consistently has refused to consolidate the Eastern railroad merger or control proceedings," id., at 48, and that the Government's position here is the same as its unsuccessful contentions for consolidation in the C & O-B & O and N & W-Nickel Plate proceedings.It is difficult to understand exactly what the ICC is arguing. Certainly no one contends that the Commission is required, as it was by the Act of 1920, to "prepare and adopt a plan for the consolidation of the railway properties of the continental United States into a limited number of systems." 41 Stat. 481. Nor is it argued that the ICC is required to draw up regional plans for consolidation.On the other hand, it can hardly be said that the ICC is powerless to consolidate proceedings, or for that matter to plan or to take any other reasonable step to enable itself to perform its statutory obligation as custodian for the development in the public interest of a national transportation system; that the ICC is no longer told to plan does not mean it is unable to do so when planning is necessary to fulfill its duties. The ICC is told in the 1940 Act to "conduct its proceedings under any provision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice," 49 U.S.C. 17 (3), and it has in fact recognized that it possesses "the power in appropriate circumstances either to consolidate proceedings in which the issues are similar or closely related, or to postpone a particular decision when so required by the public interest." C & O - Control, supra, 317 I. C. C., at 266. But apart from this explicit power, it is clear from a close appraisal of the 1920 and 1940 Acts that the ICC's responsibilities are far broader now and, therefore, that it would be anomalous to find in a comparison of these two pieces of legislation a basis for the sweeping contention that the Commission can no longer plan.The 1920 and 1940 Acts are similar in several respects. Under both, applications for consolidation are initiated by the parties and approved if found to be in the public interest, and under neither may a consolidation be compelled. The salient difference is that under the 1920 Act the ICC was required to draw up a plan for all the Nation's railroad properties, and was called upon to judge the proposals for railroad consolidation filed with it by private parties in terms of the master plan it had created. Proposals that advanced the plan's fulfillment stood a far greater chance of approval than those that did not, and only in this sense could it be said that parties were unable to initiate plans of their own choice. While the planning function is broad procedurally, however, it was designed to serve only limited ends. Congress' concern was "largely with financial problems," its chief aim being to overcome the problem which arose from the fact that "rates which would provide reasonable returns for strong systems would not permit weak lines to survive, and if rates were raised to take care of the weak roads, the more prosperous roads would enjoy excessive returns." Leonard, Railroad Consolidation Under the Transportation Act of 1920, at 57, 59 (1946). The decision to encourage consolidation into a limited number of systems was of course designed to establish a stronger railroad industry, but it "was not grounded on the premise that economies from operation and the avoidance of competitive wastes would be the principal means of insuring an efficient and economic railway system ..., but, rather, on the conclusion that the financial prosperity of rail carriers would be promoted and effectuated if the weak and the strong railroads which exist side by side in the same territory were to be consolidated into balanced railroad systems with respect to earning power." S. Rep. No. 445, Report on the National Transportation Policy by the Special Study Group of the Committee on Commerce, 87th Cong., 1st Sess., p. 234 (1961). In fact, the Act specifically directed the ICC, in drawing up the plan, to preserve competition as fully as possible and to maintain existing routes and channels of trade wherever practicable. In other words, although the ICC was directed to draw up a national plan against which it was to judge whether applications for consolidation were in the public interest, the judgment was to be made rather mechanically, and the plan itself was to be designed to achieve limited, primarily financial goals.In contrast, as we have seen, the purposes sought through consolidation under the 1940 Act are wideranging, and the public interest includes consideration of all factors relating to the National Transportation Policy. Financial manipulation was deemed inadequate, and the ICC was ordered to weigh numerous, often conflicting, considerations. In light of this "enlarging of the factors or values which an agency must take into consideration," Reich, The Law of the Planned Society, 75 Yale L. J. 1227, 1248 (1966), it seems incongruous to assert that the change from the 1920 Act approach to that of the 1940 Act signifies a change from planning to strictly ad hoc adjudication.It should be clear, in fact, from a full consideration of the ICC's powers, and of the consequences of failing to use those powers, that consolidation and the use of other procedural techniques is not only within the agency's authority, but is often essential if it is to fulfill its function as guardian of the public interest. Section 17 (3), referred to above, appears sufficient to authorize the Commission to adopt procedures calculated to develop complete records with respect to the public interest in particular merger proceedings, and to coordinate separate merger proceedings when necessary to secure the best possible results. Tucker & O'Brien, The Public Interest in Railroad Mergers, 42 B. U. L. Rev. 160, 184 (1962). Within the context of a case-by-case approach, the Commission is authorized under 16 (11) to "employ such attorneys as it finds necessary ... for proper representation of the public interests in investigations made by it or cases or proceedings pending before it, whether at the commission's own instance or upon complaint ...," and it has done so.20 It may and often has called upon its staff to develop information in pending cases. In the N & W-Nickel Plate proceeding, for example, it called upon its Bureau of Inquiry and Compliance to study and report on which railroads would be affected by the merger. It possesses, with appropriate safeguards, broad powers of official notice,21 and in recent merger cases it has frequently referred to facts and arguments in other, related merger cases. Moreover, like most other agencies assigned similar functions, it has broad investigative power, which may be used in the context of adjudication or simply to provide background. Section 13 (2) confers "full authority and power at any time to institute an inquiry, on its own motion, in any case and as to any matter or thing ... concerning which any question may arise under any of the provisions of this chapter, or relating to the enforcement of any of the provisions of this chapter," which includes 5. The ICC has resorted to various forms of investigations and studies to enable itself to perform its obligations. See generally S. Doc. No. 10, Monograph of the Attorney General's Committee on Administrative Procedure, Part 11: Interstate Commerce Commission, 77th Cong., 1st Sess., pp. 93-96 (1941). Particularly noteworthy is the Staff Study on Railroad Consolidations and the Public Interest, by the Commission's Bureau of Transport Economics and Statistics, which contains an analysis of the Commission's decisions in railroad consolidation cases. Reprinted as Exhibit 11, Hearings before the Subcommittee on Antitrust and Monopoly on S. 3097, 87th Cong., 2d Sess., pt. 2 (1962).Finally, although the ICC does not promulgate general plans for consolidation, it has the power under 5 (2) (b) to approve consolidations "subject to such terms and conditions and such modifications as it shall find to be just and reasonable ... ." This authority encompasses the power under 5 (2) (d) to make inclusion of a railroad a prerequisite to approval of a merger, and it does not depend upon the request of any private party involved. It has been broadly construed to enable the ICC to implement previously found conditions and to cope with changed circumstances, e. g., United States v. Rock Island Motor Transit Co., ; American Trucking Assns. v. United States, ; American Trucking Assns. v. Frisco Co., , and the Commission has applied this power, when it has seen fit to do so, with great liberality. It has even gone to the point of conditioning its approval of applications to consolidate upon actions to be taken by railroads not even party to the proceeding.22 In sum, the Commission's practice certainly is not consistent with its assertion here that its "only `planning' power" under the 1940 Act is to include railroads in the region. Brief of the ICC, p. 46.The ICC is pre-eminently an agency "directly and immediately concerned with the outcome of virtually all proceedings conducted before it. It is not intended to be a passive arbiter but the `guardian of the general public interest,' with a duty to see that this interest is at all times effectively protected." H. R. Doc. No. 678, Practices and Procedures of Governmental Control of Transportation, 78th Cong., 2d Sess., p. 53 (1944); see Southern Class Rate Investigation, 100 I. C. C. 513, 603. It is empowered to investigate and gather evidence beyond that presented by the parties where exercise of that power will advance the determination of what best serves the public interest.23 To the same end, the agency has wide latitude in fashioning procedures, and a broad power to condition its approval of proposals. In other words, the ICC is not the prisoner of the parties' submissions.24 Rather, the agency's duty is to weigh alternatives and make its choice according to its judgment how best to achieve and advance the goals of the National Transportation Policy.25 I am therefore not reassured by the ICC's representation that it has "consistently" refused to consolidate the eastern railroad merger proceedings for any purpose or to any degree. The ICC's prior refusals to consolidate are entirely distinguishable, since none of them entailed the risk under the Commission's own findings that a railroad performing essential public service could be destroyed.26 But more generally, while consolidated consideration provides no simple answer to the ICC's problems, see generally Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921 (1965), the very complexity of its task suggests that consolidated consideration may be a useful procedural device, short of an investigation or prearranged plan, for offsetting at least in part the disadvantages inherent in the isolated case-by-case approach, both in formulating and applying policy.Although a case-by-case adjudication may offer advantages in flexibility and continual exposure to concrete situations, "the disadvantages of developing policy through a sequence of limited cases are both numerous and impressive." H. R. Doc. No. 678, supra, p. 81. A significant disadvantage is that individual proceedings "seldom if ever produce sufficiently comprehensive records for the adequate solution of questions of major importance." Id., at 82. Obviously, without all the relevant facts, the chance of a satisfactory disposition is diminished. Although the ICC has tools to assemble complete factual records, it employed virtually none of them in these highly interrelated proceedings,27 including the power to consolidate the proceedings on common issues. Rather, the cases have been rigidly segregated, leading the ICC to resort to extraordinary interim conditions instead of resolving definitively the fate of the three threatened roads. This has had the undesirable effect of enabling each of the major carriers to control the basis for judgment by deciding what evidence to offer or withhold, depending on which course best served its own interest. Evidence of competitive impact has been withheld in one proceeding only to appear at later proceedings in the form of evidence that the company affected must be permitted to merge with another company to protect itself, or that the anticompetitive impact of the later merger will be limited in light of the increased strength and ability to compete of the companies already allowed to merge.28 The carriers have been well aware of the opportunity the Commission's practice provides them, as is illustrated by the statement of the Chairman of the Board of Pennsylvania that "if the C. & O.-B. & O. is approved, that is going to help the Nickel-Plate case and if that is approved, it is going to help our case, going to go right around the circle." Hearings, supra, n. 24, at 397. It is not that the ICC has been unaware of what has been going on. Commissioner Tucker, in the first of the recent trilogy, pointed out that the "failure of the large eastern railroads to present evidence against consolidation is ... a natural consequence of their own self-interest which dictates a reciprocity of silence." C & O - Control, supra, 317 I. C. C., at 326. The fact is that, despite some lip-service to the contrary,29 the Commission has proceeded under the assumption that competitive impact is to be evaluated with the position of the railroads affected very much in mind. Thus the Examiners in this case, when called upon by the Justice Department to weigh the possibly serious adverse effect of Penn-Central upon N & W, C & O-B & O and others, pointed out that the roads allegedly affected had introduced no evidence of adverse effect. They added, realistically and revealingly: "We are fully cognizant of the fact that in the evolving merger picture in the northeast section of the nation, the carriers involved may well have refrained from participation in these proceedings or influenced their subsidiaries not to participate on the grounds that they did not desire to upset their own merger program. Such action, however, infers a managerial decision by each that the anticipated benefits from its individual merger program will outweigh any injury or harm which may result from other merger plans." Penn-Central Report, at 304.30 The approach which this statement and many of the Commission's rulings and practices reveal is based upon a series of unacceptable assumptions. It is simply unrealistic, for example, to believe that all the railroads will always be correct in their estimate even of their own best interests. When a railroad has incorrectly estimated its self-interest, moreover, its reaction may well upset the private agreements or understandings upon which the Commission has in effect allowed its findings to rest. Thus when E-L realized that Penn-Central might be approved before it had secured voluntary inclusion in N & W, it abandoned its agreement with N & W, upon which the Commission relied, and petitioned for inclusion in Penn-Central, thereby setting into motion the controversy in this case. See 324 I. C. C., at 61-62 (representation of counsel quoted in dissenting opinion). Most recently, C & O-B & O, and their family lines, sought to reopen Penn-Central to introduce evidence of traffic diversion. The Commission observed, in refusing to hear the evidence, that the Examiners' findings that the net effect of the merger would not be detrimental to these carriers or to their ability to provide adequate service "are as much based on a failure of the several petitioners to come forward with assertions or proof of injurious traffic diversion as on any affirmative showing of no effect." 328 I. C. C., at 317. For the first time revealing indignation toward a practice long condoned, the ICC stated that the "measured and deliberate silence" of the railroads at the hearing supports "the inference that they saw more to be gained thereby in their own system-building aspirations than would result from forceful opposition likely to arouse counter opposition. Now, with the N & W-Nickel Plate merger and the C & O-B & O control transactions safely beyond challenge, ... petitioners have nothing to lose and perhaps much to gain by breaking their silence." Ibid.Ultimately, however, the reason reliance upon the estimates of railroads of their own best interests is objectionable is simply that the best interests of the railroads are not necessarily consistent with the public interest, and it is the latter which the Commission is directed to advance. It may be, as Commissioner Tucker stated early in this "gigantic game of dominoes" the Commission has been playing, 327 I. C. C., at 550, "that each carrier has the unalienable private right to abdicate its prerogatives to oppose any consolidation. It is the primary responsibility of the Commission, however, to preserve the development of a sound transportation system in the public interest, and where an application may offer the possibilities of public injury, the Commission must strive to obtain a record which comprehensively covers public considerations." C & O - Control, 317 I. C. C., at 326. See generally, The Railroad Merger Problem, Report of the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess. (Comm. Print 1963). The commendable industrial statesmanship demonstrated by the railroads on many occasions in these recent proceedings only serves, because of the cohesion this demonstrates, see Jaffe, op. cit. supra, p. 405, at 11-13, to aggravate the danger that "grows out of the tendency of these giant corporations to compromise their own differences at the expense of the unorganized public," 2 Davis, op. cit. supra, n. 21, at 378. The regulatory agency must be the bulwark against such compromise. It is "a requisite for administrative viability,"31 that "[t]he outlook of the Commission and its powers must be greater than the interest of the railroads or of that which may affect those interests." I. C. C. v. Chicago, R. I. & P. R. Co., . See Scenic Hudson Preservation Conference v. F. P. C., 354 F.2d 608 (C. A. 2d Cir.), cert. denied, .This merger may well be in the public interest, as well as in the interests of the railroads involved. But the Commission has failed to go about deciding this question in a manner designed to accomplish its statutory responsibility. "Deference to administrative decisionmaking assumes procedures which assure a fair hearing to the affected interests ... ." Jaffe, op. cit. supra, at 566. "As soon as the search for the public interest, even seemingly, becomes a secondary consideration in cases involving more than the adjudication of private rights, no matter how conclusive the exigencies of the situation appear, the independent Commission is doomed to impotency as an instrument of government." C & O - Control, 317 I. C. C., at 297 (dissenting opinion).32 [Appendices A and B follow this page.] [EDITORS' NOTE: APPENDIX A AND B ARE ELECTRONICALLY NON-TRANSFERRABLE.][Footnote 1] Chesapeake & O. Ry. Co. - Control - & O. R. Co., 317 I. C. C. 261, sustained sub nom. Brotherhood of Maintenance of Way Employees v. United States, 221 F. Supp. 19 (D.C. E. D. Mich.), aff'd per curiam, .[Footnote 2] Norfolk & W. Ry. Co. and New York. C. & St. L. Co. - Merger, 324 I. C. C. 1.[Footnote 3] Pennsylvania and Central claim we should not pass upon the Department of Justice's contention that the commission should have delayed consummation until inclusion of the smaller roads in a major system was assured. The issue is, however, presented by the ICC itself, in its statement of Questions Presented, where it recites that, whether the District Court erred in refusing to enjoin consummation pending assurance of inclusion, is a question embraced within the general question presented on these appeals. Brief of the ICC, p. 4. A number of the railroad appellants, moreover, claim they have properly presented the question of delay pending inclusion. These representations amply fulfill the requirement of this Court's Rule 15 (1) (c) (1), and the point has in fact been fully briefed and argued. Neither is there merit to the claim that this issue, clearly raised before the ICC, 327 I. C. C., at 528, was not raised before the District Court. Counsel for D & H complained that the Commission found "the only way the D & H could be protected is through inclusion in some system, but they have not yet made a finding ... as to whether our inclusion in any system is consistent with the public interest," Transcript, p. 58, and counsel for C & O was unable to answer meaningfully Judge Friendly's comment that his "position is really that the merger cannot be consummated until all these other proceedings are carried to a conclusion ...," id., at 80. The District Court explicitly rejected "the claims that consummation of the merger should be deferred until conclusion of all pending rail merger proceedings ... ." 259 F. Supp. 964, 972.[Footnote 4] Although this case arises as an appeal from the District Court's denial of motions for interlocutory injunction, the parties recognize that the lawfulness of the ICC's order permitting immediate consummation of the merger is in issue before this Court.[Footnote 5] The ICC's most recent pronouncement on the issue is in Great N. P. & B. L. R. Co. - Merger, F. D. No. 21478, p. ___, decided March 31, 1966, reconsideration granted January 4, 1967: "The legislative history of section 5 clearly shows that the Congress did not adopt a policy fostering or encouraging railroad unifications. It was the Transportation Act of 1920, not the Transportation Act of 1940, that embodied a policy favoring railroad consolidations... . No such policy is expressed in section 5. To interpret section 5 as implying such a policy is a perversion of legislative history and intent. The public interest scale is balanced. It is not to be tipped by the slightest presumption for or against merger." It is meaningless, of course, to contend that the Act favors unifications that are otherwise consistent with the public interest; it also disfavors unifications inconsistent with the public interest.[Footnote 6] Chicago, B. & Q. R. Co. - Control, 271 I. C. C. 63, 146. See also Detroit, T. & I. R. Co. - Control, 275 I. C. C. 455, 489, sustained sub nom. New York, C. & St. L. R. Co. v. United States. 95 F. Supp. 811 (D.C. N. D. Ohio).[Footnote 7] The Staff Study by the Commission's Bureau of Transport Economics and Statistics on "Railroad Consolidations and the Public Interest" (p. 46), accurately labels this factor "a highly important criterion, since it involves the basic problem of competition among railroads." Reprinted as Exhibit 11, Hearings before the Subcommittee on Antitrust and Monopoly on S. 3097, 87th Cong., 2d Sess., pt. 2, p. 859 (1962).[Footnote 8] When E-L, for example, withdrew its petition for inclusion in N & W the Commission expressly stated that the Transportation Act of 1940 "does not limit our participation in carrier-initiated consolidations to passing upon a proposal on a take-it-or-leave-it basis. We are specifically enjoined to consider, among other things, the effect ... upon the public interest the inclusion, or failure to include, other railroads in the territory involved in the proposed transactions." 324 I. C. C., at 26. Accord, N. Y. Central Securities Corp. v. United States, ; Toledo, P. & W. R. Co. - Control, supra, 295 I. C. C., at 529.[Footnote 9] Accord, Alton R. Co. - Acquisition, 175 I. C. C. 301, 313, where the Commission later concluded, 189 I. C. C. 271, 285, that the public convenience and necessity did not require acquisition of the short lines involved. This is also the course followed by the ICC with respect to the New Haven in the Penn-Central proceedings.[Footnote 10] Accord, New York, C. & St. L. R. Co. - Control, 224 I. C. C. 259, 269, where the Commission, in approving a control application, imposed a condition requiring the applicant to abide by its findings concerning whether the applicant should acquire certain affected short lines.[Footnote 11] In New York, C. & St. L. R. Co. - Control, supra, one of the two short lines seeking inclusion introduced no evidence at all, while the other made an inadequate showing that the public interest required its preservation and no showing whatever that the proposed control transaction would result in diversion of its traffic. 224 I. C. C., at 266-268. Going out of its way "to the end that the intents and purposes of section 5 mat be accomplished ...," the ICC left open the door to the short lines' inclusion if they could demonstrate its necessity or desirability. 224 I. C. C., at 269. Other examples of deferral of agency action cited by appellees are inapposite. The ICC has deferred employee protection, reserving jurisdiction to impose necessary terms and conditions. A. C. Allyn & Co. - Control, 50 M. C. C. 305, 310-311. The likelihood that this sort of problem will have unexpected consequences is very slight. In Atlantic Rfg. Co. v. Public Serv. Comm'n, , the Court ruled the FPC could issue a certificate without making a final determination of the vital matter of price, so long as the certificate was conditioned so "that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined" in subsequent hearings. No injury was contemplated, and the ultimate issue was not likely to be prejudged.[Footnote 12] The Examiners found it "highly likely that the public interest" lies in the direction of inclusion in N & W. Penn-Central Report, F. D. No. 21989, Feb. 26, 1965, at 415. The Commission had indicated in the N & W-Nickel Plate proceedings its receptiveness to inclusion in N & W, and it postponed consideration of inclusion in Penn-Central pending the outcome of the N & W inclusion proceeding.[Footnote 13] The Examiners stated: "No consideration has been given to the effect of the proposed inclusion here oft the D & H, B & M and/or E-L upon competition, and no effort has been made to assess or accommodate the anti-trust laws in light of such action. We believe resolution of such issues would be premature." Penn-Central Report, at 418. The Commission adopted these findings, 327 I. C. C., at 481-482, and explicitly reserved, until after inclusion in N & W was denied, the question "whether inclusion of any one or all of E-L B & M and D & H in the Transportation Company's system would be consistent with the public interest ...," 327 I. C. C., at 531.[Footnote 14] An elimination of competition in New England and New York was not among even the possible anticompetitive effects of the merger contemplated and weighed. To the contrary, the Examiners drew up a chart (Appendix T-2 of their Report) which incorporated the three roads in the N & W system, and which they used to measure competitive impact. Moreover, the Examiners recommended as a condition of approval that Penn agree to grant trackage rights to N & W between Hagerstown, Maryland, N & W's northernmost terminus in the East, and Wilkes-Barre, Pennsylvania, the southwestern terminus of D & H operations, thereby connecting the roads and enabling them to compete with Penn-Central for traffic between northern New York-New England and the south-southwest. Penn-Central Report, at 429-430. The Commission found it unnecessary to uphold the Examiners' action, since the parties had voluntarily entered into an agreement effectuating the Examiners's views, and since an application for Commission approval of the agreement had not yet been filed. 327 I. C. C., at 528. Finally, in appraising the effect of the merger upon service to New York City, the Examiners anticipated that E-L and N & W together would provide one line of competition. Penn-Central Report, at 433. The Commission likewise assumed in appraising anticompetitive effect that E-L would continue to compete with the applicants in the New York port area, and specifically cited as an example of continuing lines of competition that "N & W can join with E-L, LV [the Lehigh Valley], D & H and B & M, among others, in handling transcontinental traffic to and from the Port of N. Y. and New England ... ." 327 I. C. C., at 517, 514.[Footnote 15] In refusing to recommend requiring B & M's inclusion, Commissioner Webb pointed out that such a course would expose N & W to serious risk "and would foreclose B & M from seeking inclusion in the Penn-Central system or in the proposed N & W-C & O system on terms which, by reason of its strategic value or improved earnings, are more favorable than those justified by the record herein." N & W Inclusion Report, at 154. An N & W-C & O system would, as the Commissioner recognized, be far more able financially to absorb the risk of including B & M, and would be willing to other more than B & M's actual value, possibly out of the savings contemplated in the N & W-C & O merger. In fact, under the plan offered by N & W-C & O for merger and inclusion, B & M shareholders would receive almost twice the actual value of their holdings, and, significantly, Commissioner Webb settled on this same amount as the minimum rate which N & W must pay if it decides to absorb B & M. Id., at 156.[Footnote 16] N & W inclusion Report, at 43. See note 18, infra, no further explanation.[Footnote 17] Counsel for Penn and Central represented in the District Court that he construed the traffic conditions to prevent Penn-Central from using its solicitation force to get traffic normally moving on the lines of the three roads routed to the lines of Penn-Central. Transcript, p. 132.[Footnote 18] In working out the value of E-L's stock for the purpose of an exchange with N & W, Commissioner Webb, applying the principle of reciprocal adjustments, refused to deduct from E-L's value the estimated impact of Penn-Central without also deducting from N & W's value the estimated impact of Penn-Central. Since N & W submitted no evidence, he proceeded upon the assumption that the impact upon N & W would be proportionate with the estimated impact upon E-L. The result of this was to enable him to discount completely E-L's capital loss. If this method of valuation were approved, he noted, "the question of capital loss indemnification ... [in Penn-Central] will become moot." Id., at 47.[Footnote 19] In fact, the more effective are the protective conditions, the greater will be their interference with achievement of the planned economies and improvements. Penn Vice-President Large recently testified at the reopened hearings that "the first two million dollars we save as a result of merger is a good five years away." Transcript of Hearing of December 15, 1966, F. D. 21989, p. 22343. Qualified by the statement that he had made no studies on the matter, he testified that he saw "no chance of any substantial savings in the next two years." Id., at 22344.[Footnote 20] Under this power, the Commission called upon Mr. Louis D. Brandeis, later Mr. Justice Brandeis, to represent the public in a general rate increase case. The Five Per Cent Case, 31 I. C. C. 351.[Footnote 21] See generally 2 Davis, Administrative Law 15.01-15.14 (1958).[Footnote 22] In the Penn-Central case, the Examiners recommended, as a condition to approval of the merger, that Penn be required to sell the Lehigh Valley to C & O-B & O, if such sale were later found to be in the public interest, in order to assure New York City an additional competitive line. Penn-Central Report, at 434-435. The Commission felt it did not have to pass upon this recommendation, since Penn agreed after the Examiners' Report was issued to sell LV to C & O-B & O. 327 I. C. C., at 517.[Footnote 23] "A regulatory body such as the Interstate Commerce Commission cannot properly discharge its duty if it remains ignorant of relevant facts simply because they were not introduced in evidence. The Commission should itself supply deficiencies in the record. It should bring to light material which the parties have either overlooked or have willfully failed to call to its attention. It should aid those parties who through lack of resources are unable adequately to present their cases. It should make full use of the expert knowledge of commissioners and staff, and of the mass of transportation information that it has accumulated through the years." H. R. Doc. No. 678, supra, p. 70. See Eastern-Central Motor Carriers Assn. v. United States, , 212, 216-217.[Footnote 24] It was the position of the Chairman of the Board of Pennsylvania before Congress that the ICC should leave the fate of the smaller roads to be worked out after the principal mergers had been approved. Hearings on S. 3097 before the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 87th Cong., 2d Sess., p. 385 (1962). He testified that if an attempt was made to stop the three main proceedings, the entire process "would stop, there is no doubt about it," id., at 384, and responded to the query whether the ICC "has no alternative but to buy the package or nothing at all," that "It is the fact ...," id., at 397.[Footnote 25] There are indications that the ICC has planned all along for three systems. The most striking of these is the use by the Penn-Central Examiners of a chart to evaluate the merger's anticompetitive effect which accounts for all the smaller roads. Penn-Central Report, Appendix T-2. It need hardly be said that the ICC would be proceeding unlawfully if it had determined, without notice or hearing, that a three-system structure was essential, and had then gone through the motions of adjudication.[Footnote 26] The ICC made no finding that either C & O-B & O or N & W-Nickel Plate would lead to the destruction of any other road. See 317 I. C. C., at 265-266, 282; 324 I. C. C., at 27-31.[Footnote 27] There is abundant evidence that the three recent proceedings are highly interrelated. Central petitioned for a general Commission investigation during the C & O-B & O proceeding, alleging that the ICC should not upset the existing competitive balance before evaluating all the facts and determining the part each proposal should play in the solution of the eastern railroad problem. Numerous other parties in that case also petitioned for consolidation of the proceedings, either for hearing or decision, with N & W-Nickel Plate and later with Penn-Central. In the N & W case, the Justice Department argued that the record was inadequate to determine competitive impact and stated "that only through consolidation can a clear picture be obtained of the effects of the Norfolk & Western-Nickel Plate and Pennsylvania-Central mergers on the Erie-Lackawanna, the Delaware & Hudson, and the New England lines." The relationship between the N & W-Nickel Plate and Penn-Central proceedings was palpable, not only on the ground that Nickel Plate competed with Central, but also because of the facts that (1) Penn controlled N & W and had taken the position that it would divest only when it knew how it stood with respect to its application to merge with Central, and (2) it was only through Penn's acquiescence that N & W managed to contract for the purchase of the 108-mile Sandusky line which enabled it to link its main line with Nickel Plate's main line, 324 I. C. C., at 74. Commissioner Webb felt that neither the N & W inclusion proceeding "nor the Penn-Central case can be fully understood if consideration of one is divorced from the other. Unfortunately, the Commission's action in deciding the cases separately has tended to blur vital issues common to both proceedings." N & W Inclusion Report, at 23.[Footnote 28] The best possible example is what happened in this case. Evidence which Central might have presented earlier in the form of an appraisal of the effects of C & O-B & O and N & W-Nickel Plate upon its ability to operate, took the form in the Penn-Central proceeding of the contention that, without a Penn-Central merger, both Penn and Central would be at a competitive disadvantage since neither "separately would compare with C & O-B & O or N & W-Nickel Plate in any element of strength, whether tested by traffic volume, financial results, or the means for improving service." Brief of Applicants, F. D. Nos. 21989-21990, dated June 1, 1964, p. 141. And in appraising the anticompetitive effects of a Penn-Central merger, the Examiners in this case stated that, "[a]lthough in certain ... categories, the increases [to be brought about by the merger] are significant, the degree of relative dominance by P. R. R. in comparison with the other roads, has been decreased significantly as a result of the consummation of the N & W and C & O-B & O transactions by reason of the fact that these latter two systems have also increased their relative share." Penn-Central Report, at 424. The Commission, too, indicated its conviction that Penn-Central became more justifiable now that the other systems were authorized, by citing "the growing strength of the N & W and C & O-B & O systems" as a check against possible abuse of economic power by Penn-Central, and by pointing out "that applicants will face increasing competition from those two greatly strengthened rail systems." 327 I. C. C., at 514, 519.[Footnote 29] The Commission said, for example, in the C & O-B & O case: "Notwithstanding Central's withdrawal from these proceedings, the effect of the proposed transaction on the operations and traffic of Central and other carriers is an issue to be considered." 317 I. C. C., at 280. It took insignificant steps, however, to resolve the conflicts of evidence concerning competitive impact upon Central, and failed entirely to weigh the combined effects on Central of both C & O-B & O and the pending N & W-Nickel Plate merger. See 317 I. C. C., at 319.[Footnote 30] The District Court, in the C & O-B & O case, took basically the same position when, in rejecting the Justice Department's contention that the proceeding ought to be consolidated with others, it considered "significant" the fact that no railroad had joined the Department in its request and stated that self-interest would have required them to do so if the adverse impact was actually serious. 221 F. Supp., at 31. The Penn-Central Examiners were more accurate in their appraisal, since they impliedly recognized that the decision not to appear meant only that the road had decided the benefits from its own merger plans outweighed the disadvantages to it of another merger, and not that the railroad in fact contemplated no serious adverse impact upon itself.[Footnote 31] Huntington, The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest, 61 Yale L. J. 467, 509 (1952). Compare Morgan, A Critique of "The Marasmus of the ICC: The Commission, the Railroads, and the Public Interest," 62 Yale L. J. 171 (1953).[Footnote 32] I find it surprising that my Brother FORTAS refers to today's decision as "a reversion to the days of judicial negation of governmental action in the economic sphere." In those days the Court took a restricted view of the power of Congress and its agencies to regulate our economy. That view "has long since been discarded." Ferguson v. Skrupa, . Our position today, shared by the Solicitor General and the Department of Justice, is not one of judicial negation but of insistence that the ICC fulfill Congress' directive to supervise in the public interest the destiny of this Nation's transportation system.MR. JUSTICE DOUGLAS, dissenting in part.While I agree with the Court that the terms of the conditions which the Commission proposes to attach to this merger should be known before we approve it and while I join the opinion of the Court, I would go much further. There are underlying issues brought to us by a few of the parties which we should face. Those issues present not the merits of the merger but the adequacy of the Commission's findings. It is, of course, not for us to determine whether the merger is desirable or undesirable. We do not sit as a planning agency. Nor are we entrusted with the task of making the large policy decisions that underlie approval or disapproval of this new concentration of transportation power and wealth. Our task is one of review within the narrow confines of 5 (2) (c) of the Act by which Congress has provided standards for the Commission. Our sole task is to determine whether the Commission has satisfied by its findings the standards provided by Congress. I do not think it has.A word should be said as to the background of this irresponsible ICC decision. The Commission early indicated its preference for a consolidation of most eastern rail carriers into three systems: (1) C & O-B & O; (2) N & W-Nickel Plate; (3) Penn-Central. The initiative was left to the carriers. The Commission never sought, proposed, or examined into a master plan. On June 27, 1960, it indeed denied a petition of New York Central requesting the Commission "to embark upon a general investigation of the unification, consolidations, and mergers of the rail carriers within Central Freight and Trunk Line Association territories" with a view to formulating "principles by which both [the Commission] and the carriers shall be governed in Section 5 cases in the future."1 The making of mergers was based upon "attainable" alliances rather than upon "any truly balanced competitive basis."2 Today's predicament was prophetically forecast only a few years ago:3 "Although superior lineups may exist, it is suggested that it is better to have `attainable mergers' (approved by the big financial interests) rather than none at all. However, the helter-skelter method by which these mergers have become `attainable' for decision has developed into a complicated problem for the Commission, particularly in the East. The eastern story begins with the Commission's approval of the merger between the Norfolk & Western and the Virginian in 1958, two successful and competitive coal roads. By that merger, the New York Central lost its access to the Pocahontas coal territory and it lost a friendly connection which more or less had always been considered a Central road. Thus the Virginian, apparently not `attainable' by the Central was now placed in a position to enhance the competitive power of the Pennsylvania (which controlled the Norfolk & Western). This merger, plus the announced intention of the Chesapeake & Ohio to acquire control of the Baltimore & Ohio, sharpened the Central's interest in its competitive survival against the massive Pennsylvania system which was well entrenched in the rich Pocahontas coalfields and in the Tidewater ports. The Central tried to outpoint the C & O in getting control of the B & O, but it lost out, largely because it couldn't convince Swiss bankers of any financial advantage in the merger. Then the Central negotiated with the C & O for a three-way merger between the respective companies, which the Central's president Perlman believed would provide a balanced, competitive system with the Pennsylvania. At the same time, Mr. Perlman was stating that a B & O-C & O union would seriously hurt the Central. In the meantime, the Norfolk & Western had filed for merger with the Nickel Plate, for a leasing of the Wabash, and for the purchase of the Pennsylvania's Sandusky line. This was apparently the last straw for the Central. It had been outmaneuvered, and thus did the only thing left it could do - agree to merge with the Pennsylvania. That merger was `attainable,' and is now the crucial determinant of most rail reorganizations." The Commission denied requests to consolidate the eastern consolidation proceedings for decision. See Chesapeake & Ohio R. Co. - Control - Baltimore & Ohio R. Co., 317 I. C. C. 261, 266; Norfolk & Western R. Co. and New York, Chicago & St. Louis R. Co. - Merger, 324 I. C. C. 1, 19.The Commission's piecemeal, hands-off approach to the merger problem is, however, not commanded by the Transportation Act of 1940. There is no evidence that Congress intended to remove entirely the planning and policy function of the Commission with respect to rail consolidations. Indeed, such a position ignores the mandate of the preamble to the Act of 1940, which provides that its provisions shall be administered with a view to "promote ... adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers; ... all to the end of developing, coordinating, and preserving a national transportation system." As my Brother BRENNAN notes, the 1940 Act significantly broadened the Commission's responsibility; it would be "incongruous to assert that the change from the 1920 Act approach to that of the 1940 Act signifies a change from planning to strictly ad hoc adjudication." Ante, p. 427. The Commission has ample authority to insure a co-ordinated approach to railroad consolidations; it is not straitjacketed by a disjointed case-by-case approach. Yet the contrary attitude of the Commission is evident in this case. The Department of Justice argued that the eastern district should be served by four systems: Penn, Central, C & O-B & O, and N & W into which E-L should be merged. If it was shown that the traffic could not support four systems, the Department proposed that Penn should be consolidated with N & W and Central with C & O-B & O. The Commission's answer to this was that it could not compel the alignments suggested by the Department of Justice and was limited to alignments suggested by the carriers. This suggests, as my Brother BRENNAN indicates, a subservience of the Commission to the railroads' estimates, the railroads' proposals, the railroads' evaluations, the railroads' prophecies of the future.The C & O-B & O merger was approved, 317 I. C. C. 261, sustained, 221 F. Supp. 19, aff'd per curiam . The N & W-Nickel Plate merger was approved, 324 I. C. C. 1; but its legality was not litigated. This is the first time the question of legality has been presented to this Court after full argument.Now the "panic button" is being pushed here; and we in turn are being asked to act hurriedly and become the final instrument for foisting this new cartel on the country. Some cases generate great pressures on the Court. Mr. Justice Holmes once remarked that those cases make "bad law." Northern Securities Co. v. United States, . "For great cases are called great ... because of some accident of immediate over-whelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." Id., at 400-401. We should, I submit, decline the present invitation.We are here concerned with 5 (2) (c) of the Act which governs railroad mergers and provides: "In passing upon any proposed transaction under the provisions of this paragraph, the Commission shall give weight to the following considerations, among others: (1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected." The four items listed are not exclusive but only exemplary for they are only "considerations, among others."The Commission's decision omits findings on many critical questions, all of which are, I think, relevant if the statutory ingredients of the public interest are to be evaluated under 5 (2) (c).Mr. Justice Brandeis, writing for the Court in United States v. B. & O. R. Co., , emphasized that basic findings cannot be "left entirely to inference." Mr. Justice Cardozo emphasized the point again in United States v. Chicago, M., St. P. & P. R. Co., , saying, "We must know what a decision means before the duty becomes ours to say whether it is right or wrong." More recently we emphasized the necessity of findings to responsible judicial review: "Congress has also provided for judicial review as an additional assurance that its policies be executed. That review certainly entails an inquiry as to whether the Commission has employed those statutory standards. If that inquiry is halted at the threshold by reason of the fact that it is impossible to say whether or not those standards have been applied, then that review has indeed become a perfunctory process. If, as seems likely here, an erroneous statutory construction lies hidden in vague findings, then statutory rights will be whittled away. An insistence upon the findings which Congress has made basic and essential to the Commission's action is no intrusion into the administrative domain. It is no more and no less than an insistence upon the observance of those standards which Congress has made `prerequisite to the operation of its statutory command.' Opp Cotton Mills, Inc. v. Administrator, , 144. Hence that requirement is not a mere formal one. Only when the statutory standards have been applied can the question be reached as to whether the findings are supported by evidence." United States v. Carolina Carriers Corp., , 489. Many crucial issues, necessary for evaluation by the Commission, are not even exposed in this record, let alone appraised. The absence of these findings makes judicial review impossible.What is the nature of this cartel? What financial interests control it? Only one of the largest stockholders in the applicants is known. The remaining largest stockholders are brokerage houses and Swiss banks holding nominal title for their customers. The beneficial owners are unknown, and apparently of no concern to the Commission. The Commission was specifically requested to determine who are the beneficial owners of the stock and who would control the merged company. The Commission refused to accede to the request. Nor did the Commission consider it relevant that, through interlocking directorates, the proposed directors of the merged company are directors of and interested in corporations which deal with the railroads or that the control of railroads is steadily being concentrated in the hands of banks, insurance companies, and other large financial interests.What effect on other roads within the area served by these carriers will result from the merger? What effect on rail competition outside the area will result? What will be the effect on the towns served by the two roads? Will some dry up? Will the community dislocations be offset by tangible gains?None of these questions is answered by the Commission. Yet 5 (2) (c) of the Act, which governs railroad mergers, demands findings on the various ingredients of the public interest.Concededly, community dislocations are relevant to the public interest. For the Commission considered them crucial in concluding that this merger would not be approved unless the New Haven were included.4 What is the need of the New Haven? Its need is mirrored in the economic well-being of the New England States. With a rundown carrier, how can they attract new factories? Without new factories how can their employment needs be met?If these basic community needs are relevant in the case of the New Haven, why are they not relevant when we turn to the needs of the communities served by the other roads which are about to be merged? We are told that the three mergers mentioned, including the present one, will result in many communities being reduced "from main line to secondary line status" - a condition "particularly true with respect to the merger between the Pennsylvania and New York Central when most of the New York to western gateway traffic will be routed over the Central's northern route."5 The healthy small towns stretched along these railroads may be more important in terms of the "public interest" than the profit and loss statements of the carriers, or the market prices of their securities, or the power of the small oligarchy that will sit at the head of this behemoth that will be turned loose. Rail mergers are only one form of regional planning. And whatever the attitude of the Commission may have been, it cannot in light of 5 (2) (c) delegate that duty to the carriers or become their rubber stamp or fail to relate to the standard of the "public interest" the impact of the merger on the various communities served by these lines.The Commission in its report gave practically its entire consideration to two aspects of the merger. The first dealt with the financial needs of the two carriers and on this the Commission concluded that the new company would have the financial strength and power and resources to deal with all the difficult contingencies in the years ahead. The second main consideration related to the problem of competition within the region served by the two roads. The Commission indicated that, although there will be less competition, the improved transportation service was a justified price to pay for that loss.6 Yet one who reads the report and reflects on these two considerations and their treatment by the Commission, cannot help but wonder why they would not justify any conceivable merger - all the southern roads and eastern roads - all the eastern roads and the western roads - or the western and southern and southwestern roads so that we would end up with one or two rail transportation systems. I put the matter that way because the arguments of the Commission are so generalized and so obviously mere rationalizations that they could easily apply to any merger; for the theory of all promoters of mergers, as Mr. Justice Brandeis exposed many years ago,7 is to justify mergers by increased financial power and improved service.The size and power of the new company will be awesome, and some say excessive. It has been estimated that the new company will account for 51% of the assets, 50% of the trackage, 52% of the operating revenues, 75% of the revenue passenger miles, and almost 53% of the railroad employees in the eastern area. The combine will be almost twice as large as the next system and three times as large as the third system. Some experts have concluded that the new company will have a dominant position with respect to the negotiation of rates and its relations with the public and government, to the detriment of other railroads and other modes of competition. It will have a vast amount of power over the decisions of the Association of American Railroads with respect to rail transportation policy. Its power will extend well beyond the eastern district. The Railroad Merger Problem, Report of the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 8-9 (Comm. Print 1963).The routes of the applicants parallel each other through their respective systems and have many common points. They serve many communities and areas in common, and in several one or the other is the sole road; in others the applicants alone compete. The Commission realizes that the merger will eliminate the existing choice for many shippers and communities. It downgrades the severity of the impairment of competition. And the Examiners' Report frankly takes the position that interrailroad competition is not very important because the industry is characterized by oligopoly, rendering price competition nonexistent and service competition unimportant.8 The Commission thinks that intermodal competition will prevent the new company from misusing its tremendous size and power,9 even though it recognizes that the railroads have an inherent advantage in transportation of bulk and long-haul traffic. The Examiners' Report and the Commission's opinion suggest that competition among railroads, rather than being the norm, is to be avoided because it is "inefficient." Comparing the Commission's handling of the competitive effects of this merger with its treatment of the competitive effects of the proposed Great Northern Railway Company-Northern Pacific Railway merger gives one the impression that the cases were decided by different regulatory bodies rather than the same commission. In the Great Northern case the Commission was sensitive to the anticompetitive effects of the merger and recognized that competition is necessary to protect the public interest. The Commission also noted that intermodal competition is not enough to furnish the impetus for lower prices and increased service, especially with respect to low-rated bulk shipments and long-haul traffic. See Great Northern Pacific & Burlington Lines, Inc. - Merger - Great Northern R. Co., ___ I. C. C. ___.These problems apparently bother the Commission because in spite of its findings concerning the improved financial position of these two carriers and the improved transportation system even with the loss of competition, it nonetheless refused to approve the merger unless the New Haven road, which is in a notoriously desperate condition, is included. So what the Commission in effect is saying is that the increased financial prowess of the new company and the improved transportation service are themselves not enough to satisfy 5 (2) (c) of the Act. What satisfies 5 (2) (c) of the Act apparently is the opportunity to salvage the New Haven situation. This, I admit, is a relevant consideration if there is to be a merger. But if salvaging the New Haven so as to maintain the economy of New England is relevant,10 then what about the economy of the cities and counties stretched along the lines of these two roads which will be merged? What degree of obsolescence will they suffer?Railroads are critical factors in the production and distribution of goods and in the supply of materials. They are still the basic transporters of low-cost, bulk goods and long-haul merchandise. Their rates and efficiency of service affect industrial competition. Adequate railroad transportation, at reasonable costs, is essential to the economic development of any region or area. The curtailment of rail transportation is bound to have an adverse effect on the areas and communities which rely on railroads to service industry upon which their economic health is dependent. Many communities along the lines are dependent upon the employment furnished by railroads. What will the effect of this merger be on these communities? Will industry locate elsewhere because of inadequate rail transportation? Will the firms located in the region cease to expand or move to other areas? Will decreased employment opportunities mean that the residents of these towns must move elsewhere, thus creating more of the ghost towns which we already see along many of the trunklines? None of these questions is even considered by the Commission. After a very generalized discussion, the Commission concluded that the merger would not seriously impair Pennsylvania's economic health. But this "finding" is foreshadowed by the Commission's expressed view that railroads have little if any responsibility in furthering the economic development of an area and by the Examiners' position that the Commission need not consider the employment, tax, and developmental effects of the merger. And what about the other States and communities so vitally interested in the effects of this combination? The Commission's opinion is totally unenlightening. The Examiners' Report is no better. It contains a long list of interesting statistics, on a state-by-state basis, but makes no attempt to evaluate the effects of the combination.11 Compare Stanford Research Institute, Selected Impacts of Railroad Mergers (1965).This merger, like the ones preceding it, apparently is a manipulation by financiers and not a part of regional planning which is the ultimate function of the Interstate Commerce Commission. Yet if the imprimatur of the Commission is to be put on the plans of the financiers much more should be known about them. What interests will control the new company? How powerful will those interests be? Are the interests which will control the new company antagonistic to the basic interests of the region being served? Is the Commission putting its imprimatur on a new form of banker-management of rail carriers that was so disastrous to the New Haven and that Mr. Justice Brandeis exposed in Other People's Money 129-136 (1933)?The New Haven Railroad is indeed an excellent example of manipulation at the hands of financial interests rather than management by railroad operators. Mr. Justice Brandeis said: "The rise of the New Haven monopoly presents another striking example of combination as a developer of financial concentration; and it illustrates also the use to which `large security issues' are put. "In 1892, when Mr. Morgan entered the New Haven directorate, it was a very prosperous little railroad with capital liabilities of $25,000,000 paying 10 per cent dividends, and operating 508 miles of line. By 1899 the capitalization had grown to $80,477,600, but the aggregate mileage had also grown (mainly through merger or leases of other lines) to 2017. Fourteen years later, in 1913, when Mr. Morgan died and Mr. Mellen resigned, the mileage was 1997, just 20 miles less than in 1899; but the capital liabilities had increased to $425,935,000... . [A]dditional issues were needed, also, because the company paid out in dividends more than it earned... . [O]f the capital increase, over $200,000,000 was expended in the acquisition of the stock or other securities of some 121 other railroads, steamships, street railway-, electric-light-, gas- and water-companies. It was these outside properties, which made necessary the much discussed $67,000,000, six per cent, bond issue, as well as other large and expensive security issues. For in these fourteen years the improvements on the railroad including new equipment have cost, on the average, only $10,000,000 a year." Id., at 121-122. "[T]he most grievous fault of this banker-managed railroad has been its financial recklessness - a fault that has already brought heavy losses to many thousands of small investors throughout New England for whom bankers are supposed to be natural guardians. In a community where its railroad stocks have for generations been deemed absolutely safe investments, the passing of the New Haven ... dividends after an unbroken dividend record of generations comes as a disaster. "This disaster is due mainly to enterprises outside the legitimate operation of these railroads; for no railroad has equaled the New Haven in the quantity and extravagance of its outside enterprises... . "Close scrutiny of the transactions discloses no justification. On the contrary, scrutiny serves only to make more clear the gravity of the errors committed. Not merely were recklessly extravagant acquisitions made in mad pursuit of monopoly; but the financial judgment, the financiering itself, was conspicuously bad," Id., at 130-131. The years passed, the New Haven emerged from bankruptcy reorganization, and in 1954 Patrick B. McGinnis won a proxy fight for control of the road and became president. His group owned very little preferred stock; but in order to pay dividends on the common, in which he was heavily interested, he first had to pay cash dividends on the preferred. These cash dividends were paid out in very large amounts, the record showing the following: 1954 ...................... $3,440,180 1955 ...................... 2,457,700 At the same time, maintenance outlays were severely cut. Total outlays for maintenance of ways and structures dropped from $27,641,046 in 1953, to $19,647,313 in 1954, to $18,338,714 in 1955. Total maintenance of equipment decreased from $24,306,984 in 1953, to $22,794,715 in 1954, to $21,933,318 in 1955.It is estimated that this cabal of financial interests lost $7,000,000 of the railroad's money in 20 months. Cash reserves dwindled, current liabilities mounted, as did long-term debt. "It's stock speculation venture instead of a railroad business" said one director. Time, January 30, 1956, p. 76.Is the new Penn-Central Company also to be milked by predatory finance?Alternatively, if a regime as big and as powerful as this is to be turned loose, should it stay in private hands? How big can an enterprise of this character get without stepping over into the public domain? "How far should the consolidations be allowed to go before they cross the threshold of private enterprise and enter the domain of private government?"12 Is the power and the control so great that we should think in terms of public ownership13 rather than private ownership?These considerations go to the very vitals of 5 (2) (c) of the Act and none of them is answered. They are emphasized by the apparent worry in the mind of the Commission that in spite of all the arguments for the merger that it could advance, it decided not to approve it unless the New Haven was bailed out. Bailing out the New Haven may be very important in the public interest, as I have said. But in the context of these modern mergers there is the terrible spectre that the Federal Government may be creating new Frankensteins who will be running the country in a way that people can ill afford.The alarm is increased by the Commission's default as respects the other eastern rail carriers. There are three so-called "protected" roads - Erie-Lackawanna, Delaware & Hudson, and Boston & Maine. The Commission found that this merger would destroy those three as independent railroads and proposed the imposition of protective conditions. What those protective conditions will be we do not know. If they include a capital indemnity, the "protected" lines will in substance disappear from the competitive scheme. Should competition be bought off in that manner?Should the three "protected" carriers go into this Penn-Central merger and create a monopoly of rail transportation east of Buffalo and north of New York City? The Commission has never made any effort even to consider whether such an inclusion in Penn-Central would be in the public interest.There are suggestions that perhaps the three "protected" lines belong in the N & W-Nickel Plate system. In that merger it was recognized that E-L was a logical addition but that inclusion on equitable terms was not possible because of E-L's poor financial condition. 324 I. C. C. 1, 22. The Commission therefore reserved jurisdiction to give E-L five years to improve its financial position to become eligible for inclusion in N & W on equitable terms. 324 I. C. C., at 28-29.14 The Penn-Central merger has frustrated this purpose by threatening the very survival of E-L, D & H and B & M as independent roads. If they are not to become members of the Penn-Central system, their only alternative seems to be inclusion in N & W. The failure of the Commission to consolidate these cases raises the distinct possibility that the three "protected" carriers may not be included in any system, and being unable to withstand the pressure of the Penn-Central, will be destroyed. As my Brother BRENNAN points out, the inclusion of these roads in the N & W system is no less risky than their inclusion in the Penn-Central system.The question whether the Penn-Central merger is in the "public interest" therefore cannot be resolved until the fate of these three protected roads is determined. They too have stockholders and bondholders. They too service shippers, consumers, and communities. They too are an important part of the competitive system in the East. The truth is that before the Commission can exercise an informed judgment on the Penn-Central merger, it must deal with the serious impact which this merger will have on the three "protected" carriers.There are also seven unprotected eastern rail carriers whose future is in doubt. Their fate is emphasized anew by a new merger application now pending before the Commission. As I have said, the Commission has promoted three systems in the East - the C & O, the N & W, and Penn-Central. Now the C & O and N & W have applied for approval to merge. This proposal would include the three "protected" roads I have mentioned. It would also include Central of New Jersey and Reading. Hearings on that merger will commence April 17, 1967. If that merger is approved, we will have two huge eastern rail cartels rather than three.Was the creation of the new Penn-Central behemoth the reason for the desire to create this second one?What will happen to both the three "protected" lines and the seven unprotected ones under a regime of two eastern cartels? Where will they best fit to maintain as much of a competitive system as possible?No one at present can say because the entire merger problem of the East is nowhere near solution. Until the total plan is known, an informed decision is impossible. The Commission does not even know what effect the inclusion of NH will have on Central of New Jersey which claims that the inclusion of NH should not be authorized, unless CNJ is at least included in one of the new large systems. Under 5 (2) (c) the Commission is required to consider "the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction." In McLean Trucking Co. v. United States, , we stated that the Commission has the duty "to consider the effect of the merger on competitors and on the general competitive situation in the industry."Its default in that regard is conspicuous here. Those required findings cannot be made until a master plan or plans for the East are designed and the place of each rail carrier in the new system is finally rationalized and determined.The Commission has now approved three privately planned mergers embracing over 85% of the railway operating revenues in the entire eastern railroad market. The unresolved but crucial question is whether the remaining roads can survive as presently constituted; or if they cannot, how they can best be restructured to promote competition against one or more of the new merger systems.The case must be remanded to the Commission so that the competitive regime of the East under two or three or four or five rail cartels can be determined. The impact on the communities of the region must be determined. The competitive balance of the several combines must be appraised. The position of each rail carrier in the new picture must be established. And the financial hierarchy of the new cartels must be exposed so that the centers of control will be known. Only when all these facts are known can the Commission make the required findings under 5 (2) (c). Only then will judicial review of a responsible kind be possible. It is only when the required findings are made that we will be able to know what the Commission's opinion really means and to determine whether the statutory standards have been met. See United States v. Carolina Carriers Corp., 315 U.S., at 480-489.We should say here what we said in Securities and Exchange Commission v. Chenery Corp., , "The Commission's action cannot be upheld merely because findings might have been made and considerations disclosed which would justify its order as an appropriate safeguard for the interests protected by the Act. There must be such a responsible finding... . There is no such finding here."I would reverse the lower court and remand the cases to the Commission not only to spell out the terms and conditions specified by the Court but also to make the necessary findings on the reach and merits of the merger as required by 5 (2) (c) of the Act.[Footnote 1] Petition of the New York Central R. Co., Docket No. 33475. Prior to the Transportation Act of 1940, it was the duty of the Commission under 5 to prepare "a plan for the consolidation" of the railway system "into a limited number of systems." The 1940 Act relieved the Commission of that duty. H. R. Rep. No. 1217, 76th Cong., 1st Sess., 6. See Schwabacher v. United States, ; County of Marin v. United States, . But there is no indication that Congress deprived the Commission of the power to propose one, though its power to enforce one proposed by it in a 77 reorganization was denied by St. Joe Paper Co. v. Atlantic Coast Line R. Co., , by a narrow four-to-three vote.[Footnote 2] The Railroad Merger Problem, Report of the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 31 (Comm. Print 1963).[Footnote 3] Id., at 31-32.[Footnote 4] "... [W]e find that this merger, without complete inclusion of NH, would not be consistent with the public interest, and, accordingly, we will require all the New Haven railroad to be included in the applicants' transaction." 327 I. C. C. 475, 524.[Footnote 5] Report, supra, n. 2, at 14, n. 52.[Footnote 6] The reasons usually advanced in support of railroad mergers are: (1) consolidations will improve the ailing financial condition of the constituents; (2) consolidation will result in a reduction of cost of operations; (3) consolidations will improve service capability. The premises underlying these justifications have been seriously questioned. It has been suggested that the financial condition of the industry is not as poor as merger applicants suggest. See, e. g., Keyserling, The Move Toward Railroad Mergers 72-74 (1962); The Railroad Merger Problem. Report of Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 88th Cong., 1st Sess., 49-54 (Comm. Print 1963). Some have maintained that the wave of railroad mergers, and the resulting contraction of physical plant, will impair rather than improve the roads' financial condition and dampen the Nation's economic development. See, e. g., Keyserling, supra, at 75-78. Others have noted that the present condition of the industry is due to a multitude of causes, and that solutions must strike at the roots of the problem rather than accept the temporary palliative of merger. See, e. g., Nelson, Railroad Transportation and Public Policy 327-435 (1959); Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 242-273 (1959); National Transportation Policy, S. Rep. No. 445, 87th Cong., 1st Sess., 67-71 (1961). It has been suggested that massive alignments may result in serious diseconomies, not in the savings predicted by their proponents. See, e. g., Healy, The Effects of Scale in the Railroad Industry (1961). The Commission does not address itself to these problems.[Footnote 7] See Brandeis, The Curse of Bigness 185 et seq. (1935).[Footnote 8] Cf. Conant, Railroad Mergers and Abandonments 25-40 (1964); Conant, Railroad Consolidations and the Antitrust Laws, 14 Stan. L. Rev. 489, 490-495 (1962).[Footnote 9] It is argued that intermodal competition is not sufficient to protect the public interest, that intramodal competition is necessary to insure progress, efficiency, and lower prices. Only the firms in the same industry have the same cost structures and products. Thus, no firm has a sheltered market due to inherent advantages over other firms, a condition which obtains when competition is only intermodal. Meyer, Peck, Stenason & Zwick. The Economics of Competition in the Transportation Industries 240-241 (1959). Further, the position that intermodal competition is sufficient to protect the public interest ignores the fact that the number of regulated trucking lines on important routes is rapidly decreasing, due to entry control and mergers in the motor carrier industry. If the present trend continues, we may soon see a very limited number of firms - perhaps one from each mode - serving any given route. If that happens, the possibilities of oligopolistic lessening of competition without explicit rate and market agreements is likely. See Chamberlin, Theory of Monopolistic Competition 46-53 (1956).[Footnote 10] The facts are detailed in the Examiners' Report. The plight of Rhode Island is typical: "N. H. is the only Class I railroad serving the State of Rhode Island. Over 50 percent of the population in Rhode Island are employed in the manufacturing industry and such industry is greatly dependent upon rail service provided by N. H., particularly for the inbound movement of raw materials from points outside of New England. In 1962, 35,000 cars were consigned to or shipped by industries located in Rhode Island via N. H. from which the latter derived $5,000,000 in revenue. Three important naval stations in Rhode Island are located at Newport, Quonset Point and Davisville, and in the Narragansett Bay area, the naval installations employ over 10,000 civilians. In addition to freight service, the N. H. provides an important passenger service in the State, and estimates indicate that approximately 1,200,000 passengers utilizing rail service originate or terminate within the confines of this State annually. Providence, a city with a population of 200,000 and Metropolitan Area of 1,000,000 has water facilities to receive shipments of bulk commodities, but since World War II general freight service by water to and from Providence has been discontinued. "The Governor of Rhode Island evidenced his concern at the hearing that the failure to include the N. H. in the proposed merger may result in a loss of service provided by N. H. in the State. It was his belief that without such service, the State would have little chance of attracting new industry; that existing industries might relocate their plants and that without rail service, the Federal Government may well determine to reduce or terminate existing defense installations... ." Report, at 278.[Footnote 11] The Commission's own Bureau of Transport Economics and Statistics has recognized the importance of community dislocations in evaluating the "public interest" aspects of a proposed merger. "[T]he Commission should consider the local and regional impact of consolidations, economically and socially, as a separate criterion or sub-criterion in its decisions ... . Separate consideration of local effects would have the merit of affording opportunity for the Commission to distinguish and determine the relative importance of such factors." Railroad Consolidations and the Public Interest, Staff Report of Bureau of Transport Economics and Statistics 72 (1962).[Footnote 12] Report, supra, n. 2, at 80.[Footnote 13] Some experts have suggested that the trend toward railroad consolidations, which may result in the Nation's dependence upon mammoth combines with excessive power, may be a prelude to nationalization of the industry. See, e. g., Meyer, Peck, Stenason & Zwick, The Economics of Competition in the Transportation Industries 260 (1959); Rail Merger Legislation, Hearings before the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, 87th Cong., 2d Sess., 15 (1962) (testimony of Professor Kent T. Healy).[Footnote 14] On December 22, 1966, Commissioner Webb of the ICC recommended that the Commission direct inclusion of the E-L and D & H, and authorize inclusion of the B & M in the N & W. The Commissioner perceptively noted that, "Unfortunately, the Commission's action in deciding the (Penn-Central and N & W-Nickel Plate) cases separately has tended to blur vital issues common to both proceedings." Norfolk and Western R. Co. and New York, C. & St. L. R. Co., Merger, Finance Docket No. 21510, p. 23.MR. JUSTICE FORTAS, with whom MR. JUSTICE HARLAN, MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting.For more than 45 years it has been the national policy, reflected in congressional legislation, that the railroads of this country should be combined into a limited number of systems. The policy gained acceptance in 1919, when, following World War I, the Government was planning to return the railroads to private ownership and the frail condition of many of the smaller roads became apparent. The Transportation Act of 1920 directed the Commission to formulate a national master plan of consolidation pursuant to which, it was hoped, the railroads would submit voluntary plans for consolidation. The Commission did so, but the opposition to the program was overwhelming and the goal could not be achieved. In 1925 the Commission asked to be relieved of the burden of working out a national plan, but until 1940, its request did not result in congressional action. In that year, Congress enacted the Transportation Act of 1940, which remains in effect and governs the present proceedings. Under that Act, and in all of the years since 1919 or 1920, the national policy of effecting consolidations of the railroads into a limited number of systems has been unchanged. Because of the failure of the technique authorized by the 1920 Act, Congress in the 1940 law abandoned the idea of a formal national plan, and left the power to initiate mergers and consolidation in the hands of the carriers. The Commission became judge rather than architect. See generally, St. Joe Paper Co. v. Atlantic Coast Line R. Co., (Appendix) (1954).The 1940 Act expressly provided that two or more carriers could merge or otherwise combine management, ownership, and operation if the approval of the ICC were obtained. The key provision, which basically governs the present case, is 5 (2): "If the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed transaction is within the scope of subdivision (a) of this [section] and will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable ... ." 5 (2) (b). Among the considerations to which the Commission is to give weight are: "(1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction; (3) the total fixed charges resulting from the proposed transaction; and (4) the interest of the carrier employees affected." 5 (2) (c). Jurisdiction "to enforce, enjoin, set aside, annul or suspend, in whole or in any part, any order" of the ICC, is vested in the district courts by 28 U.S.C. 1336. It is clear, beyond argument - one would confidently assert prior to today's decision - that whether particular railroad mergers serve the public interest, including the antitrust ingredient, is to be judged by the standards of the Transportation Act of 1940 as applied initially by the ICC, and not by this Court.Under the 1940 Act, the Commission's judgment is not to be governed by the antitrust laws. As this Court said in McLean Trucking Co. v. United States, , at 84-85 (1944), there is "little doubt that the Commission is not to measure proposals for all-rail ... consolidations by the standards of the anti-trust laws." In the last Term of Court, a decision of a three-judge district court setting aside ICC approval of a merger was reversed by this Court in a per curiam decision, quoting the above statement from McLean Trucking, because the District Court applied antitrust standards to overturn the ICC decision. Seaboard Air Line R. Co. v. United States, . In that case, the Court said: "It matters not that the merger might otherwise violate the antitrust laws; the Commission has been authorized by the Congress to approve the merger of railroads if it makes adequate findings in accordance with the criteria quoted above that such a merger would be `consistent with the public interest.'" 382 U.S., at 156-157.Until recently, despite the provisions of the 1940 Act, little was accomplished to effectuate the national policy of combining roads into a few major systems. The conflicts and rivalries, the overlaps of conflicting needs and ambitions are so great that the task is formidable and, from time to time, has appeared hopeless. Finally, in 1962, the ICC approved the C & O's acquisition of control of the B & O.1 In 1964, it approved the combination of the N & W and the Nickel Plate.2 And, after more than 10 years of elaborate corporate maneuvering and negotiating, in 1962 the Pennsylvania and the New York Central Railroads filed with the ICC their proposal to merge. Lengthy administrative proceedings followed, and it was not until April of 1966 that the ICC rendered its final decision, approving the merger subject to conditions. Pennsylvania R. Co.-Merger-New York Central R. Co., 327 I. C. C. 475. It modified those conditions on September 16, 1966. 328 I. C. C. 304. If the Penn-Central merger becomes effective, the result will be three large systems, each operating in various and sometimes overlapping parts of the Northeast, middle Atlantic and midwestern States. The Commission's opinions in the three cases indicate its view that the consequences, at long last, will be a substantial measure of progress towards the goal successively announced in the transportation laws of 1920 and 1940.The Penn-Central merger, as approved by the ICC, was attacked by various parties and a temporary injunction was sought in the Southern District of New York. The complainants included a number of railroads, several affected communities and one Milton Shapp. As the matter comes to this Court,3 the only plaintiffs who complain about the merger itself are Shapp and the City of Scranton, Pennsylvania. Shapp, whose rather shaky standing to participate in these appeals is predicated upon his participation before the Commission and the bare circumstance that he is a shareholder in the Pennsylvania Railroad and a citizen of Pennsylvania, asserts here, as he did in the District Court, that in calculating the necessity for the merger and the benefits to be derived therefrom, the ICC relied upon an unwarrantedly pessimistic forecast as to railroad prospects, and that as a result it has approved a transaction which will have serious anti-competitive effects in the East and will inflict economic harm upon the Commonwealth of Pennsylvania. A single community in Pennsylvania, the City of Scranton, concurs with Shapp's analysis and argues in addition that the merger and expected inclusion of the E-L, D & H and CNJ in one or another system will reduce the quantity of rail service now available to Scranton, which is presently served by those three smaller roads. The United States, which questions the correctness of the procedure used by the Commission in protecting the E-L, D & H and B & M, does not challenge the merger itself. Indeed, the Solicitor General has represented to the Court that "the agencies of the Executive Branch that have substantive responsibilities for the formulation of economic and transportation policy believe that the merger is in the public interest and that its consummation should be promptly effected."4 None of the railroads objects to the merger itself as unlawful or unfair. None of the affected States objects. The Commonwealth of Pennsylvania which had at one point opposed the merger withdrew its opposition, and now urges approval of the ICC order. Vigorous attack, however, was and is launched upon the ICC's order by various of the railroads because of provisions in the order addressed to the complications arising from the situation of three smaller roads, the E-L, the D & H, and the B & M.The three-judge District Court, in an opinion by Circuit Judge Friendly for himself and District Judge Levet, declined to issue a temporary injunction to enjoin the merger, Judge Weinfeld dissenting. 259 F. Supp. 964. This Court granted a stay and expedited the case for consideration. The Court today sets aside the ICC's order. It expressly reserves any ruling upon the issue of the merits of the merger. It bases its decision entirely upon the alleged failure of the Commission to make adequate provision for the three smaller roads prior to authorizing consummation. In a separate opinion, MR. JUSTICE DOUGLAS concurs, but concludes that he would also hold the merger itself illegal and the Commission's approval unlawful for this reason. I respectfully dissent. I believe we should affirm the order of the District Court upholding the Commission's action.Certainly, there is no tolerable basis for our attacking the merger on its merits. To do so would be to substitute our judgment for that of the Commission on grounds which, to say the least, are speculative and based upon the claimed superiority of competing economic considerations. We are not at liberty to do this, and if we were free to do so, it would require a high degree of intrepidity on such a basis to overturn a result which, even if we assume its imperfections, generally incorporates a significant step in a direction which national policy has sought for several generations. This is Congress' responsibility, and the task, not of the courts, but of Congress' designated instrumentality, the ICC. The national need to refurbish and revitalize rail communications is urgent - some say of desperate urgency. The ICC has found that the merger here will result in economies and efficiencies aggregating $80,000,000 annually by the eighth year, which it asserts will enable the roads to effect the badly needed modernization of their facilities. This may be a step in the wrong direction, as my Brother DOUGLAS argues; but we have neither the franchise to say so nor the power to do better.The problem presented with respect to the three smaller roads assumes a different form. Here, it is urged that the Commission specifically failed to carry out its statutory duty and that the merger should not be consummated until its task is complete. The facts are as follows:1. The three roads, the Commission has found, cannot survive without inclusion in one of the large, integrated systems. The Commission has assumed, as I shall describe, that they will be included in either the N & W or the Penn-Central systems. The three roads filed applications in both the N & W-Nickel Plate and the Penn-Central proceedings, for inclusion in the resulting system. They have indicated their preference for inclusion in the former. The Commission approved the N & W-Nickel Plate merger and its order has become final. It did not, however, pass upon the application of the three roads for inclusion. On the other hand, it made effective assurance for the subsequent determination of the issue and the effectuation of the result. Its order of approval provided that the ICC would retain jurisdiction for five years to require the N & W to include the three roads on terms that the ICC would itself prescribe in the absence of agreement, and it required the irrevocable consent of N & W to such order as a condition of consummating the merger. The N & W gave its consent. On December 22, 1966, pursuant to the reserved jurisdiction, Commissioner Webb of the ICC recommended authorizing inclusion of the three roads in the system.5 It is anticipated that a Commission order will be entered by July 1 or August 1, 1967. When this order becomes final, if it provides for inclusion of the three roads in the N & W system, that will settle their ultimate fate and will terminate the significance of the conditions to which the Court herein objects and which have resulted in setting aside the ICC's order. It must be remembered, however, that the Commission's order will be subject to judicial review; and if the past is a guide to prediction, the resulting proceedings will be long, complex, and bitter. In short, no one can say whether the three roads will find their ultimate home during this calendar year or the next.6 2. In the present proceeding, the ICC denied the request of the three roads for inclusion in the Penn-Central system, but it provided that if they were not included in the N & W system, they might resubmit the matter by supplemental petition. It is essential to note that no attack is made in this proceeding on these provisions relating to the ultimate fate of the three roads.3. The ICC concluded that the three roads required some interim protection because "when the various consolidations of yards and equipment and the new through routes contemplated by the applicants are effectuated, a substantial amount of traffic could be diverted from E-L, D & H and B & M." Accordingly, it decided to impose certain conditions which I shall describe, and it required of the applicants "their acceptance of and active cooperation in the implementation of conditions" pending ultimate decision as to the inclusion of the three roads in a major system. In this connection, the Commission made the statement that has provided the basis of attack. It said: "It is doubtful that, without inclusion in a major system, these three carriers could withstand the competition of the applicants merged, and, unless they are protected during the period necessary to determine their future, we would not authorize consummation at this time, even though approving the merger." 327 I. C. C., at 531-532.4. The conditions consisted of measures for (1) traffic maintenance, by temporary preservation of present practices and patterns; (2) indemnity payments to cover losses due to diversion of traffic, if any; and (3) procedures to determine disputes under these conditions. The Commission specifically provided, however, that notwithstanding the above, the applicants and the three protected carriers could enter into an agreement for alternate protections "which shall supersede the protection provided by such sections" if not otherwise violative of law. 327 I. C. C., at 563, App. G.5. The three protected carriers complained that the conditions were not adequate for their protection and they specifically demanded, in addition to improvement of the traffic and indemnity provisions, an indemnification against capital impairment. On the other hand, a number of other roads attacked Appendix G on the ground that the indemnity provisions would induce manipulation and diversion of traffic by both Penn-Central and the three roads which would be harmful to them. All of them complained that there had been no hearing, and the nonprotected complainants alleged that the indemnity conditions really amounted to a pooling arrangement which should have been but was not considered under 5 (1) of the Act.6. On September 16, after the present suit had been filed, the Commission granted the various petitions to reconsider Appendix G. Pending hearing and decision on reconsideration, it rescinded the indemnity provisions but left in effect the traffic conditions subject to whatever modifications might be made. 328 I. C. C. 304. The Commission said that "Since the applicants have indicated willingness to accept post-merger modification of the protective conditions, they may proceed with consummation of the merger upon our authorization thereof becoming effective. Such consummation will constitute irrevocable assent on the part of the applicants to any modification resulting from the further consideration herein described and ordered and which is found to be just and reasonable; as well as irrevocable agreement by the applicants to comply fully with the conditions as modified." On October 31, pursuant to this ruling, hearings were commenced on the interim protective conditions.It is the ruling that the merger may be consummated in these circumstances that the Court finds objectionable and on the basis of which the Court halts this transaction which is concededly of major importance to the Nation. The Court reasons that the Commission's order as it now stands fails to implement its findings with respect to the three smaller roads, and unless and until it does so the merger may not be consummated.Fundamentally, I submit, this is based upon a misconception of the ICC's findings. The Commission firmly and clearly held that, as a condition to consummation of the merger, it was necessary to assure that the three roads would be protected pending their inclusion in one of the larger systems. But it is clear that the Commission did not find that it was necessary to fix the terms of such protection prior to consummation of the merger. On the contrary, the Commission prescribed traffic and indemnity provisions in what must, in all fairness, be regarded as a tentative setting.The prescribed conditions were, as the court below noted, "unprecedented in their severity in the history of railroad mergers." 259 F. Supp., at 969. They had not been focused or defined prior to the Commission's report for the apparent reason, understandable to anyone familiar with the administrative process, that they must have been crystallized in the post-argument deliberations of the Commission and its staff. They had not been included in the Hearing Examiners' report. The conditions are complex. Interim protection of the three roads against possible traffic diversion and resulting financial loss depends upon future events which are unknown and largely unknowable. A vast realignment of the sort involved here always has elements of the unique, and only a doctrinaire approach, separated by the miles that lie between the quiet of theoretical condemnation in this Court and the pressures of realistic problems in the administrative agency, can explain this Court's readiness to insist that an unknown and unknowable solution be prescribed in advance. Solutions can be found, prescriptions can be written, to implement the Commission's determination that adequate interim protection must be furnished to the three roads. The Commission's insistence upon such protection is beyond dispute. Its deferral, in part, of the prescription of specific measures to effect this is at least understandable in light of the inherent difficulty of the problem. This is clear: (1) Appendix G, as I have noted, in effect invited the parties to work out their own agreement in substitution for the Commission's formula; (2) the Commission further demonstrated its awareness that only time and experience would perfect the interim conditions by its admonition to Penn-Central to comply not merely with the letter but with the spirit of the protective mandate; (3) the Commission, commendably, I suggest, ordered a hearing and reconsideration of the conditions after litigation commenced and the need therefore became apparent. The Commission, as I have noted, left in effect the traffic conditions, subject to modification, and provided that whatever indemnity provisions might be specified would be retroactive to the date of consummation of the merger. With the assurance that Penn-Central would accept whatever might be ordered in these respects,7 it authorized consummation of the merger. The Court holds that this order approving immediate consummation of the merger is "insupportable," not because the Commission lacked power, but because the Commission deferred full implementation of its own findings that it was indispensable that interim protection be provided the three roads. The Court concedes that the Commission may retain jurisdiction for some purposes.8 It does not "find it necessary to pass upon the question of naked power in the Commission to do what has been done here." Its drastic action is induced solely because of the Commission's decision to effect interim protection of the three roads - to which it and Penn- Central are fully committed - by prescribing only traffic conditions presently and to proceed with deliberation to work out the controversial and complex indemnification provisions. I agree with the Commission that, in view of the complete consent of the applicants to accept the terms ultimately fixed, there is no reason to defer the consummation of the merger until this is done. In any event, the choice of procedure that the Commission has made is not unreasonable; and this Court should not upset a decision of the magnitude involved in this merger except for significant reasons of substance.9 There is no reason of substance for the Court's action; there is no substantive value that is impaired or lost by proceeding as the Commission has ordered.(1) As the Court found, there has been no objection to the substance of the traffic conditions which will continue in effect, except suggestions as to details. Indemnification provisions will be made retroactive to the date of consummation of the merger and will therefore be as fully effective as if originally prescribed.(2) Effective judicial review of the ultimate conditions will be available. If they fail in any respect fully and lawfully to implement the Commission's finding as to the necessity for interim protection of the three roads, they will presumably be modified. It is, with all respect, nonsense to say that the only remedy would be to "unscramble the consolidation." At issue are the indemnity terms. These are the only ones that have not been prescribed. They involve only the guaranty of payment of money on whatever formula the Commission may prescribe in its own motion or after direction by the courts. An order of the Commission or the courts to make such payment can be fully and easily implemented by conventional processes. The traffic conditions are to be effective immediately. They are not under substantial attack. If they are modified in this hearing, that is nothing more than an exercise of the power to modify its order which the Court concedes to be within the Commission's power under 5 (9) of the Act. Cf. United States v. Rock Island Motor Transit Co., .On the other hand, the Court's order, which I submit is insupportable as a matter of law and of sound administration of the principles of judicial review of decisions of administrative agencies, will have unfortunate consequences. I do not know, and I submit the Court cannot know, just how long it will take to satisfy the Court's rigid prescription that the interim protective provisions must be settled. The Court says that it will entail "a very short delay"; that the three roads will be included in the N & W or that the Commission's interim order will be perfected with expedition. I view this prediction with profound skepticism. Too many interests have too much to gain from obstruction and delay; and the maze of administrative proceeding and judicial review is not inhospitable to ingenious counsel bent on delay. The history of ICC proceedings is a source book for dilatory tactics and a monument to the successful burial of good projects by over-elaborate procedures manipulated by experts in the art. Meanwhile, national policy continues unfulfilled; urgent national needs for improved long-haul and local rail service are impeded; the desperate erosion of the New Haven continues at a rapid pace; and the public and communities urgently in need of improved rail service continue to suffer.If this result were compelled by law - if the Court's decision rested upon fault of substance - the practical consequence would have to be suffered with grace. But that is not so. The Commission insisted that the three smaller roads had to receive interim protection and required the applicants to agree to this as a condition of consummation of the merger. It has not modified this. It has not failed to implement it. On the contrary, it has - I think, commendably - embarked upon a procedure which, while assuring that the protections will be forthcoming, subject to judicial review, makes possible the careful and deliberate working-out of its terms and at the same time avoids disrupting the timetable of the merger. If we were to comment upon it, we should, I think, be compelled to applaud the unusual flexibility of method which it demonstrates and which has not always ornamented Commission practices. But we should not indulge in this kind of second-guessing. The plain conclusion is that the Commission's order does not violate any principle of law. It does not fail to implement the Commission's findings. It merely provides for the accomplishment in stages of an objective firmly stated to which it and the applicants are fully committed. This is well within its powers, and we should affirm.Addendum:MR. JUSTICE BRENNAN'S concurring opinion requires these additional comments. He concedes that "this merger may well be in the public interest," but he concludes that the Commission's order approving and authorizing consummation of the merger must be set aside because the Commission has not completed the job of providing for the future of the three roads: the E-L, D & H and B & M. MR. JUSTICE BRENNAN does not contend that, as an abstract matter, settlement of the ultimate destiny of these roads is a necessary precondition to approval of the Penn-Central merger. He recognizes that such a contention would be contrary to statute, precedent, and practical sense. The Commission clearly has power to reserve for the future some problems incident to a merger. Faced - as this Court is not - with the urgent need of coping with the realities of life, the Commission must frequently content itself with less than perfection. Accordingly, MR. JUSTICE BRENNAN agrees that "the Act vests wide discretion in the agency to allow a merger to go forward while conditions as to inclusion are worked out." He argues, however, that in this specific situation, the failure to settle, by definitive order, the ultimate fate of the three roads is error which requires that the order approving the Penn-Central merger be set aside. In my judgment, his analysis lays bare the tortuous speculation upon which the Court's nullification of this merger is based.MR. JUSTICE BRENNAN'S argument, in net effect, is that when the Commission really comes to grips with the problem of including the roads in one of the great systems, one thing will lead to another and the eventual result will be that the Penn-Central merger - to which he does not otherwise object - will become contrary to the public interest. When the Commission reaches this point, it will either have to refrain from including the three roads in either the N & W or the Penn-Central systems, which would be contrary to its findings, or it will have to grit its teeth and go ahead even though inclusion of the three roads in one of the systems would make the Penn-Central merger contrary to the public interest. I agree that either of these would be most unfortunate. My difficulty stems from the fact that there is no basis for the forecast of catastrophe. With all respect, my Brother BRENNAN'S journey from the present to this horrifying future requires a trip through outer space which I cannot make, and in which I do not believe we should indulge. There should be more than rocketry to justify our nullification of action of this national importance which has been authorized by the agency with the heavy responsibility for repairing our deplorable national railroad network.MR. JUSTICE BRENNAN says that "[a]llegations are made" by the Department of Justice and numerous other parties that inclusion of the three roads in either of the major systems "might not be possible consistent with the public interest or upon equitable terms." Now the fact that allegations are made is interesting, but less than dispositive; so MR. JUSTICE BRENNAN, after pointing out that there seems to be general agreement that the three roads should be included in the N & W, says that "there is a significant possibility, given the present state of circumstances, that inclusion in N & W might be unattainable or attainable only at the price of rendering the Penn-Central merger against the public interest, and that, even if inclusion could be accomplished consistent with the public interest, it might be impossible to work out equitable terms."Now, a "significant possibility" is not, I think, a conventional basis for judicial nullification of an administrative order. See Illinois C. R. Co. v. Norfolk & W. R. Co., , and cases there cited. It is true, as MR. JUSTICE BRENNAN argues, that there are problems and difficulties about inclusion of the roads in one of the systems, largely stemming from the poor financial condition of two of the three roads. These difficulties themselves argue for prompt inclusion of the roads in one of the great systems, a result which the three roads' fierce struggle for the last ounce of flesh may paradoxically defeat.10 But judicial pessimism, if it is to lead to administrative nullification, should have a more substantial basis than is present here. There is, in fact, no basis here for assuming that the roads will not be included in the N & W; or that the terms and conditions will not be equitable; or that the result will make the Penn-Central merger contrary to the public interest - or that, if any of these happened at the Commission's hands, corrective measures could not be mandated by the courts.The N & W, as MR. JUSTICE BRENNAN recognizes, has "irrevocably agreed to include these three petitioners in their system upon terms ..., if necessary, prescribed by [the Commission], provided such inclusion is found to be consistent with the public interest." 327 I. C. C., at 529. There is no reason for us to doubt that the Commission will in fact complete the task of working out terms and conditions of inclusion. If deemed necessary, we could order that the District Court retain jurisdiction so that the courts could speedily accomplish the result if the Commission should fail.But MR. JUSTICE BRENNAN darkly argues that the pressure of the problem of including the three roads will result in creating a "virtual rail monopoly in some southeastern States." He attaches a map to prove it. This will come about, he says, because when the Commission really gets down to the inclusion of these three roads in the N & W, the financial burdens will irresistibly impel the Commission to allow the N & W and C & O to affiliate, with monopolistic effect, in order to bear the weight of the included roads. The net result, therefore, he argues, is "that Penn-Central will increase the likelihood of, and may actually cause, an affiliation of N & W and C & O." He points out that the Commission did not consider this possibility. That's true. But the remoteness of the consequence that MR. JUSTICE BRENNAN divulges is such that neither we nor the Commission can, in all reason, be required to consider it. I respectfully disagree with my Brother BRENNAN that "Only by considering this possibility could the ICC fulfill its obligation to consider all the relevant factors before approving the merger." I do not believe that we can require of the Commission the rich and resourceful imagination to foresee the consequence that the relatively minor problem presented by the three roads will precipitate a vast monopoly, nor, if the Commissioners were so gifted as to envisage such a result, could we expect a response from them as to the problem presented other than a solemn oath that they will not build a city to house a mouse. In any event, if they yielded virtue and judgment in response to the urgencies of these three roads, the courts could always overrule them.11 That the courts would not be timid, reluctant, or deferential to intervene in the Commission's decision is a proposition which today's decision establishes beyond dispute.I repeat: Given the point conceded by my Brother BRENNAN that the Commission has power to permit the merger to go forward while the problems incident to inclusion of these three roads in one of the great systems are being worked out, there is no basis for repudiating the exercise of that power in this case.It is not necessary to analyze MR. JUSTICE BRENNAN'S detailed attack upon the Commission's interim protective conditions for the three roads. These are being reconsidered by the Commission, and are hardly ripe for judicial review. The underlying question is, again, whether the Commission may allow the "merger to go forward while conditions ... are worked out." MR. JUSTICE BRENNAN contends that "the Act vests wide discretion in the agency" to do this, and I confess bafflement as to why this discretion is not broad enough to require us to tolerate the Commission's action here.The basic fact of the matter, I submit, is that this is not a case in which the Commission has refused or failed to consider, or to make findings or provide for effective measures with respect to a material aspect of a merger. It gave elaborate, meticulous consideration to the problem presented by the three roads. It made findings with respect to their needs which apparently evoked an enthusiastic response - perhaps excessively enthusiastic - in this Court. It worked out provisions for assuring the interim protection of the roads and their eventual destiny. It made clear, effective provision for accomplishing the result found necessary: that the three roads ultimately be included in one of the major systems and that meanwhile they receive traffic and financial protection and benefits. It did this by requiring advance consent and reserving jurisdiction. The integrity and adequacy of the process may be subjected to court review.I cannot escape the conclusion that the dimensions of this merger have induced a major departure from the established and sound principles governing judicial review of administrative judgments in complex economic situations. It is, of course, possible, perhaps probable, that the parties affected by this merger, including the three roads, aided by the shock of the Court's action herein, will find a way to avert the national mischief of aborting the Penn-Central merger and of avoiding the continuation of the deplorable condition of two of the three roads which will persist if the Penn-Central merger is not effectuated. But I think, with all respect, that the Court's decision in this case is wrong in principle and unfortunate in consequence. It is a reversion to the days of judicial negation of governmental action in the economic sphere. We should be conservative and restrained, I think, where all we can say is no. The problems of the administrative agency deserve more understanding and its efforts to find solutions are entitled to more respect than the Court has today shown. The courts may be the principal guardians of the liberties of the people. They are not the chief administrators of its economic destiny.[Footnote 1] 317 I. C. C. 261, sustained sub nom. Brotherhood of Maintenance of Way Employees v. United States, 221 F. Supp. 19 (D.C. E. D. Mich.), aff'd, per curiam, .[Footnote 2] 324 I. C. C. 1.[Footnote 3] Other communities aligned themselves with the City of Scranton in the District Court, but have either declined to seek review or, as in the case of the Township of Weehawken, have abandoned their appeal.[Footnote 4] Memorandum for the United States in Nos. 642, 680, 691, p. 21.[Footnote 5] He recommended that the Commission "authorize and direct" inclusion of the E-L and D & H, and "authorize" inclusion of the B & M. Norfolk and Western R. Co. and New York, C. & St. L. R. Co., Merger, Finance Docket No. 21510.[Footnote 6] The court below speculated that the ICC should finish its work on the matter during calendar 1967. 259 F. Supp., at 969, n. 4.[Footnote 7] The Commission did not, however, foreclose the applicants from seeking judicial review of any decision which might be made as to capital indemnification. 328 I. C. C., at 329.[Footnote 8] See, e. g., United States v. Rock Island Motor Transit Co., (to keep motor routes of railroad "auxiliary or supplemental"); New York Central Unification, 154 I. C. C. 489 (1929) (inclusion of short lines); Chicago & N. W. Ry. Co. Merger, 261 I. C. C. 672 (1946) (employee protective provisions).[Footnote 9] "[I]n the absence of a clear legal prescription, a reasonable procedural decision should withstand judicial interference." Jaffe, Judicial Control of Administrative Action 567 (1965).[Footnote 10] Judge Friendly referred to "the jockeying of these roads and of the three plaintiffs in the C & O, B & O, and N & W actions for price and position in respect of other mergers - which, despite all the words, is what we suspect these actions to be mostly about." 259 F. Supp., at 981.[Footnote 11] I do not intend to indicate any opinion as to the merits of a possible N & W-C & O affiliation. |
7 | In this suit by a seaman, under the Jones Act and for unseaworthiness under the general maritime law, to recover from a shipowner for personal injuries sustained while a member of the crew of its ship when an allegedly defective wrench with which he was working slipped off a nut and hit his toe, held: The evidence was sufficient to present a jury question, under the unseaworthiness claim, as to whether the wrench was a reasonably suitable appliance, and, under the Jones Act claim, as to the shipowner's alleged failure to exercise due care in furnishing a wrench which was not a reasonably suitable appliance; and the trial judge erred in directing a verdict for the shipowner. Pp. 325-332. 271 F.2d 194, reversed.Harvey Goldstein argued the cause for petitioner. With him on the brief was S. Eldridge Sampliner.Lucian Y. Ray argued the cause and filed a brief for respondent.MR. JUSTICE BRENNAN delivered the opinion of the Court.The petitioner asks damages for personal injuries he allegedly sustained in a shipboard accident while a crew member aboard the respondent's Great Lakes vessel, the tanker Orion. His complaint alleges respondent's liability both for negligence under the Jones Act, 46 U.S.C. 688, and for unseaworthiness under the general maritime law;1 a claim for maintenance and cure is also alleged. The parties settled the claim for maintenance and cure at the trial, which was before a jury in the District Court for the Northern District of Ohio. Judgment was entered for the respondent on the unseaworthiness and Jones Act claims upon a verdict directed by the trial judge on the ground of insufficiency of the evidence. The Court of Appeals for the Sixth Circuit affirmed. 271 F.2d 194. We granted certiorari, .Michalic claims that in a shipboard accident on December 28, 1955, a two-and-one-half-pound wrench dropped on his left great toe. Michalic was afflicted with Buerger's disease when he joined the Orion three months earlier as a fireman in the engine room. We are informed by the testimony of one of the medical witnesses that Buerger's disease "is a disease of unknown origin ... it produces a narrowing of the blood supply going to the foot through the arteries, and it runs a very foreseeable course; it is slowly progressive in most cases and leads to progressive loss of blood supply to the extremities involving usually the legs"; for one afflicted with the disease to drop "a hammer on his toe ... is a very serious thing and frequently leads to amputation... . Because the circulation is already impaired and the wound will not heal properly, and any appreciable trauma will frequently lead to gangrene."Michalic did not report the accident at the time but continued working until January 6, 1956, a week later, when the vessel was laid up for the winter. Meanwhile he treated the toe every night after work in hot water and Epsom salts. He was at his home from January 6 to March 15 and used hot boric acid soaks "practically every day." He was called back to the Orion on March 15. On April 1, 1956, he reported to the Orion's captain that "[m]y leg was so bad, so painful, I couldn't take it no more ... I want a hospital ticket." The captain gave him the ticket after filling out a report in which he stated that Michalic told him that on December 28, 1955, "While working with pumpman in pumproom man said he dropped a wrench on his foot and his toe has been sore ever since." This was the first notice respondent had of any accident.At the hospital in April, a diagnosis was made of "an infected left great toe nail and gangrene of the left great toe secondary to the Buerger's Disease." During the spring three amputations were performed on the left leg, first the great left toe, next the left leg below the knee and then part of the leg above the knee. Medical experts, three on behalf of the petitioner and one for the respondent, differed whether, assuming that the wrench dropped on Michalic's left great toe on December 28, there was a causal connection between that trauma and the amputations. This plainly presented a question for the jury's determination, Sentilles v. Inter-Caribbean Corp., , and we do not understand that the respondent contends otherwise.The basic dispute between the parties is as to the sufficiency of the proofs to justify the jury's finding with reason that respondent furnished Michalic with a wrench which was not reasonably fit for its intended use. Here a distinction should be noticed between the unseaworthiness and Jones Act claims in this regard. The vessel's duty to furnish seamen with tools reasonably fit for their intended use is absolute, Mahnich v. Southern S. S. Co., ; Seas Shipping Co. v. Sieracki, ; The Osceola, ; Cox v. Esso Shipping Co., 247 F.2d 629; and this duty is completely independent of the owner's duty under the Jones Act to exercise reasonable care. Mitchell v. Trawler Racer, Inc., . The differences are stated in Cox v. Esso Shipping Co., supra: "One is an absolute duty, the other is due care. Where ... the ultimate issue ... [is] seaworthiness of the gear ... . The owner has an absolute duty to furnish reasonably suitable appliances. If he does not, then no amount of due care or prudence excuses him, whether he knew, or could have known, of its deficiency at the outset or after use. In contrast, under the negligence concept, there is only a duty to use due care, i. e., reasonable prudence, to select and keep in order reasonably suitable appliances. Defects which would not have been known to a reasonably prudent person at the outset, or arose after use and which a reasonably prudent person ought not to have discovered would impose no liability." 247 F.2d, at 637. Thus the question under Michalic's unseaworthiness claim is the single one as to the sufficiency of the proofs to raise a jury question whether the wrench furnished Michalic was a reasonably suitable appliance for the task he was assigned. To support the Jones Act claim, however, the evidence must also be sufficient to raise a jury question whether the respondent failed to exercise due care in furnishing a wrench which was not a reasonably suitable appliance.The wrench dropped on Michalic's foot while he was using it to unscrew nuts from bolts on the casing of a centrifugal pump in the pumproom. He had been assigned this task by the pumpman after the first assistant engineer sent him from the engine room to the pumproom to help ready the pumps for the vessel's winter lay-up. There were about twenty-five 1 5/8" nuts tightly secured to the bolts on the casing. The pumpman gave him a 1 5/8" straight-end wrench weighing two and one-half pounds and ten to eleven inches long, and also a mallet. The pump was located alongside and some inches below a catwalk, and Michalic had to step down from the catwalk to reach the casing. His task required the gripping of each nut in the claw of the wrench and the hammering of the side of the wrench with the mallet to apply pressure to loosen it. Michalic had removed all but a few of the nuts when he "had hold of a nut" with the wrench and "I hit it [the wrench] with the mallet and it slipped off the nut and came down the side of the pump and hit my big toe... . Yes, she slipped off the nut on the pump and came down the side of the pump and smashed my big toe."Michalic contends that the proofs were sufficient to justify the jury in finding with reason that there was play in the claw of the wrench which prevented a tight grip on the nut, thus entitling him to the jury's determination of his unseaworthiness claim, and were also sufficient to justify the jury in finding with reason that the respondent negligently furnished him with a defective wrench, thus entitling him also to the jury's determination of his Jones Act claim. The evidence viewed in a light favorable to him was as follows: The wrench and other pumproom tools were kept in the pumproom toolbox and were used only when the vessel was being prepared for lay-up. The tools were four or five years old. Because of the danger of fire, the tools, including the wrench and mallet which Michalic used, were made of a special spark-proof alloy. The second mate, who had left the Orion on December 19,2 testified that the tools were bronze because "Bronze tools are for non-striking." It was the practice to inspect the pumproom tools and replace worn ones before their use at lay-up time, but the first assistant engineer who testified to the practice did not say this inspection was made in 1955; and the pumpman testified that "It could be" that no one looked at the toolbox for nine months before December 28. The second mate testified that the tools "had been very beaten and battered, perhaps there for some time." Michalic testified that he noticed when the pumpman gave him the wrench that it was an "old beat-up wrench ... all chewed up on the end." Michalic said that when he started work "the wrench was slipping off the nuts; it slipped off every one of them." He "had a hard time loosening them off." He protested to the pumpman that "This wrench keeps slipping off," and the pumpman answered "Never mind about that, do the job as best you can."The trial judge found the evidence to be insufficient to present a jury question whether the wrench was a reasonably suitable appliance, because "on the theory the grip is worn ... there is never any mention of the grip in the case ... ." The Court of Appeals took the same view, saying "There was no evidence that the open or jaw end of the wrench was in any way deficient ... [t]he fact that the wrench slipped is not evidence that its slipping was the consequence of some condition in the jaw or handle of the wrench." 271 F.2d, at 199. We think that both lower courts erred. True, there was no direct evidence of play in the jaw of the wrench, as in Jacob v. New York City, . But direct evidence of a fact is not required. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence. Rogers v. Missouri Pacific R. Co., , n. 17.3 The jury, on this record, with the inferences permissible from the respondent's own testimony that inspections were necessary to replace tools of this special alloy because of wear which impaired their effectiveness, could reasonably have found that the wrench repeatedly slipped from the nuts because the jaw of the wrench did not properly grip them. Plainly the jury, with reason, could infer that the colloquy between Michalic and the pumpman, and Michalic's testimony as to slipping, related to the function of the jaw of the wrench in gripping the nuts and that there was play in it which caused the wrench to slip off. Thus the proofs sufficed to raise questions for the jury's determination of both the unseaworthiness and Jones Act claims. "It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes ... ." Rogers v. Missouri Pacific R. Co., supra, p. 506.4 The Jones Act claim is double-barreled. Michalic adds a charge of negligent failure to provide him with a safe place to work to the charge of negligence in furnishing him with a defective wrench. However, the case was not tried, nor is it argued here, on the basis that the charge of negligence in failing to provide a safe place to work rests solely on evidence tending to show a cramped and poorly lighted working space, regardless of the suitability of the wrench. On the contrary, Michalic also makes the allegedly defective wrench the basis of this charge, arguing in effect that the described conditions under which he was required to do the work increased the hazard from the use of the defective wrench. Under that theory, the relevance of the testimony is only to the charge of furnishing a defective wrench and the causal connection between that act and his injury. Phrasing the claim as a failure to provide a safe place to work therefore adds nothing to Michalic's case, and he was not entitled to have that claim submitted to the jury as an additional ground of the respondent's alleged liability.The judgment of the Court of Appeals is reversed and the cause remanded to the District Court for a new trial. It is so ordered. For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., , MR. JUSTICE FRANKFURTER is of the view that the writ of certiorari was improvidently granted. |
7 | When petitioner was Acting Director of the Office of Rent Stabilization and respondents were subordinate officials of the same office, petitioner caused to be issued a press release announcing his intention to suspend respondents because of the part which they had played in formulating a plan for the utilization of certain agency funds. The plan had been severely criticized on the floor of Congress, and the congressional criticism had been widely reported in the press. Respondents sued petitioner for libel, alleging malice. Held: Petitioner's plea of absolute privilege in defense of the alleged libel must be sustained. Pp. 564-578. App. D.C. 176, 256 F.2d 890, reversed.For judgment of the Court and opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER, see pp. 564-576.For concurring opinion of MR. JUSTICE BLACK, see p. 576.For dissenting opinion of MR. CHIEF JUSTICE WARREN, joined by MR. JUSTICE DOUGLAS, see p. 578.For dissenting opinion of MR. JUSTICE BRENNAN, see p. 586.For dissenting opinion of MR. JUSTICE STEWART, see p. 592.Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade and Bernard Cedarbaum.Byron N. Scott argued the cause for respondents. With him on the brief was Richard A. Mehler.MR. JUSTICE HARLAN announced the judgment of the Court, and delivered an opinion, in which MR. JUSTICE FRANKFURTER, MR. JUSTICE CLARK, and MR. JUSTICE WHITTAKER join.We are called upon in this case to weigh in a particular context two considerations of high importance which now and again come into sharp conflict - on the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities.This is a libel suit, brought in the District Court of the District of Columbia by respondents, former employees of the Office of Rent Stabilization. The alleged libel was contained in a press release issued by the office on February 5, 1953, at the direction of petitioner, then its Acting Director.1 The circumstances which gave rise to the issuance of the release follow.In 1950 the statutory existence of the Office of Housing Expediter, the predecessor agency of the Office of Rent Stabilization, was about to expire. Respondent Madigan, then Deputy Director in charge of personnel and fiscal matters, and respondent Matteo, chief of the personnel branch, suggested to the Housing Expediter a plan designed to utilize some $2,600,000 of agency funds earmarked in the agency's appropriation for the fiscal year 1950 exclusively for terminal-leave payments. The effect of the plan would have been to obviate the possibility that the agency might have to make large terminal-leave payments during the next fiscal year out of general agency funds, should the life of the agency be extended by Congress. In essence, the mechanics of the plan were that agency employees would be discharged, paid accrued annual leave out of the $2,600,000 earmarked for terminal-leave payments, rehired immediately as temporary employees, and restored to permanent status should the agency's life in fact be extended.Petitioner, at the time General Manager of the agency, opposed respondents' plan on the ground that it violated the spirit of the Thomas Amendment, 64 Stat. 768,2 and expressed his opposition to the Housing Expediter. The Expediter decided against general adoption of the plan, but at respondent Matteo's request gave permission for its use in connection with approximately fifty employees, including both respondents, on a voluntary basis.3 Thereafter the life of the agency was in fact extended.Some two and a half years later, on January 28, 1953, the Office of Rent Stabilization received a letter from Senator John J. Williams of Delaware, inquiring about the terminal-leave payments made under the plan in 1950. Respondent Madigan drafted a reply to the letter, which he did not attempt to bring to the attention of petitioner, and then prepared a reply which he sent to petitioner's office for his signature as Acting Director of the agency. Petitioner was out of the office, and a secretary signed the submitted letter, which was then delivered by Madigan to Senator Williams on the morning of February 3, 1953.On February 4, 1953, Senator Williams delivered a speech on the floor of the Senate strongly criticizing the plan, stating that "to say the least it is an unjustifiable raid on the Federal Treasury, and heads of every agency in the Government who have condoned this practice should be called to task." The letter above referred to was ordered printed in the Congressional Record. Other Senators joined in the attack on the plan.4 Their comments were widely reported in the press on February 5, 1953, and petitioner, in his capacity as Acting Director of the agency, received a large number of inquiries from newspapers and other news media as to the agency's position on the matter.On that day petitioner served upon respondents letters expressing his intention to suspend them from duty, and at the same time ordered issuance by the office of the press release which is the subject of this litigation, and the text of which appears in the margin.5 Respondents sued, charging that the press release, in itself and as coupled with the contemporaneous news reports of senatorial reaction to the plan, defamed them to their injury, and alleging that its publication and terms had been actuated by malice on the part of petitioner. Petitioner defended, inter alia, on the ground that the issuance of the press release was protected by either a qualified or an absolute privilege. The trial court overruled these contentions, and instructed the jury to return a verdict for respondents if it found the release defamatory. The jury found for respondents.Petitioner appealed, raising only the issue of absolute privilege. The judgment of the trial court was affirmed by the Court of Appeals, which held that "in explaining his decision [to suspend respondents] to the general public [petitioner] ... went entirely outside his line of duty" and that thus the absolute privilege, assumed otherwise to be available, did not attach. App. D.C. 319, 244 F.2d 767. We granted certiorari, vacated the Court of Appeals' judgment, and remanded the case "with directions to pass upon petitioner's claim of a qualified privilege." . On remand the Court of Appeals held that the press release was protected by a qualified privilege, but that there was evidence from which a jury could reasonably conclude that petitioner had acted maliciously, or had spoken with lack of reasonable grounds for believing that his statement was true, and that either conclusion would defeat the qualified privilege. Accordingly it remanded the case to the District Court for retrial. App. D.C. 176, 256 F.2d 890. At this point petitioner again sought, and we again granted certiorari, , to determine whether in the circumstances of this case petitioner's claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint.The law of privilege as a defense by officers of government to civil damage suits for defamation and kindred torts has in large part been of judicial making, although the Constitution itself gives an absolute privilege to members of both Houses of Congress in respect to any speech, debate, vote, report, or action done in session.6 This Court early held that judges of courts of superior or general authority are absolutely privileged as respects civil suits to recover for actions taken by them in the exercise of their judicial functions, irrespective of the motives with which those acts are alleged to have been performed, Bradley v. Fisher, 13 Wall. 335, and that a like immunity extends to other officers of government whose duties are related to the judicial process. Yaselli v. Goff, 12 F.2d 396, aff'd per curiam, , involving a Special Assistant to the Attorney General.7 Nor has the privilege been confined to officers of the legislative and judicial branches of the Government and executive officers of the kind involved in Yaselli. In Spalding v. Vilas, , petitioner brought suit against the Postmaster General, alleging that the latter had maliciously circulated widely among postmasters, past and present, information which he knew to be false and which was intended to deceive the postmasters to the detriment of the plaintiff. This Court sustained a plea by the Postmaster General of absolute privilege, stating that (498-499):"In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. He may have legal authority to act, but he may have such large discretion in the premises that it will not always be his absolute duty to exercise the authority with which he is invested. But if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals."8 The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties - suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government. The matter has been admirably expressed by Judge Learned Hand: "It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been though in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation... . "The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him... ." Gregoire v. Biddle, 177 F.2d 579, 581. We do not think that the principle announced in Vilas can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts.9 The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.10 To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted - the relation of the act complained of to "matters committed by law to his control or supervision," Spalding v. Vilas, supra, at 498 - which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.Judged by these standards, we hold that petitioner's plea of absolute privilege in defense of the alleged libel published at his direction must be sustained. The question is a close one, but we cannot say that it was not an appropriate exercise of the discretion with which an executive officer of petitioner's rank is necessarily clothed to publish the press release here at issue in the circumstances disclosed by this record. Petitioner was the Acting Director of an important agency of government,11 and was clothed by redelegation with "all powers, duties, and functions conferred on the President by Title II of the Housing and Rent Act of 1947 ... ."12 The integrity of the internal operations of the agency which he headed, and thus his own integrity in his public capacity, had been directly and severely challenged in charges made on the floor of the Senate and given wide publicity; and without his knowledge correspondence which could reasonably be read as impliedly defending a position very different from that which he had from the beginning taken in the matter had been sent to a Senator over his signature and incorporated in the Congressional Record. The issuance of press releases was standard agency practice, as it has become with many governmental agencies in these times. We think that under these circumstances a publicly expressed statement of the position of the agency head, announcing personnel action which he planned to take in reference to the charges so widely disseminated to the public, was an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively. It would be an unduly restrictive view of the scope of the duties of a policy-making executive official to hold that a public statement of agency policy in respect to matters of wide public interest and concern is not action in the line of duty. That petitioner was not required by law or by direction of his superiors to speak out cannot be controlling in the case of an official of policy-making rank, for the same considerations which underlie the recognition of the privilege as to acts done in connection with a mandatory duty apply with equal force to discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority.13 The fact that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint, for as this Court has said of legislative privilege: "The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Tenney v. Brandhove, , 377. We are told that we should forbear from sanctioning any such rule of absolute privilege lest it open the door to wholesale oppression and abuses on the part of unscrupulous government officials. It is perhaps enough to say that fears of this sort have not been realized within the wide area of government where a judicially formulated absolute privilege of broad scope has long existed. It seems to us wholly chimerical to suggest that what hangs in the balance here is the maintenance of high standards of conduct among those in the public service. To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. And there are of course other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner. We think that we should not be deterred from establishing the rule which we announce today by any such remote forebodings. Reversed. |
9 | Petitioner Rush Prudential HMO, Inc., a health maintenance organization (HMO) that contracts to provide medical services for employee welfare benefits plans covered by the Employee Retirement Income Security Act of 1974 (ERISA), denied respondent Moran's request to have surgery by an unaffiliated specialist on the ground that the procedure was not medically necessary. Moran made a written demand for an independent medical review of her claim, as guaranteed by §4-10 of Illinois's HMO Act, which further provides that "[i]n the event that the reviewing physician determines the covered service to be medically necessary," the HMO "shall provide" the service. Rush refused her demand, and Moran sued in state court to compel compliance with the Act. That court ordered the review, which found the treatment necessary, but Rush again denied the claim. While the suit was pending, Moran had the surgery and amended her complaint to seek reimbursement. Rush removed the case to federal court, arguing that the amended complaint stated a claim for ERISA benefits. The District Court treated Moran's claim as a suit under ERISA and denied it on the ground that ERISA preempted §4-10. The Seventh Circuit reversed. It found Moran's reimbursement claim preempted by ERISA so as to place the case in federal court, but it concluded that the state Act was not preempted as a state law that "relates to" an employee benefit plan, 29 U. S. C. §1144(a), because it also "regulates insurance" under ERISA's saving clause, §1144(b)(2)(a).Held: ERISA does not preempt the Illinois HMO Act. Pp. 6-31. (a) In deciding whether a law regulates insurance, this Court starts with a commonsense view of the matter, Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 740, which requires a law to "be specifically directed toward" the insurance industry, Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 50. It then tests the results of the commonsense enquiry by employing the three factors used to point to insurance laws spared from federal preemption under the McCarran-Ferguson Act. Pp. 6-18. (1) The Illinois HMO Act is directed toward the insurance industry, and thus is an insurance regulation under a commonsense view. Although an HMO provides healthcare in addition to insurance, nothing in the saving clause requires an either-or choice between healthcare and insurance. Congress recognized, the year before passing ERISA, that HMOs are risk-bearing organizations subject to state insurance regulation. That conception has not changed in the intervening years. States have been adopting their own HMO enabling Acts, and at least 40, including Illinois, regulate HMOs primarily through state insurance departments. Rush cannot submerge HMOs' insurance features beneath an exclusive characterization of HMOs as health care providers. And the argument of Rush and its amici that §4-10 sweeps beyond the insurance industry, capturing organizations that provide no insurance and regulating noninsurance activities of HMOs that do, is based on unsound assumptions. Pp. 9-16. (2) The McCarran-Ferguson factors confirm this conclusion. A state law does not have to satisfy all three factors to survive preemption, and §4-10 clearly satisfies two. The independent review requirement satisfies the factor that a provision regulate "an integral part of the policy relationship between the insurer and the insured." Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 129. Illinois adds an extra review layer when there is an internal disagreement about an HMO's denial of coverage, and the reviewer both applies a medical care standard and construes policy terms. Thus, the review affects a policy relationship by translating the relationship under the HMO agreement into concrete terms of specific obligation or freedom from duty. The factor that the law be aimed at a practice "limited to entities within the insurance industry," ibid., is satisfied for many of the same reasons that the law passes the commonsense test: It regulates application of HMO contracts and provides for review of claim denials; once it is established that HMO contracts are contracts for insurance, it is clear that §4-10 does not apply to entities outside the insurance industry. Pp. 16-18. (b) This Court rejects Rush's contention that, even though ERISA's saving clause ostensibly forecloses preemption, congressional intent to the contrary is so clear that it overrides the statutory provision. Pp. 18-30. (1) The Court has recognized an overpowering federal policy of exclusivity in ERISA's civil enforcement provisions located at 29 U. S. C. §1132(a); and it has anticipated that in a conflict between congressional polices of exclusively federal remedies and the States' regulation of insurance, the state regulation would lose out if it allows remedies that Congress rejected in ERISA, Pilot Life, 473 U. S. 134, and Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, all involved an additional claim or remedy that ERISA did not authorize. In contrast, the review here may settle a benefit claim's fate, but the state statute does not enlarge the claim beyond the benefits available in any §1132(a) action. And although the reviewer's determination would presumably replace the HMO's as to what is medically necessary, the ultimate relief available would still be what ERISA authorizes in a §1132(a) suit for benefits. This case therefore resembles the claims-procedure rule that the Court sustained in UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358. Section 4-10's procedure does not fall within Pilot Life's categorical preemption. Pp. 20-24. (2) Nor does §4-10's procedural imposition interfere unreasonably with Congress's intention to provide a uniform federal regime of "rights and obligations" under ERISA. Although this Court has recognized a limited exception from the saving clause for alternative causes of action and alternative remedies, further limits on insurance regulation preserved by ERISA are unlikely to deserve recognition. A State might provide for a type of review that would so resemble an adjudication as to fall within Pilot Life's categorical bar, but that is not the case here. Section 4-10 is significantly different from common arbitration. The independent reviewer has no free-ranging power to construe contract terms, but instead confines review to the single phrase "medically necessary." That reviewer must be a physician with credentials similar to those of the primary care physician and is expected to exercise independent medical judgment, based on medical records submitted by the parties, in deciding what medical necessity requires. This process does not resemble either contract interpretation or evidentiary litigation before a neutral arbiter as much as it looks like the practice of obtaining a second opinion. In addition, §4-10 does not clash with any deferential standard for reviewing benefit denials in judicial proceedings. ERISA itself says nothing about a standard. It simply requires plans to afford a beneficiary some mechanism for internal review of a benefit denial and provides a right to a subsequent judicial forum for a claim to recover benefits. Although certain "discretionary" plan interpretations may receive deference from a reviewing court, see Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 115, nothing in ERISA requires that medical necessity decisions be "discretionary" in the first place. Pp. 24-30.230 F. 3d 959, affirmed. Souter, J., delivered the opinion of the Court, in which Stevens, O'Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined.RUSH PRUDENTIAL HMO, INC., PETITIONER v. DEBRA C. MORAN et al.on writ of certiorari to the united states court of appeals for the seventh circuit[June 20, 2002] Justice Souter delivered the opinion of the Court. Section 4-10 of Illinois's Health Maintenance Organization Act, 215 Ill. Comp. Stat., ch. 125, §4-10 (2000), provides recipients of health coverage by such organizations with a right to independent medical review of certain denials of benefits. The issue in this case is whether the statute, as applied to health benefits provided by a health maintenance organization under contract with an employee welfare benefit plan, is preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. §1001 et seq. We hold it is not.I Petitioner, Rush Prudential HMO, Inc., is a health maintenance organization (HMO) that contracts to provide medical services for employee welfare benefit plans covered by ERISA. Respondent Debra Moran is a beneficiary under one such plan, sponsored by her husband's employer. Rush's "Certificate of Group Coverage," issued to employees who participate in employer-sponsored plans, promises that Rush will provide them with "medically necessary" services. The terms of the certificate give Rush the "broadest possible discretion" to determine whether a medical service claimed by a beneficiary is covered under the certificate. The certificate specifies that a service is covered as "medically necessary" if Rush finds: "(a) [The service] is furnished or authorized by a Participating Doctor for the diagnosis or the treatment of a Sickness or Injury or for the maintenance of a person's good health. "(b) The prevailing opinion within the appropriate specialty of the United States medical profession is that [the service] is safe and effective for its intended use, and that its omission would adversely affect the person's medical condition. "(c) It is furnished by a provider with appropriate training, experience, staff and facilities to furnish that particular service or supply." Record, Plaintiff's Exh. A, p. 21.As the certificate explains, Rush contracts with physicians "to arrange for or provide services and supplies for medical care and treatment" of covered persons. Each covered person selects a primary care physician from those under contract to Rush, while Rush will pay for medical services by an unaffiliated physician only if the services have been "authorized" both by the primary care physician and Rush's medical director. See id., at 11, 16. In 1996, when Moran began to have pain and numbness in her right shoulder, Dr. Arthur LaMarre, her primary care physician, unsuccessfully administered "conservative" treatments such as physiotherapy. In October 1997, Dr. LaMarre recommended that Rush approve surgery by an unaffiliated specialist, Dr. Julia Terzis, who had developed an unconventional treatment for Moran's condition. Although Dr. LaMarre said that Moran would be "best served" by that procedure, Rush denied the request and, after Moran's internal appeals, affirmed the denial on the ground that the procedure was not "medically necessary." 230 F. 3d 959, 963 (CA7 2000). Rush instead proposed that Moran undergo standard surgery, performed by a physician affiliated with Rush. In January 1998, Moran made a written demand for an independent medical review of her claim, as guaranteed by §4-10 of Illinois's HMO Act, 215 Ill. Comp. Stat., ch. 125, §4-10 et seq. (2000), which provides:"Each Health Maintenance Organization shall provide a mechanism for the timely review by a physician holding the same class of license as the primary care physician, who is unaffiliated with the Health Maintenance Organization, jointly selected by the patient ... , primary care physician and the Health Maintenance Organization in the event of a dispute between the primary care physician and the Health Maintenance Organization regarding the medical necessity of a covered service proposed by a primary care physician. In the event that the reviewing physician determines the covered service to be medically necessary, the Health Maintenance Organization shall provide the covered service."The Act defines a "Health Maintenance Organization" as"any organization formed under the laws of this or another state to provide or arrange for one or more health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers." Ch. 125, §1-2.1When Rush failed to provide the independent review, Moran sued in an Illinois state court to compel compliance with the state Act. Rush removed the suit to Federal District Court, arguing that the cause of action was "completely preempted" under ERISA. 230 F. 3d, at 964. While the suit was pending, Moran had surgery by Dr. Terzis at her own expense and submitted a $94,841.27 reimbursement claim to Rush. Rush treated the claim as a renewed request for benefits and began a new inquiry to determine coverage. The three doctors consulted by Rush said the surgery had been medically unnecessary. Meanwhile, the federal court remanded the case back to state court on Moran's motion, concluding that because Moran's request for independent review under §4-10 would not require interpretation of the terms of an ERISA plan, the claim was not "completely preempted" so as to permit removal under 28 U. S. C. §1441.2 230 F. 3d, at 964. The state court enforced the state statute and ordered Rush to submit to review by an independent physician. The doctor selected was a reconstructive surgeon at Johns Hopkins Medical Center, Dr. A. Lee Dellon. Dr. Dellon decided that Dr. Terzis's treatment had been medically necessary, based on the definition of medical necessity in Rush's Certificate of Group Coverage, as well as his own medical judgment. Rush's medical director, however, refused to concede that the surgery had been medically necessary, and denied Moran's claim in January 1999. Moran amended her complaint in state court to seek reimbursement for the surgery as "medically necessary" under Illinois's HMO Act, and Rush again removed to federal court, arguing that Moran's amended complaint stated a claim for ERISA benefits and was thus completely preempted by ERISA's civil enforcement provisions, 29 U. S. C. §1132(a), as construed by this Court in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987). The District Court treated Moran's claim as a suit under ERISA, and denied the claim on the ground that ERISA preempted Illinois's independent review statute.3 The Court of Appeals for the Seventh Circuit reversed. 230 F. 3d 959 (2000). Although it found Moran's state-law reimbursement claim completely preempted by ERISA so as to place the case in federal court, the Seventh Circuit did not agree that the substantive provisions of Illinois's HMO Act were so preempted. The court noted that although ERISA broadly preempts any state laws that "relate to" employee benefit plans, 29 U. S. C. §1144(a), state laws that "regulat[e] insurance" are saved from preemption, §1144(b)(2)(A). The court held that the Illinois HMO Act was such a law, the independent review requirement being little different from a state-mandated contractual term of the sort this Court had held to survive ERISA preemption. See 230 F. 3d, at 972 (citing UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358, 375-376 (1999)). The Seventh Circuit rejected the contention that Illinois's independent review requirement constituted a forbidden "alternative remedy" under this Court's holding in Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (1987), and emphasized that §4-10 does not authorize any particular form of relief in state courts; rather, with respect to any ERISA health plan, the judgment of the independent reviewer is only enforceable in an action brought under ERISA's civil enforcement scheme, 29 U. S. C. §1132(a). 230 F. 3d, at 971. Because the decision of the Court of Appeals conflicted with the Fifth Circuit's treatment of a similar provision of Texas law in Corporate Health Ins., Inc. v. Texas Dept. of Ins., 215 F. 3d 526 (2000), we granted certiorari, 533 U. S. 948 (2001). We now affirm.II To "safeguar[d] ... the establishment, operation, and administration" of employee benefit plans, ERISA sets "minimum standards ... assuring the equitable character of such plans and their financial soundness," 29 U. S. C. §1001(a), and contains an express preemption provision that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan ... ." §1144(a). A saving clause then reclaims a substantial amount of ground with its provision that "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." §1144(b)(2)(A). The "unhelpful" drafting of these antiphonal clauses, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 656 (1995), occupies a substantial share of this Court's time, see, e.g., Egelhoff v. Egelhoff, 532 U. S. 141 (2001); UNUM Life Ins. Co. of America v. Ward, supra; California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316 (1997); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). In trying to extrapolate congressional intent in a case like this, when congressional language seems simultaneously to preempt everything and hardly anything, we "have no choice" but to temper the assumption that " `the ordinary meaning ... accurately expresses the legislative purpose,' " id., at 740 (quoting Park 'N Fly v. Dollar Park and Fly, Inc., 469 U. S. 189, 194 (1985)), with the qualification " `that the historic police powers of the States were not [meant] to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' " Travelers, supra, at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)). It is beyond serious dispute that under existing precedent §4-10 of the Illinois HMO Act "relates to" employee benefit plans within the meaning of §1144(a). The state law bears "indirectly but substantially on all insured benefit plans," Metropolitan Life, 471 U. S., at 739, by requiring them to submit to an extra layer of review for certain benefit denials if they purchase medical coverage from any of the common types of health care organizations covered by the state law's definition of HMO. As a law that "relates to" ERISA plans under §1144(a), §4-10 is saved from preemption only if it also "regulates insurance" under §1144(b)(2)(A). Rush insists that the Act is not such a law.A In Metropolitan Life, we said that in deciding whether a law "regulates insurance" under ERISA's saving clause, we start with a "common-sense view of the matter," 440 U. S. 205, 211 (1979) (explaining that the "business of insurance" is not coextensive with the "business of insurers").1 The common-sense enquiry focuses on "primary elements of an insurance contract[, which] are the spreading and underwriting of a policyholder's risk." Id., at 211. The Illinois statute addresses these elements by defining "health maintenance organization" by reference to the risk that it bears. See 215 Ill. Comp. Stat., ch. 125, §1-2(9) (2000) (an HMO "provide[s] or arrange[s] for ... health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers"). Rush contends that seeing an HMO as an insurer distorts the nature of an HMO, which is, after all, a health care provider, too. This, Rush argues, should determine its characterization, with the consequence that regulation of an HMO is not insurance regulation within the meaning of ERISA. The answer to Rush is, of course, that an HMO is both: it provides health care, and it does so as an insurer. Nothing in the saving clause requires an either-or choice between health care and insurance in deciding a preemption question, and as long as providing insurance fairly accounts for the application of state law, the saving clause may apply. There is no serious question about that here, for it would ignore the whole purpose of the HMO-style of organization to conceive of HMOs (even in the traditional sense, see n. 1, supra) without their insurance element. "The defining feature of an HMO is receipt of a fixed fee for each patient enrolled under the terms of a contract to provide specified health care if needed." Pegram v. Herdrich, 530 U. S. 211, 218 (2000). "The HMO thus assumes the financial risk of providing the benefits promised: if a participant never gets sick, the HMO keeps the money regardless, and if a participant becomes expensively ill, the HMO is responsible for the treatment ... ." Id., at 218-219. The HMO design goes beyond the simple truism that all contracts are, in some sense, insurance against future fluctuations in price, R. Posner, Economic Analysis of Law 104 (4th ed. 1992), because HMOs actually underwrite and spread risk among their participants, see, e.g., R. Shouldice, Introduction to Managed Care 450-462 (1991), a feature distinctive to insurance, see, e.g., SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S. 65, 73 (1959) (underwriting of risk is an "earmark of insurance as it has commonly been conceived of in popular understanding and usage"); Royal Drug, supra, at 215, n. 12 ("[U]nless there is some element of spreading risk more widely, there is no underwriting of risk"). So Congress has understood from the start, when the phrase "Health Maintenance Organization" was established and defined in the HMO Act of 1973. The Act was intended to encourage the development of HMOs as a new form of health care delivery system, see S. Rep. No. 93-129, pp. 7-9 (1973), and when Congress set the standards that the new health delivery organizations would have to meet to get certain federal benefits, the terms included requirements that the organizations bear and manage risk. See, e.g., Health Maintenance Organization Act of 1973, §1301(c), 87 Stat. 916, as amended, 42 U. S. C. §300e(c) (1994 ed.); S. Rep. No. 93-129, at 14 (explaining that HMOs necessarily bear some of the risk of providing service, and requiring that a qualifying HMO "assum[e] direct financial responsibility, without benefit of reinsurance, for care ... in excess of the first five thousand dollars per enrollee per year"). The Senate Committee Report explained that federally qualified HMOs would be required to provide "a basic package of benefits, consistent with existing health insurance patterns," id., at 10, and the very text of the Act assumed that state insurance laws would apply to HMOs; it provided that to the extent state insurance capitalization and reserve requirements were too stringent to permit the formation of HMOs, "qualified" HMOs would be exempt from such limiting regulation. See §1311, 42 U. S. C. §300e-10. This congressional understanding that it was promoting a novel form of insurance was made explicit in the Senate Report's reference to the practices of "health insurers to charge premium rates based upon the actual claims experience of a particular group of subscribers," thus "raising costs and diminishing the availability of health insurance for those suffering from costly illnesses," S. Rep. No. 93-129, at 29-30. The federal Act responded to this insurance practice by requiring qualifying HMOs to adopt uniform capitation rates, see §1301(b), 42 U. S. C. §300e(b), and it was because of that mandate "pos[ing] substantial competitive problems to newly emerging HMOs," S. Rep. No. 93-129, at 30, that Congress authorized funding subsidies, see §1304, 42 U. S. C. §300e-4. The Senate explanation left no doubt that it viewed an HMO as an insurer; the subsidy was justified because "the same stringent requirements do not apply to other indemnity or service benefits insurance plans." S. Rep. No. 93-129, at 30. In other words, one year before it passed ERISA, Congress itself defined HMOs in part by reference to risk, set minimum standards for managing the risk, showed awareness that States regulated HMOs as insurers, and compared HMOs to "indemnity or service benefits insurance plans." This conception has not changed in the intervening years. Since passage of the federal Act, States have been adopting their own HMO enabling Acts, and today, at least 40 of them, including Illinois, regulate HMOs primarily through the States' insurance departments, see Aspen Health Law and Compliance Center, Managed Care Law Manual 31-32 (Supp. 6, Nov. 1997), although they may be treated differently from traditional insurers, owing to their additional role as health care providers,5 see, e.g., Alaska Ins. Code §21.86.010 (2000) (health department reviews HMO before insurance commissioner grants a certificate of authority); Ohio Rev. Code Ann. §1742.21 (West 1994) (health department may inspect HMO). Finally, this view shared by Congress and the States has passed into common understanding. HMOs (broadly defined) have "grown explosively in the past decade and [are] now the dominant form of health plan coverage for privately insured individuals." Gold & Hurley, The Role of Managed Care "Products" in Managed Care "Plans," in Contemporary Managed Care 47 (M. Gold ed. 1998). While the original form of the HMO was a single corporation employing its own physicians, the 1980s saw a variety of other types of structures develop even as traditional insurers altered their own plans by adopting HMO-like cost-control measures. See Weiner & de Lissovoy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. of Health Politics, Policy and Law 75, 83 (Spring 1993). The dominant feature is the combination of insurer and provider, see Gold & Hurley, supra, at 47, and "an observer may be hard pressed to uncover the differences among products that bill themselves as HMOs, [preferred provider organizations], or managed care overlays to health insurance." Managed Care Law Manual, supra, at 1. Thus, virtually all commentators on the American health care system describe HMOs as a combination of insurer and provider, and observe that in recent years, traditional "indemnity" insurance has fallen out of favor. See, e.g., Weiner & de Lissovoy, supra, at 77 ("A common characteristic of the new managed care plans was the degree to which the roles of insurer and provider became integrated"); Gold, Understanding the Roots: Health Maintenance Organizations in Historical Context, in Contemporary Managed Care, supra, at 7, 8, 13; Managed Care Law Manual, supra, at 1; R. Rosenblatt, S. Law, & S. Rosenbaum, Law and the American Health Care System 552 (1997); Shouldice, Introduction to Managed Care, at 13, 20. Rush cannot checkmate common sense by trying to submerge HMOs' insurance features beneath an exclusive characterization of HMOs as providers of health care.2 On a second tack, Rush and its amici dispute that §4-10 is aimed specifically at the insurance industry. They say the law sweeps too broadly with definitions capturing organizations that provide no insurance, and by regulating noninsurance activities of HMOs that do. Rush points out that Illinois law defines HMOs to include organizations that cause the risk of health care delivery to be borne by the organization itself, or by "its providers." 215 Ill. Comp. Stat., ch. 125, §1-2(9) (2000). In Rush's view, the reference to "its providers" suggests that an organization may be an HMO under state law (and subject to §4-10) even if it does not bear risk itself, either because it has "devolve[d]" the risk of health care delivery onto others, or because it has contracted only to provide "administrative" or other services for self-funded plans. Brief for Petitioner 38. These arguments, however, are built on unsound assumptions. Rush's first contention assumes that an HMO is no longer an insurer when it arranges to limit its exposure, as when an HMO arranges for capitated contracts to compensate its affiliated physicians with a set fee for each HMO patient regardless of the treatment provided. Under such an arrangement, Rush claims, the risk is not borne by the HMO at all. In a similar vein, Rush points out that HMOs may contract with third-party insurers to protect themselves against large claims. The problem with Rush's argument is simply that a reinsurance contract does not take the primary insurer out of the insurance business, cf. Hartford Fire Ins. Co. v. California, 509 U. S. 764 (1993) (applying McCarran-Ferguson to a dispute involving primary insurers and reinsurers); id., at 772-773 ("[P]rimary insurers ... usually purchase insurance to cover a portion of the risk they assume from the consumer"), and capitation contracts do not relieve the HMO of its obligations to the beneficiary. The HMO is still bound to provide medical care to its members, and this is so regardless of the ability of physicians or third-party insurers to honor their contracts with the HMO. Nor do we see anything standing in the way of applying the saving clause if we assume that the general state definition of HMO would include a contractor that provides only administrative services for a self-funded plan.6 Rush points out that the general definition of HMO under Illinois law includes not only organizations that "provide" health care plans, but those that "arrange for" them to be provided, so long as "any part of the risk of health care delivery" rests upon "the organization or its providers." 215 Ill. Comp. Stat., ch. 125, §1-2(9) (2000). See Brief for Petitioner 38. Rush hypothesizes a sort of medical matchmaker, bringing together ERISA plans and medical care providers; even if the latter bear all the risks, the matchmaker would be an HMO under the Illinois definition. Rush would conclude from this that §4-10 covers noninsurers, and so is not directed specifically to the insurance industry. Ergo, ERISA's saving clause would not apply. It is far from clear, though, that the terms of §4-10 would even theoretically apply to the matchmaker, for the requirement that the HMO "provide" the covered service if the independent reviewer finds it medically necessary seems to assume that the HMO in question is a provider, not the mere arranger mentioned in the general definition of an HMO. Even on the most generous reading of Rush's argument, however, it boils down to the bare possibility (not the likelihood) of some overbreadth in the application of §4-10 beyond orthodox HMOs, and there is no reason to think Congress would have meant such minimal application to noninsurers to remove a state law entirely from the category of insurance regulation saved from preemption. In sum, prior to ERISA's passage, Congress demonstrated an awareness of HMOs as risk-bearing organizations subject to state insurance regulation, the state Act defines HMOs by reference to risk bearing, HMOs have taken over much business formerly performed by traditional indemnity insurers, and they are almost universally regulated as insurers under state law. That HMOs are not traditional "indemnity" insurers is no matter; "we would not undertake to freeze the concepts of `insurance' ... into the mold they fitted when these Federal Acts were passed." SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S., at 71. Thus, the Illinois HMO Act is a law "directed toward" the insurance industry, and an "insurance regulation" under a "commonsense" view.B The McCarran-Ferguson factors confirm our conclusion. A law regulating insurance for McCarran-Ferguson purposes targets practices or provisions that "ha[ve] the effect of transferring or spreading a policyholder's risk; ... [that are] an integral part of the policy relationship between the insurer and the insured; and [are] limited to entities within the insurance industry." Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 129 (1982). Because the factors are guideposts, a state law is not required to satisfy all three McCarran-Ferguson criteria to survive preemption, see UNUM Life Ins. Co. v. Ward, 526 U. S., at 373, and so we follow our precedent and leave open whether the review mandated here may be described as going to a practice that "spread[s] a policyholder's risk." For in any event, the second and third factors are clearly satisfied by §4-10. It is obvious enough that the independent review requirement regulates "an integral part of the policy relationship between the insurer and the insured." Illinois adds an extra layer of review when there is internal disagreement about an HMO's denial of coverage. The reviewer applies both a standard of medical care (medical necessity) and characteristically, as in this case, construes policy terms. Cf. Pegram v. Herdrich, 393 U. S. 453, 460 (1969). Rush says otherwise, citing Union Labor Life Ins. Co. v. Pireno, supra, and insisting that that case holds external review of coverage decisions to be outside the "policy relationship." But Rush misreads Pireno. We held there that an insurer's use of a "peer review" committee to gauge the necessity of particular treatments was not a practice integral to the policy relationship for the purposes of McCarran-Ferguson. 458 U. S., at 131-132. We emphasized, however, that the insurer's resort to peer review was simply the insurer's unilateral choice to seek advice if and when it cared to do so. The policy said nothing on the matter. The insurer's contract for advice from a third party was no concern of the insured, who was not bound by the peer review committee's recommendation any more, for that matter, than the insurer was. Thus it was not too much of an exaggeration to conclude that the practice was "a matter of indifference to the policyholder," id., at 132. Section 4-10, by contrast, is different on all counts, providing as it does a legal right to the insured, enforceable against the HMO, to obtain an authoritative determination of the HMO's medical obligations. The final factor, that the law be aimed at a "practice ... limited to entities within the insurance industry," id., at 129, is satisfied for many of the same reasons that the law passes the commonsense test. The law regulates application of HMO contracts and provides for review of claim denials; once it is established that HMO contracts are, in fact, contracts for insurance (and not merely contracts for medical care), it is clear that §4-10 does not apply to entities outside the insurance industry (although it does not, of course, apply to all entities within it). Even if we accepted Rush's contention, rejected already, that the law regulates HMOs even when they act as pure administrators, we would still find the third factor satisfied. That factor requires the targets of the law to be limited to entities within the insurance industry, and even a matchmaking HMO would fall within the insurance industry. But the implausibility of Rush's hypothesis that the pure administrator would be bound by §4-10 obviates any need to say more under this third factor. Cf. Barnett Bank of Marion Cty, N. A. v. Nelson, 517 U. S. 25, 39 (1996) (holding that a federal statute permitting banks to act as agents of insurance companies, although not insurers themselves, was a statute regulating the "business of insurance" for McCarran-Ferguson purposes).III Given that §4-10 regulates insurance, ERISA's mandate that "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance," 29 U. S. C. §1144(b)(2)(A), ostensibly forecloses preemption. See Metropolitan Life, 524 U. S. 214, 227 (1998) (AT&T) (clause in Communications Act of 1934 purporting to save "the remedies now existing at common law or by statute," 47 U. S. C. §414 (1994 ed.), defeated by overriding policy of the filed-rate doctrine); Adams Express Co. v. Croninger, 226 U. S. 491, 507 (1913) (saving clause will not sanction state laws that would nullify policy expressed in federal statute; "the act cannot be said to destroy itself" (internal quotation marks omitted)). In ERISA law, we have recognized one example of this sort of overpowering federal policy in the civil enforcement provisions, 29 U. S. C. §1132(a), authorizing civil actions for six specific types of relief.7 In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), we said those provisions amounted to an "interlocking, interrelated, and interdependent remedial scheme," id., at 146, which Pilot Life described as "represent[ing] a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," 481 U. S., at 54. So, we have held, the civil enforcement provisions are of such extraordinarily preemptive power that they override even the "well-pleaded complaint" rule for establishing the conditions under which a cause of action may be removed to a federal forum. Metropolitan Life Ins. Co. v. Taylor, 481 U. S., at 63-64.A Although we have yet to encounter a forced choice between the congressional policies of exclusively federal remedies and the "reservation of the business of insurance to the States," Metropolitan Life, 471 U. S., at 744, n. 21, we have anticipated such a conflict, with the state insurance regulation losing out if it allows plan participants "to obtain remedies ... that Congress rejected in ERISA," Pilot Life, supra, at 54. In Pilot Life, an ERISA plan participant who had been denied benefits sued in a state court on state tort and contract claims. He sought not merely damages for breach of contract, but also damages for emotional distress and punitive damages, both of which we had held unavailable under relevant ERISA provisions. Russell, supra, at 148. We not only rejected the notion that these common-law contract claims "regulat[ed] insurance," Pilot Life, 481 U. S., at 50-51, but went on to say that, regardless, Congress intended a "federal common law of rights and obligations" to develop under ERISA, id., at 56, without embellishment by independent state remedies. As in AT&T, we said the saving clause had to stop short of subverting congressional intent, clearly expressed "through the structure and legislative history[,] that the federal remedy ... displace state causes of action." 481 U. S., at 57.8 Rush says that the day has come to turn dictum into holding by declaring that the state insurance regulation, §4-10, is preempted for creating just the kind of "alternative remedy" we disparaged in Pilot Life. As Rush sees it, the independent review procedure is a form of binding arbitration that allows an ERISA beneficiary to submit claims to a new decisionmaker to examine Rush's determination de novo, supplanting judicial review under the "arbitrary and capricious" standard ordinarily applied when discretionary plan interpretations are challenged. Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101, 110-112 (1989). Rush says that the beneficiary's option falls within Pilot Life's notion of a remedy that "supplement[s] or supplant[s]" the remedies available under ERISA. 481 U. S., at 56. We think, however, that Rush overstates the rule expressed in Pilot Life. The enquiry into state processes alleged to "supplemen[t] or supplan[t]" the federal scheme by allowing beneficiaries "to obtain remedies under state law that Congress rejected in ERISA," id., at 54, has, up to now, been far more straightforward than it is here. The first case touching on the point did not involve preemption at all; it arose from an ERISA beneficiary's reliance on ERISA's own enforcement scheme to claim a private right of action for types of damages beyond those expressly provided. Russell, 473 U. S., at 145. We concluded that Congress had not intended causes of action under ERISA itself beyond those specified in §1132(a). Id., at 148. Two years later we determined in Metropolitan Life Ins. Co. v. Taylor, supra, that Congress had so completely preempted the field of benefits law that an ostensibly state cause of action for benefits was necessarily a "creature of federal law" removable to federal court. Id., at 64 (internal quotation marks omitted). Russell and Taylor naturally led to the holding in Pilot Life that ERISA would not tolerate a diversity action seeking monetary damages for breach generally and for consequential emotional distress, neither of which Congress had authorized in §1132(a). These monetary awards were claimed as remedies to be provided at the ultimate step of plan enforcement, and even if they could have been characterized as products of "insurance regulation," they would have significantly expanded the potential scope of ultimate liability imposed upon employers by the ERISA scheme. Since Pilot Life, we have found only one other state law to "conflict" with §1132(a) in providing a prohibited alternative remedy. In Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 (1990), we had no trouble finding that Texas's tort of wrongful discharge, turning on an employer's motivation to avoid paying pension benefits, conflicted with ERISA enforcement; while state law duplicated the elements of a claim available under ERISA, it converted the remedy from an equitable one under §1132(a)(3) (available exclusively in federal district courts) into a legal one for money damages (available in a state tribunal). Thus, Ingersoll-Rand fit within the category of state laws Pilot Life had held to be incompatible with ERISA's enforcement scheme; the law provided a form of ultimate relief in a judicial forum that added to the judicial remedies provided by ERISA. Any such provision patently violates ERISA's policy of inducing employers to offer benefits by assuring a predictable set of liabilities, under uniform standards of primary conduct and a uniform regime of ultimate remedial orders and awards when a violation has occurred. See Pilot Life, supra, at 56 (" `The uniformity of decision ... will help administrators ... predict the legality of proposed actions without the necessity of reference to varying state laws.' " (quoting H. R. Rep. No. 93-533, p. 12 (1973))); 481 U. S., at 56 ("The expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop ... would make little sense if the remedies available to ERISA participants and beneficiaries under [§1132(a)] could be supplemented or supplanted by varying state laws"). But this case addresses a state regulatory scheme that provides no new cause of action under state law and authorizes no new form of ultimate relief. While independent review under §4-10 may well settle the fate of a benefit claim under a particular contract, the state statute does not enlarge the claim beyond the benefits available in any action brought under §1132(a). And although the reviewer's determination would presumably replace that of the HMO as to what is "medically necessary" under this contract,9 the relief ultimately available would still be what ERISA authorizes in a suit for benefits under §1132(a).10 This case therefore does not involve the sort of additional claim or remedy exemplified in Pilot Life, Russell, and Ingersoll-Rand, but instead bears a resemblance to the claims-procedure rule that we sustained in UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 (1999), holding that a state law barring enforcement of a policy's time limitation on submitting claims did not conflict with §1132(a), even though the state "rule of decision," id., at 377, could mean the difference between success and failure for a beneficiary. The procedure provided by §4-10 does not fall within Pilot Life's categorical preemption.B Rush still argues for going beyond Pilot Life, making the preemption issue here one of degree, whether the state procedural imposition interferes unreasonably with Congress's intention to provide a uniform federal regime of "rights and obligations" under ERISA. However, "[s]uch disuniformities ... are the inevitable result of the congressional decision to `save' local insurance regulation." Metropolitan Life, 471 U. S., at 747.11 Although we have recognized a limited exception from the saving clause for alternative causes of action and alternative remedies in the sense described above, we have never indicated that there might be additional justifications for qualifying the clause's application. Rush's arguments today convince us that further limits on insurance regulation preserved by ERISA are unlikely to deserve recognition. To be sure, a State might provide for a type of "review" that would so resemble an adjudication as to fall within Pilot Life's categorical bar. Rush, and the dissent, post, at 8, contend that §4-10 fills that bill by imposing an alternative scheme of arbitral adjudication at odds with the manifest congressional purpose to confine adjudication of disputes to the courts. It does not turn out to be this simple, however, and a closer look at the state law reveals a scheme significantly different from common arbitration as a way of construing and applying contract terms. In the classic sense, arbitration occurs when "parties in dispute choose a judge to render a final and binding decision on the merits of the controversy and on the basis of proofs presented by the parties." 1 I. MacNeil, R. Speidel, & T. Stipanowich, Federal Arbitration Law §2.1.1 (1995) (internal quotation marks omitted); see also Uniform Arbitration Act §5, 7 U. L. A. 173 (1997) (discussing submission evidence and empowering arbitrator to "hear and determine the controversy upon the evidence produced"); Commercial Dispute Resolution Procedures of the American Arbitration Association ¶ ;¶ ;R33-R35 (Sept. 2000) (discussing the taking of evidence). Arbitrators typically hold hearings at which parties may submit evidence and conduct cross-examinations, e.g., Uniform Arbitration Act §5, and are often invested with many powers over the dispute and the parties, including the power to subpoena witnesses and administer oaths, e.g., Federal Arbitration Act, 9 U. S. C. §7; 28 U. S. C. §653; Uniform Arbitration Act §7, 7 U. L. A., at 199; Cal. Civ. Proc. Code Ann. §§1282.6, 1282.8 (West 1982). Section 4-10 does resemble an arbitration provision, then, to the extent that the independent reviewer considers disputes about the meaning of the HMO contract12 and receives "evidence" in the form of medical records, statements from physicians, and the like. But this is as far as the resemblance to arbitration goes, for the other features of review under §4-10 give the proceeding a different character, one not at all at odds with the policy behind §1132(a). The Act does not give the independent reviewer a free-ranging power to construe contract terms, but instead, confines review to a single term: the phrase "medical necessity," used to define the services covered under the contract. This limitation, in turn, implicates a feature of HMO benefit determinations that we described in Pegram v. Herdrich, 530 U. S. 211 (2000). We explained that when an HMO guarantees medically necessary care, determinations of coverage "cannot be untangled from physicians' judgments about reasonable medical treatment." Id., at 229. This is just how the Illinois Act operates; the independent examiner must be a physician with credentials similar to those of the primary care physician, 215 Ill. Comp. Stat., ch. 125, §4-10 (2000), and is expected to exercise independent medical judgment in deciding what medical necessity requires. Accordingly, the reviewer in this case did not hold the kind of conventional evidentiary hearing common in arbitration, but simply received medical records submitted by the parties, and ultimately came to a professional judgment of his own. Tr. of Oral Arg. 30-32. Once this process is set in motion, it does not resemble either contract interpretation or evidentiary litigation before a neutral arbiter, as much as it looks like a practice (having nothing to do with arbitration) of obtaining another medical opinion. The reference to an independent reviewer is similar to the submission to a second physician, which many health insurers are required by law to provide before denying coverage.13 The practice of obtaining a second opinion, however, is far removed from any notion of an enforcement scheme, and once §4-10 is seen as something akin to a mandate for second-opinion practice in order to ensure sound medical judgments, the preemption argument that arbitration under §4-10 supplants judicial enforcement runs out of steam. Next, Rush argues that §4-10 clashes with a substantive rule intended to be preserved by the system of uniform enforcement, stressing a feature of judicial review highly prized by benefit plans: a deferential standard for reviewing benefit denials. Whereas Firestone Tire & Rubber Co. v. Bruch, 489 U. S., at 115, recognized that an ERISA plan could be designed to grant "discretion" to a plan fiduciary, deserving deference from a court reviewing a discretionary judgment, §4-10 provides that when a plan purchases medical services and insurance from an HMO, benefit denials are subject to apparently de novo review. If a plan should continue to balk at providing a service the reviewer has found medically necessary, the reviewer's determination could carry great weight in a subsequent suit for benefits under §1132(a),14 depriving the plan of the judicial deference a fiduciary's medical judgment might have obtained if judicial review of the plan's decision had been immediate.15 Again, however, the significance of §4-10 is not wholly captured by Rush's argument, which requires some perspective for evaluation. First, in determining whether state procedural requirements deprive plan administrators of any right to a uniform standard of review, it is worth recalling that ERISA itself provides nothing about the standard. It simply requires plans to afford a beneficiary some mechanism for internal review of a benefit denial, 29 U. S. C. §1133(2), and provides a right to a subsequent judicial forum for a claim to recover benefits, §1132(a)(1)(B). Whatever the standards for reviewing benefit denials may be, they cannot conflict with anything in the text of the statute, which we have read to require a uniform judicial regime of categories of relief and standards of primary conduct, not a uniformly lenient regime of reviewing benefit determinations. See Pilot Life, 481 U. S., at 56.16 Not only is there no ERISA provision directly providing a lenient standard for judicial review of benefit denials, but there is no requirement necessarily entailing such an effect even indirectly. When this Court dealt with the review standards on which the statute was silent, we held that a general or default rule of de novo review could be replaced by deferential review if the ERISA plan itself provided that the plan's benefit determinations were matters of high or unfettered discretion, see Firestone Tire, supra, at 115. Nothing in ERISA, however, requires that these kinds of decisions be so "discretionary" in the first place; whether they are is simply a matter of plan design or the drafting of an HMO contract. In this respect, then, §4-10 prohibits designing an insurance contract so as to accord unfettered discretion to the insurer to interpret the contract's terms. As such, it does not implicate ERISA's enforcement scheme at all, and is no different from the types of substantive state regulation of insurance contracts we have in the past permitted to survive preemption, such as mandated-benefit statutes and statutes prohibiting the denial of claims solely on the ground of untimeliness.17 See Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985); UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 (1999).* * * In sum, §4-10 imposes no new obligation or remedy like the causes of action considered in Russell, Pilot Life, and Ingersoll-Rand. Even in its formal guise, the state Act bears a closer resemblance to second-opinion requirements than to arbitration schemes. Deferential review in the HMO context is not a settled given; §4-10 operates before the stage of judicial review; the independent reviewer's de novo examination of the benefit claim mirrors the general or default rule we have ourselves recognized; and its effect is no greater than that of mandated-benefit regulation. In deciding what to make of these facts and conclusions, it helps to go back to where we started and recall the ways States regulate insurance in looking out for the welfare of their citizens. Illinois has chosen to regulate insurance as one way to regulate the practice of medicine, which we have previously held to be permissible under ERISA, see Metropolitan Life 471 U. S., at 741. While the statute designed to do this undeniably eliminates whatever may have remained of a plan sponsor's option to minimize scrutiny of benefit denials, this effect of eliminating an insurer's autonomy to guarantee terms congenial to its own interests is the stuff of garden variety insurance regulation through the imposition of standard policy terms. See id., at 742 ("[S]tate laws regulating the substantive terms of insurance contracts were commonplace well before the mid-70's"). It is therefore hard to imagine a reservation of state power to regulate insurance that would not be meant to cover restrictions of the insurer's advantage in this kind of way. And any lingering doubt about the reasonableness of §4-10 in affecting the application of §1132(a) may be put to rest by recalling that regulating insurance tied to what is medically necessary is probably inseparable from enforcing the quintessentially state-law standards of reasonable medical care. See Pegram v. Herdrich, 530 U. S., at 236. "[I]n the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose." Id., at 237. To the extent that benefits litigation in some federal courts may have to account for the effects of §4-10, it would be an exaggeration to hold that the objectives of §1132(a) are undermined. The saving clause is entitled to prevail here, and we affirm the judgment.It is so ordered.RUSH PRUDENTIAL HMO, INC., PETITIONER v. DEBRA C. MORAN et al.on writ of certiorari to the united states court of appeals for the seventh circuit[June 20, 2002] Justice Thomas, with whom The Chief Justice, Justice Scalia, and Justice Kennedy join, dissenting. This Court has repeatedly recognized that ERISA's civil enforcement provision, §502 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. §1132, provides the exclusive vehicle for actions asserting a claim for benefits under health plans governed by ERISA, and therefore that state laws that create additional remedies are pre-empted. See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 52 (1987); Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 146-147 (1985). Such exclusivity of remedies is necessary to further Congress' interest in establishing a uniform federal law of employee benefits so that employers are encouraged to provide benefits to their employees: "To require plan providers to design their programs in an environment of differing state regulations would complicate the administration of nationwide plans, producing inefficiencies that employers might offset with decreased benefits." FMC Corp. v. Holliday, 498 U. S. 52, 60 (1990). Of course, the "expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop ... would make little sense if the remedies available to ERISA participants and beneficiaries under §502(a) could be supplemented or supplanted by varying state laws." Pilot Life, supra, at 56. Therefore, as the Court concedes, see ante, at 19, even a state law that "regulates insurance" may be pre-empted if it supplements the remedies provided by ERISA, despite ERISA's saving clause, §514(b)(2)(A), 29 U. S. C. §1144(b)(2)(A). See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248 (1984) (noting that state laws that stand as an obstacle to the accomplishment of the full purposes and objectives of Congress are pre-empted).1 Today, however, the Court takes the unprecedented step of allowing respondent Debra Moran to short circuit ERISA's remedial scheme by allowing her claim for benefits to be determined in the first instance through an arbitral-like procedure provided under Illinois law, and by a decisionmaker other than a court. See 215 Ill. Comp. Stat., ch.125, §4-10 (2000). This decision not only conflicts with our precedents, it also eviscerates the uniformity of ERISA remedies Congress deemed integral to the "careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans." Pilot Life, supra, at 54. I would reverse the Court of Appeals' judgment and remand for a determination of whether Moran was entitled to reimbursement absent the independent review conducted under §4-10.I From the facts of this case one can readily understand why Moran sought recourse under §4-10. Moran is covered by a medical benefits plan sponsored by her husband's employer and governed by ERISA. Petitioner Rush Prudential HMO, Inc., is the employer's health maintenance organization (HMO) provider for the plan. Petitioner's Member Certificate of Coverage (Certificate) details the scope of coverage under the plan and provides petitioner with "the broadest possible discretion" to interpret the terms of the plan and to determine participants' entitlement to benefits. 1 Record, Exh. A, p. 8. The Certificate specifically excludes from coverage services that are not "medically necessary." Id., at 21. As the Court describes, ante, at 2-3, Moran underwent a nonstandard surgical procedure.2 Prior to Moran's surgery, which was performed by an unaffiliated doctor, petitioner denied coverage for the procedure on at least three separate occasions, concluding that this surgery was not "medically necessary." For the same reason, petitioner denied Moran's request for postsurgery reimbursement in the amount of $94,841.27. Before finally determining that the specific treatment sought by Moran was not "medically necessary," petitioner consulted no fewer than six doctors, reviewed Moran's medical records, and consulted peer-reviewed medical literature.3 In the course of its review, petitioner informed Moran that "there is no prevailing opinion within the appropriate specialty of the United States medical profession that the procedure proposed [by Moran] is safe and effective for its intended use and that the omission of the procedure would adversely affect [her] medical condition." 1 Record, Exh. E, p. 2. Petitioner did agree to cover the standard treatment for Moran's ailment, see n. 2, supra; n. 4, infra, concluding that peer-reviewed literature "demonstrates that [the standard surgery] is effective therapy in the treatment of [Moran's condition]." 1 Record, Exh. E, at 3. Moran, however, was not satisfied with this option. After exhausting the plan's internal review mechanism, Moran chose to bypass the relief provided by ERISA. She invoked §4-10 of the Illinois HMO Act, which requires HMOs to provide a mechanism for review by an independent physician when the patient's primary care physician and HMO disagree about the medical necessity of a treatment proposed by the primary care physician. See 215 Ill. Comp. Stat., ch.125, §4-10 (2000). While Moran's primary care physician acknowledged that petitioner's affiliated surgeons had not recommended the unconventional surgery and that he was not "an expert in this or any other area of surgery," 1 Record, Exh. C, he nonetheless opined, without explanation, that Moran would be "best served" by having that surgery," ibid. Dr. A. Lee Dellon, an unaffiliated physician who served as the independent medical reviewer, concluded that the surgery for which petitioner denied coverage "was appropriate," that it was "the same type of surgery" he would have done, and that Moran "had all of the indications and therefore the medical necessity to carry out" the nonstandard surgery. Appellant's Separate App. (CA7), pp. A42-A43.4 Under §4-10, Dr. Dellon's determination conclusively established Moran's right to benefits under Illinois law. See 215 Ill. Comp. Stat., ch.125, §4-10 ("In the event that the reviewing physician determines the covered service to be medically necessary, the [HMO] shall provide the covered service" (emphasis added)). 230 F. 3d 959, 972-973 (CA7 2000). Nevertheless, petitioner again denied benefits, steadfastly maintaining that the unconventional surgery was not medically necessary. While the Court of Appeals recharacterized Moran's claim for reimbursement under §4-10 as a claim for benefits under ERISA §502(a)(1)(B), it reversed the judgment of the District Court based solely on Dr. Dellon's judgment that the surgery was "medically necessary."II Section 514(a)'s broad language provides that ERISA "shall supersede any and all State laws insofar as they ... relate to any employee benefit plan," except as provided in §514(b). 29 U. S. C. §1144(a). This language demonstrates "Congress's intent to establish the regulation of employee welfare benefit plans `as exclusively a federal concern.' " New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 656 (1995) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 523 (1981)). It was intended to "ensure that plans and plan sponsors would be subject to a uniform body of benefits law" so as to "minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government" and to prevent "the potential for conflict in substantive law ... requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction." Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990). See also Egelhoff v. Egelhoff, 532 U. S. 141, 148 (2001). To be sure, this broad goal of uniformity is in some tension with the so-called "saving clause," which provides that ERISA does not "exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." §514(b)(2)(A) of ERISA, 29 U. S. C. §1144(b)(2)(A). As the Court has suggested on more than one occasion, the pre-emption and saving clauses are almost antithetically broad and " `are not a model of legislative drafting.' " John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U. S. 86, 99 (1993) (quoting Pilot Life, 481 U. S., at 46). But because there is "no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional pre-emption analysis," the Court has concluded that federal pre-emption occurs where state law governing insurance " `stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.' " Harris Trust, supra, at 99 (quoting Silkwood, 464 U. S., at 248). Consequently, the Court until today had consistently held that state laws that seek to supplant or add to the exclusive remedies in §502(a) of ERISA, 29 U. S. C. §1132(a), are pre-empted because they conflict with Congress' objective that rights under ERISA plans are to be enforced under a uniform national system. See, e.g., Ingersoll-Rand Co., supra, at 142-145; Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 64-66 (1987); Pilot Life, supra, at 52-57. The Court has explained that §502(a) creates an "interlocking, interrelated, and interdependent remedial scheme," and that a beneficiary who claims that he was wrongfully denied benefits has "a panoply of remedial devices" at his disposal. Russell, 473 U. S., at 146. It is exactly this enforcement scheme that Pilot Life described as "represent[ing] a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," 481 U. S., at 54. Central to that balance is the development of "a federal common law of rights and obligations under ERISA-regulated plans." Id., at 56. In addressing the relationship between ERISA's remedies under §502(a) and a state law regulating insurance, the Court has observed that "[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA." Id., at 54. Thus, while the preeminent federal interest in the uniform administration of employee benefit plans yields in some instances to varying state regulation of the business of insurance, the exclusivity and uniformity of ERISA's enforcement scheme remains paramount. "Congress intended §502(a) to be the exclusive remedy for rights guaranteed under ERISA." Ingersoll-Rand Co., supra, at 144. In accordance with ordinary principles of conflict pre-emption, therefore, even a state law "regulating insurance" will be pre-empted if it provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA's remedial scheme. See, e.g., Pilot Life, supra, at 54 (citing Russell, supra, at 146); Harris Trust, supra, at 99 (citing Silkwood, supra, at 248).III The question for the Court, therefore, is whether §4-10 provides such a vehicle. Without question, Moran had a "panoply of remedial devices," Russell, supra, at 146, available under §502 of ERISA when petitioner denied her claim for benefits.5 Section 502(a)(1)(B) of ERISA pro-vided the most obvious remedy: a civil suit to recover benefits due under the terms of the plan. 29 U. S. C. §1132(a)(1)(B). But rather than bring such a suit, Moran sought to have her right to benefits determined outside of ERISA's remedial scheme through the arbitral-like mechanism available under §4-10. Section 4-10 cannot be characterized as anything other than an alternative state-law remedy or vehicle for seeking benefits. In the first place, §4-10 comes into play only if the HMO and the claimant dispute the claimant's entitlement to benefits; the purpose of the review is to determine whether a claimant is entitled to benefits. Contrary to the majority's characterization of §4-10 as nothing more than a state law regarding medical standards, ante, at 26-27, it is in fact a binding determination of whether benefits are due: "In the event that the reviewing physician determines the covered service to be medically necessary, the [HMO] shall provide the covered service." 215 Ill. Comp. Stat., ch. 125, §4-10 (2000) (emphasis added). Section 4-10 is thus most precisely characterized as an arbitration-like mechanism to settle benefits disputes. See Brief for United States as Amicus Curiae 23 (conceding as much). There is no question that arbitration constitutes an alternative remedy to litigation. See, e.g., Air Line Pilots v. Miller, 523 U. S. 866, 876, 880 (1998) (referring to "arbitral remedy" and "arbitration remedy"); DelCostello v. Teamsters, 462 U. S. 151, 163 (1983) (referring to "arbitration remedies"); Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366, 377-378 (1979) (noting that arbitration and litigation are "alternative remedies"); 3 D. Dobbs, Law of Remedies §12.23 (2d. ed. 1993) (explaining that arbitration "is itself a remedy"). Consequently, although a contractual agreement to arbitrate — which does not constitute a "State law" relating to "any employee benefit plan"--is outside §514(a) of ERISA's pre-emptive scope, States may not circumvent ERISA pre-emption by mandating an alternative arbitral-like remedy as a plan term enforceable through an ERISA action. To be sure, the majority is correct that §4-10 does not mirror all procedural and evidentiary aspects of "common arbitration." Ante, at 25-26. But as a binding decision on the merits of the controversy the §4-10 review resembles nothing so closely as arbitration. See generally 1 I. MacNeil, R. Spediel, & T. Stipanowich, Federal Arbitration Law §2.1.1 (1995). That the decision of the §4-10 medical reviewer is ultimately enforceable through a suit under §502(a) of ERISA further supports the proposition that it tracks the arbitral remedy. Like the decision of any arbitrator, it is enforceable through a subsequent judicial action, but judicial review of an arbitration award is very limited, as was the Court of Appeals' review in this case. See, e.g., Paperworkers v. Misco, Inc., 484 U. S. 29, 36-37 (1987) (quoting Steelworkers v. American Mfg. Co., 363 U. S. 564, 567-568 (1960)). Although the Court of Appeals recharacterized Moran's claim for reimbursement under §4-10 as a claim for benefits under §502(a)(1)(B) of ERISA, the Court of Appeals did not interpret the plan terms or purport to analyze whether the plan fiduciary had engaged in the "full and fair review" of Moran's claim for benefits that §503(2) of ERISA, 29 U. S. C. §1133(2), requires. Rather, it rubberstamped the independent medical reviewer's judgment that Moran's surgery was "medically necessary," granting summary judgment to Moran on her claim for benefits solely on that basis. Thus, as Judge Posner aptly noted in his dissent from the denial of rehearing en banc below, §4-10 "establishes a system of appellate review of benefits decisions that is distinct from the provision in ERISA for suits in federal court to enforce entitlements conferred by ERISA plans." 230 F. 3d, at 973.IV The Court of Appeals attempted to evade the pre-emptive force of ERISA's exclusive remedial scheme primarily by characterizing the alternative enforcement mechanism created by §4-10 as a "contract term" under state law.6 Id., at 972. The Court saves §4-10 from pre-emption in a somewhat different manner, distinguishing it from an alternative enforcement mechanism because it does not "enlarge the claim beyond the benefits available in any action brought under §1132(a)," and characterizing it as "something akin to a mandate for second-opinion practice in order to ensure sound medical judgments." Ante, at 22, 27. Neither approach is sound. The Court of Appeals' approach assumes that a State may impose an alternative enforcement mechanism through mandated contract terms even though it could not otherwise impose such an enforcement mechanism on a health plan governed by ERISA. No party cites any authority for that novel proposition, and I am aware of none. Cf. Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 16-17 (1987) (noting that a State cannot avoid ERISA pre-emption on the ground that its regulation only mandates a benefit plan; such an approach would "permit States to circumvent ERISA's pre-emption provision, by allowing them to require directly what they are forbidden to regulate"). To hold otherwise would be to eviscerate ERISA's comprehensive and exclusive remedial scheme because a claim to benefits under an employee benefits plan could be determined under each State's particular remedial devices so long as they were made contract terms. Such formalist tricks cannot be sufficient to bypass ERISA's exclusive remedies; we should not interpret ERISA in such a way as to destroy it. With respect to the Court's position, Congress' intention that §502(a) be the exclusive remedy for rights guaranteed under ERISA has informed this Court's weighing of the pre-emption and saving clauses. While the Court has previously focused on ERISA's overall enforcement mechanism and remedial scheme, see infra, at 6-7, the Court today ignores the "interlocking, interrelated, and interdependent" nature of that remedial scheme and announces that the relevant inquiry is whether a state regulatory scheme "provides [a] new cause of action" or authorizes a "new form of ultimate relief." Ante, at 23. These newly created principles have no roots in the precedents of this Court. That §4-10 also effectively provides for a second opinion to better ensure sound medical practice is simply irrelevant to the question whether it, in fact, provides a binding mechanism for a participant or beneficiary to pursue a claim for benefits because it is on this latter basis that §4-10 is pre-empted. The Court's attempt to diminish §4-10's effect by characterizing it as one where "the reviewer's determination would presumably replace that of the HMO," ante, at 23 (emphasis added), is puzzling given that the statute makes such a determination conclusive and the Court of Appeals treated it as a binding adjudication. For these same reasons, it is troubling that the Court views the review under §4-10 as nothing more than a practice "of obtaining a second [medical] opinion." Ante, at 27. The independent reviewer may, like most arbitrators, possess special expertise or knowledge in the area subject to arbitration. But while a second medical opinion is nothing more than that — an opinion — a determination under §4-10 is a conclusive determination with respect to the award of benefits. And the Court's reference to Pegram v. Herdrich, 530 U. S. 211 (2000), as support for its Alice in Wonderland-like claim that the §4-10 proceeding is "far removed from any notion of an enforcement scheme," ante, at 27, is equally perplexing, given that the treatment is long over and the issue presented is purely an eligibility decision with respect to reimbursement.7 As we held in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), a State may, of course, require that employee health plans provide certain substantive benefits. See id., at 746 (holding that a state law mandating mental health benefits was not within ERISA's pre-emptive reach). Indeed, were a State to require that insurance companies provide all "medically necessary care" or even that it must provide a second opinion before denying benefits, I have little doubt that such substantive requirements would withstand ERISA's pre-emptive force. But recourse to those benefits, like all others, could be sought only through an action under §502 and not, as is the case here, through an arbitration-like remedial device. Section 4-10 does not, in any event, purport to extend a new substantive benefit. Rather, it merely sets up a procedure to conclusively determine whether the HMO's decision to deny benefits was correct when the parties disagree, a task that lies within the exclusive province of the courts through an action under §502(a). By contrast, a state law regulating insurance that merely affects whether a plan participant or beneficiary may pursue the remedies available under ERISA's remedial scheme, such as California's notice-prejudice rule, is not pre-empted because it has nothing to do with §502(a)'s exclusive enforcement scheme. In UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 (1999), the Court evaluated California's so-called notice-prejudice rule, which provides that an insurer cannot avoid liability in cases where a claim is not filed in a timely fashion absent proof that the insurer was actually prejudiced because of the delay. In holding that it was not pre-empted, the Court did not suggest that this rule provided a substantive plan term. The Court expressly declined to address the Solicitor General's argument that the saving clause saves even state law "conferring causes of action or affecting remedies that regulate insurance." See id., at 376-377, n. 7 (internal quotation marks omitted). While a law may "effectively creat[e] a mandatory contract term," id., at 374 (internal quotation marks omitted), and even provide the rule of decision with respect to whether a claim is out of time, and thus whether benefits will ultimately be received, such laws do not create an alternative enforcement mechanism with respect to recovery of plan benefits. They merely allow the participant to proceed via ERISA's enforcement scheme. To my mind, neither Metropolitan Life nor UNUM addresses, let alone purports to answer, the question before us today.* * * Section 4-10 constitutes an arbitral-like state remedy through which plan members may seek to resolve conclusively a disputed right to benefits. Some 40 other States have similar laws, though these vary as to applicability, procedures, standards, deadlines, and consequences of independent review. See Brief for Respondent State of Illinois 12, n. 4 (citing state independent review statutes); see also Kaiser Family Foundation, K. Politz, J. Crowley, K. Lucia, & E. Bangit, Assessing State External Review Programs and the Effects of Pending Federal Patients' Rights Legislation (May 2002) (comparing state program features). Allowing disparate state laws that provide inconsistent external review requirements to govern a participant's or beneficiary's claim to benefits under an employee benefit plan is wholly destructive of Congress' expressly stated goal of uniformity in this area. Moreover, it is inimical to a scheme for furthering and protecting the "careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," given that the development of a federal common law under ERISA-regulated plans has consistently been deemed central to that balance.8 Pilot Life, 481 U. S., at 54, 56. While it is true that disuniformity is the inevitable result of the Congressional decision to save local insurance regulation, this does not answer the altogether different question before the Court today, which is whether a state law "regulating insurance" nonetheless provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA's remedial scheme. See, e.g., id., at 54 (citing Russell, 473 U. S., at 146); Harris Trust, 510 U. S., at 99 (citing Silkwood, 464 U. S., at 248). If it does, the exclusivity and uniformity of ERISA's enforcement scheme must remain paramount and the state law is pre-empted in accordance with ordinary principles of conflictpre-emption.9 For the reasons noted by the Court, independent review provisions may sound very appealing. Efforts to expand the variety of remedies available to aggrieved beneficiaries beyond those set forth in ERISA are obviously designed to increase the chances that patients will be able to receive treatments they desire, and most of us are naturally sympathetic to those suffering from illness who seek further options. Nevertheless, the Court would do well to remember that no employer is required to provide any health benefit plan under ERISA and that the entire advent of managed care, and the genesis of HMOs, stemmed from spiraling health costs. To the extent that independent review provisions such as §4-10 make it more likely that HMOs will have to subsidize beneficiaries' treatments of choice, they undermine the ability of HMOs to control costs, which, in turn, undermines the ability of employers to provide health care coverage for employees. As a consequence, independent review provisions could create a disincentive to the formation of employee health benefit plans, a problem that Congress addressed by making ERISA's remedial scheme exclusive and uniform. While it may well be the case that the advantages of allowing States to implement independent review requirements as a supplement to the remedies currently provided under ERISA outweigh this drawback, this is a judgment that, pursuant to ERISA, must be made by Congress. I respectfully dissent.FOOTNOTESFootnote 1 In the health care industry, the term "Health Maintenance Organization" has been defined as "[a] prepaid organized delivery system where the organization and the primary care physicians assume some financial risk for the care provided to its enrolled members... . In a pure HMO, members must obtain care from within the system if it is to be reimbursed." Weiner & de Lissovoy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. of Health Politics, Policy and Law 75, 96 (Spring 1993) (emphasis in original). The term "Managed Care Organization" is used more broadly to refer to any number of systems combining health care delivery with financing. Id., at 97. The Illinois definition of HMO does not appear to be limited to the traditional usage of that term, but instead is likely to encompass a variety of different structures (although Illinois does distinguish HMOs from pure insurers by regulating "traditional" health insurance in a different portion of its insurance laws, 215 Ill. Comp. Stat., ch. 5 (2000)). Except where otherwise indicated, we use the term "HMO" because that is the term used by the State and the parties; what we intend is simply to describe the structures covered by the Illinois Act. Footnote 2 In light of our holding today that §4-10 is not preempted by ERISA, the propriety of this ruling is questionable; a suit to compel compliance with §4-10 in the context of an ERISA plan would seem to be akin to a suit to compel compliance with the terms of a plan under 29 U. S. C. §1132(a)(3). Alternatively, the proper course may have been to bring a suit to recover benefits due, alleging that the denial was improper in the absence of compliance with §4-10. We need not resolve today which of these options is more consonant with ERISA.Footnote 3 No party has challenged Rush's status as defendant in this case, despite the fact that many lower courts have interpreted ERISA to permit suits under §1132(a) only against ERISA plans, administrators, or fiduciaries. See, e.g., Everhart v. Allmerica Financial Life Ins. Co., 275 F. 3d 751, 754-756 (CA9 2001); Garren v. John Hancock Mut. Life Ins. Co., 114 F. 3d 186, 187 (CA11 1997); Jass v. Prudential Health Care Plan, Inc., 88 F. 3d 1482, 1490 (CA7 1996). Without commenting on the correctness of such holdings, we assume (although the information does not appear in the record) that Rush has failed to challenge its status as defendant because it is, in fact, the plan administrator. This conclusion is buttressed by the fact that the plan's sponsor has granted Rush discretion to interpret the terms of its coverage, and by the fact that one of Rush's challenges to the Illinois statute is based on what Rush perceives as the limits that statute places on fiduciary discretion. Whatever Rush's true status may be, however, it is immaterial to our holding.Footnote 4 The McCarran-Ferguson Act requires that the business of insurance be subject to state regulation, and, subject to certain exceptions, mandates that "[n]o Act of Congress shall be construed to invalidate ... any law enacted by any State for the purpose of regulating the business of insurance ... ." 15 U. S. C. §1012(b).Footnote 5 We have, in a limited number of cases, found certain contracts not to be part of the "business of insurance" under McCarran-Ferguson, notwithstanding their classification as such for the purpose of state regulation. See, e.g., SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S. 65 (1959). Even then, however, we recognized that such classifications are relevant to the enquiry, because Congress, in leaving the "business of insurance" to the States, "was legislating concerning a concept which had taken on its coloration and meaning largely from state law, from state practice, from state usage." Id., at 69.Footnote 6 ERISA's "deemer" clause provides an exception to its saving clause that forbids States from regulating self-funded plans as insurers. See 29 U. S. C. §1144(b)(2)(B); FMC Corp. v. Holliday, 498 U. S. 52, 61 (1990). Therefore, Illinois's Act would not be "saved" as an insurance law to the extent it applied to self-funded plans. This fact, however, does not bear on Rush's challenge to the law as one that is targeted toward non-risk-bearing organizations. Footnote 7 Title 29 U. S. C. §1132(a) provides in relevant part: "A civil action may be brought-- "(1) by a participant or beneficiary-- "(A) for the relief provided for in subsection (c) of this section [concerning requests to the administrator for information], or "(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; "(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title [breach of fiduciary duty]; "(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan; "(4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title [information to be furnished to participants]; "(5) except as otherwise provided in subsection (b) of this section, by the Secretary (A) to enjoin any act or practice which violates any provision of this subchapter, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this subchapter; "(6) by the Secretary to collect any civil penalty under paragraph (2), (4), (5), or (6) of subsection (c) of this section or under subsection (i) or (l) of this section."Footnote 8 Rush and its amici interpret Pilot Life to have gone a step further to hold that any law that presents such a conflict with federal goals is simply not a law that "regulates insurance," however else the "insurance" test comes out. We believe the point is largely academic. As will be discussed further, even under Rush's approach, a court must still determine whether the state law at issue does, in fact, create such a conflict. Thus, we believe that it is more logical to proceed as we have done here.Footnote 9 The parties do not dispute that §4-10, as a matter of state law, purports to make the independent reviewer's judgment dispositive as to what is "medically necessary." We accept this interpretation of the meaning of the statute for the purposes of our opinion.Footnote 10 This is not to say that the court would have no role beyond ordering compliance with the reviewer's determination. The court would have the responsibility, for example, to fashion appropriate relief, or to determine whether other aspects of the plan (beyond the "medical necessity" of a particular treatment) affect the relative rights of the parties. Rush, for example, has chosen to guarantee medically necessary services to plan participants. For that reason, to the extent §4-10 may render the independent reviewer the final word on what is necessary, see n. 9, supra, Rush is obligated to provide the service. But insurance contracts do not have to contain such guarantees, and not all do. Some, for instance, guarantee medically necessary care, but then modify that obligation by excluding experimental procedures from coverage. See, e.g., Tillery v. Hoffman Enclosures, Inc., 280 F. 3d 1192 (CA8 2002). Obviously, §4-10 does not have anything to say about whether a proposed procedure is experimental. There is also the possibility, though we do not decide the issue today, that a reviewer's judgment could be challenged as inaccurate or biased, just as the decision of a plan fiduciary might be so challenged.Footnote 11 Thus, we do not believe that the mere fact that state independent review laws are likely to entail different procedures will impose burdens on plan administration that would threaten the object of 29 U. S. C. §1132(a); it is the HMO contracting with a plan, and not the plan itself, that will be subject to these regulations, and every HMO will have to establish procedures for conforming with the local laws, regardless of what this Court may think ERISA forbids. This means that there will be no special burden of compliance upon an ERISA plan beyond what the HMO has already provided for. And although the added compliance cost to the HMO may ultimately be passed on to the ERISA plan, we have said that such "indirect economic effect[s]," New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 659 (1995), are not enough to preempt state regulation even outside of the insurance context. We recognize, of course, that a State might enact an independent review requirement with procedures so elaborate, and burdens so onerous, that they might undermine §1132(a). No such system is before us. Footnote 12 Nothing in the Act states that the reviewer should refer to the definitions of medical necessity contained in the contract, but the reviewer did, in this case, refer to that definition. Thus, we will assume that some degree of contract interpretation is required under the Act. Were no interpretation required, there would be a real question as to whether §4-10 is properly characterized as a species of mandated-benefit law of the type we approved in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985).Footnote 13 See, e.g., Cal. Ins. Code Ann. §10123.68 (West Supp. 2002); Ind. Code Ann. §27-13-37-5 (1999); N. J. Stat. Ann. §17B:26-2.3 (1996); Okla. Admin. Code §365:10-5-4 (1996); R. I. Gen. Laws §27-39-2 (1998).Footnote 14 See n. 10, supra.Footnote 15 An issue implicated by this case but requiring no resolution is the degree to which a plan provision for unfettered discretion in benefit determinations guarantees truly deferential review. In Firestone Tire itself, we noted that review for abuse of discretion would home in on any conflict of interest on the plan fiduciary's part, if a conflict was plausibly raised. That last observation was underscored only two Terms ago in Pegram v. Herdrich, 530 U. S. 211 (2000), when we again noted the potential for conflict when an HMO makes decisions about appropriate treatment, see id., at 219-220. It is a fair question just how deferential the review can be when the judicial eye is peeled for conflict of interest. Moreover, as we explained in Pegram, "it is at least questionable whether Congress would have had mixed eligibility decisions in mind when it provided that decisions administering a plan were fiduciary in nature." id., at 232. Our decision today does not require us to resolve these questions.Footnote 16 Rush presents the alternative argument that §4-10 is preempted as conflicting with ERISA's requirement that a benefit denial be reviewed by a named fiduciary, 29 U. S. C. §1133(2). Rush contends that §4-10 interferes with fiduciary discretion by forcing the provision of benefits over a fiduciary's objection. Happily, we need not decide today whether §1133(2) carries the same preemptive force of §1132(a) such that it overrides even the express saving clause for insurance regulation, because we see no conflict. Section 1133 merely requires that plans provide internal appeals of benefits denials; §4-10 plays no role in this process, instead providing for extra review once the internal process is complete. Nor is there any conflict in the removal of fiduciary "discretion"; as described below, ERISA does not require that such decisions be discretionary, and insurance regulation is not preempted merely because it conflicts with substantive plan terms. See UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358, 376 (1999) ("Under [Petitioner's] interpretation ... insurers could displace any state regulation simply by inserting a contrary term in plan documents. This interpretation would virtually rea[d] the saving clause out of ERISA." (internal quotation marks omitted)).Footnote 17 We do not mean to imply that States are free to create other forms of binding arbitration to provide de novo review of any terms of insurance contracts; as discussed above, our decision rests in part on our recognition that the disuniformity Congress hoped to avoid is not implicated by decisions that are so heavily imbued with expert medical judgments. Rather, we hold that the feature of §4-10 that provides a different standard of review with respect to mixed eligibility decisions from what would be available in court is not enough to create a conflict that undermines congressional policy in favor of uniformity of remedies.FOOTNOTESFootnote 1 I would assume without deciding that 215 Ill. Comp. Stat., ch. 125, §4-10 (2000) is a law that "regulates insurance." We can begin and end the pre-emption analysis by asking if §4-10 conflicts with the provisions of ERISA or operates to frustrate its objects. See, e.g., Boggs v. Boggs, 520 U. S. 833, 841 (1997).Footnote 2 While the Court characterizes it as an "unconventional treatment," the Court of Appeals described this surgery more clinically as "rib resection, extensive scale-nectomy," and "microneurolysis of the lower roots of the brachial plexus under intraoperative microscopic magnification." 230 F. 3d 959, 963 (CA7 2000). The standard procedure for Moran's condition, as described by the Court of Appeals, involves (like the nonstandard surgery) rib resection with scale-nectomy, but it does not include "microneurolysis of the brachial plexus," which is the procedure Moran wanted and her primary care physician recommended. See id., at 963-964. In any event, no one disputes that the procedure was not the standard surgical procedure for Moran's condition or that the Certificate covers even nonstandard surgery if it is "medically necessary."Footnote 3 Petitioner thus appears to have complied with §503 of ERISA, which requires every employee benefit plan to "provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied," and to "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim." 29 U. S. C. §1133.Footnote 4 Even Dr. Dellon acknowledged, however, both that "[t]here is no particular research study" to determine whether failure to perform the nonstandard surgery would adversely affect Moran's medical condition and that the most common operation for Moran's condition in the United States was the standard surgery that petitioner had agreed to cover. Appellant's Separate App. (CA7), p. A43.Footnote 5 Commonly included in the panoply constituting part of this enforcement scheme are: suits under §502(a)(1)(B) (authorizing an action to recover benefits, obtain a declaratory judgment that one is entitled to benefits, and to enjoin an improper refusal to pay benefits); suits under §§502(a)(2) and 409 (authorizing suit to seek removal of the fiduciary); and a claim for attorney's fees under §502(g). See Russell, 481 U. S. 41, 53 (1987).Footnote 6 The Court of Appeals concluded that §4-10 is saved from pre-emption because it is a law that "regulates insurance," and that it does not conflict with the exclusive enforcement mechanism of §502 because §4-10's independent review mechanism is a state-mandated contractual term of the sort that survived ERISA pre-emption in UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358, 375-376 (1999). In the Court of Appeals' view, the independent review provision, like any other mandatory contract term, can be enforced through an action brought under §502(a) of ERISA, 29 U. S. C. §1132(a), pursuant to state law. 230 F. 3d, at 972.Footnote 7 I also disagree with the Court's suggestion that, following Pegram v. Herdrich, 530 U. S. 211 (2000), HMOs are exempted from ERISA whenever a coverage or reimbursement decision relies in any respect on medical judgment. Ante, at 26, 30, n. 17. Pegram decided the limited question whether relief was available under §1109 for claims of fiduciary breach against HMOs based on its physicians' medical decisions. Quite sensibly, in my view, that question was answered in the negative because otherwise, "for all practical purposes, every claim of fiduciary breach by an HMO physician making a mixed decision would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians." 530 U. S., at 235.Footnote 8 The Court suggests that a state law's impact on cost is not relevant after New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 662 (1995), which holds that a state law providing for surcharges on hospital rates did not, based solely on their indirect economic effect, "bear the requisite `connection with' ERISA plans to trigger pre-emption." But Travelers addressed only the question whether a state law "relates to" an ERISA plan so as to fall within §514(a)'s broad preemptive scope in the first place and is not relevant to the inquiry here. The Court holds that "[i]t is beyond serious dispute," ante, at 7-8, that §4-10 does "relate to" an ERISA plan; §4-10's economic effects are necessarily relevant to the extent that they upset the object of §1132(a). See Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990) ("Section 514(a) was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government. Otherwise, the inefficiencies created could work to the detriment of plan beneficiaries").Footnote 9 The Court isolates the "plan" from the HMO and then concludes that the independent review provision "does not threaten the object of 29 U. S. C. §1132" because it does not affect the plan, but only the HMO. Ante, at 24, n. 11. To my knowledge such a distinction is novel. Cf. Pegram, 530 U. S., at 223 (recognizing that the agreement between an HMO and an employer may provide elements of a plan by setting out the rules under which care is provided). Its application is particularly novel here, where the Court appears to view the HMO as the plan administrator, leaving one to wonder how the myriad state independent review procedures can help but have an impact on plan administration. Ante, at 5-6, n. 3. |
0 | A shopkeeper was wounded by gunshot during an attempted robbery but, also being armed with a gun, apparently wounded his assailant in his left side, and the assailant then ran from the scene. Shortly after the victim was taken to a hospital, police officers found respondent, who was suffering from a gunshot wound to his left chest area, eight blocks away from the shooting. He was also taken to the hospital, where the victim identified him as the assailant. After an investigation, the police charged respondent with, inter alia, attempted robbery and malicious wounding. Thereafter the Commonwealth of Virginia moved in state court for an order directing respondent to undergo surgery to remove a bullet lodged under his left collarbone, asserting that the bullet would provide evidence of respondent's guilt or innocence. On the basis of expert testimony that the surgery would require an incision of only about one-half inch, could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed," the court granted the motion, and the Virginia Supreme Court denied respondent's petition for a writ of prohibition and/or a writ of habeas corpus. Respondent then brought an action in Federal District Court to enjoin the pending operation on Fourth Amendment grounds, but the court refused to issue a preliminary injunction. Subsequently, X rays taken just before surgery was scheduled showed that the bullet was lodged substantially deeper than had been thought when the state court granted the motion to compel surgery, and the surgeon concluded that a general anesthetic would be desirable. Respondent unsuccessfully sought a rehearing in the state trial court, and the Virginia Supreme Court affirmed. However, respondent then returned to the Federal District Court, which, after an evidentiary hearing, enjoined the threatened surgery. The Court of Appeals affirmed.Held: The proposed surgery would violate respondent's right to be secure in his person and the search would be "unreasonable" under the Fourth Amendment. Pp. 758-767. (a) A compelled surgical intrusion into an individual's body for evidence implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to produce evidence of a crime. The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure to obtain evidence for fairly determining guilt or innocence. The appropriate framework of analysis for such cases is provided in Schmerber v. California, , which held that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violating the suspect' Fourth Amendment rights. Beyond the threshold requirements as to probable cause and warrants, Schmerber's inquiry considered other factors for determining "reasonableness" - including the extent to which the procedure may threaten the individual's safety or health, the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity, and the community's interest in fairly and accurately determining guilt or innocence. Pp. 758-763. (b) Under the Schmerber balancing test, the lower federal courts reached the correct result here. The threats to respondent's safety posed by the surgery were the subject of sharp dispute, and there was conflict in the testimony concerning the nature and scope of the operation. Thus, the resulting uncertainty about the medical risks was properly taken into account. Moreover, the intrusion on respondent's privacy interests and bodily integrity can only be characterized as severe. Surgery without the patient's consent, performed under a general anesthetic to search for evidence of a crime, involves a virtually total divestment of the patient's ordinary control over surgical probing beneath his skin. On the other hand, the Commonwealth's assertions of compelling need to intrude into respondent's body to retrieve the bullet are not persuasive. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted the victim. Pp. 763-766. 717 F.2d 888, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 767. BLACKMUN and REHNQUIST, JJ., concurred in the judgment.Stacy F. Garrett III argued the cause and filed a brief for petitioners.Joseph Ryland Winston argued the cause and filed briefs for respondent. JUSTICE BRENNAN delivered the opinion of the Court.Schmerber v. California, , held, inter alia, that a State may, over the suspect's protest, have a physician extract blood from a person suspected of drunken driving without violation of the suspect's right secured by the Fourth Amendment not to be subjected to unreasonable searches and seizures. However, Schmerber cautioned: "That we today hold that the Constitution does not forbid the States['] minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions." Id., at 772. In this case, the Commonwealth of Virginia seeks to compel the respondent Rudolph Lee, who is suspected of attempting to commit armed robbery, to undergo a surgical procedure under a general anesthetic for removal of a bullet lodged in his chest. Petitioners allege that the bullet will provide evidence of respondent's guilt or innocence. We conclude that the procedure sought here is an example of the "more substantial intrusion" cautioned against in Schmerber, and hold that to permit the procedure would violate respondent's right to be secure in his person guaranteed by the Fourth Amendment.IAAt approximately 1 a. m. on July 18, 1982, Ralph E. Watkinson was closing his shop for the night. As he was locking the door, he observed someone armed with a gun coming toward him from across the street. Watkinson was also armed and when he drew his gun, the other person told him to freeze. Watkinson then fired at the other person, who returned his fire. Watkinson was hit in the legs, while the other individual, who appeared to be wounded in his left side, ran from the scene. The police arrived on the scene shortly thereafter, and Watkinson was taken by ambulance to the emergency room of the Medical College of Virginia (MCV) Hospital.Approximately 20 minutes later, police officers responding to another call found respondent eight blocks from where the earlier shooting occurred. Respondent was suffering from a gunshot wound to his left chest area and told the police that he had been shot when two individuals attempted to rob him. An ambulance took respondent to the MCV Hospital. Watkinson was still in the MCV emergency room and, when respondent entered that room, said "[t]hat's the man that shot me." App. 14. After an investigation, the police decided that respondent's story of having been himself the victim of a robbery was untrue and charged respondent with attempted robbery, malicious wounding, and two counts of using a firearm in the commission of a felony.BThe Commonwealth shortly thereafter moved in state court for an order directing respondent to undergo surgery to remove an object thought to be a bullet lodged under his left collarbone. The court conducted several evidentiary hearings on the motion. At the first hearing, the Commonwealth's expert testified that the surgical procedure would take 45 minutes and would involve a three to four percent chance of temporary nerve damage, a one percent chance of permanent nerve damage, and a one-tenth of one percent chance of death. At the second hearing, the expert testified that on reexamination of respondent, he discovered that the bullet was not "back inside close to the nerves and arteries," id., at 52, as he originally had thought. Instead, he now believed the bullet to be located "just beneath the skin." Id., at 57. He testified that the surgery would require an incision of only one and one-half centimeters (slightly more than one-half inch), could be performed under local anesthesia, and would result in "no danger on the basis that there's no general anesthesia employed." Id., at 51. The state trial judge granted the motion to compel surgery. Respondent petitioned the Virginia Supreme Court for a writ of prohibition and/or a writ of habeas corpus, both of which were denied. Respondent then brought an action in the United States District Court for the Eastern District of Virginia to enjoin the pending operation on Fourth Amendment grounds. The court refused to issue a preliminary injunction, holding that respondent's cause had little likelihood of success on the merits. 551 F. Supp. 247, 247-253 (1982).1 On October 18, 1982, just before the surgery was scheduled, the surgeon ordered that X rays be taken of respondent's chest. The X rays revealed that the bullet was in fact lodged two and one-half to three centimeters (approximately one inch) deep in muscular tissue in respondent's chest, substantially deeper than had been thought when the state court granted the motion to compel surgery. The surgeon now believed that a general anesthetic would be desirable for medical reasons.Respondent moved the state trial court for a rehearing based on the new evidence. After holding an evidentiary hearing, the state trial court denied the rehearing, and the Virginia Supreme Court affirmed. Respondent then returned to federal court, where he moved to alter or amend the judgment previously entered against him. After an evidentiary hearing, the District Court enjoined the threatened surgery. 551 F. Supp., at 253-261 (supplemental opinion).2 A divided panel of the Court of Appeals for the Fourth Circuit affirmed. 717 F.2d 888 (1983).3 We granted certiorari, , to consider whether a State may consistently with the Fourth Amendment compel a suspect to undergo surgery of this kind in a search for evidence of a crime.IIThe Fourth Amendment protects "expectations of privacy," see Katz v. United States, - the individual's legitimate expectations that in certain places and at certain times he has "the right to be let alone - the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, , 478 (1928) (Brandeis, J., dissenting). Putting to one side the procedural protections of the warrant requirement, the Fourth Amendment generally protects the "security" of "persons, houses, papers, and effects" against official intrusions up to the point where the community's need for evidence surmounts a specified standard, ordinarily "probable cause." Beyond this point, it is ordinarily justifiable for the community to demand that the individual give up some part of his interest in privacy and security to advance the community's vital interests in law enforcement; such a search is generally "reasonable" in the Amendment's terms.A compelled surgical intrusion into an individual's body for evidence, however, implicates expectations of privacy and security of such magnitude that the intrusion may be "unreasonable" even if likely to produce evidence of a crime. In Schmerber v. California, , we addressed a claim that the State had breached the Fourth Amendment's protection of the "right of the people to be secure in their persons ... against unreasonable searches and seizures" (emphasis added) when it compelled an individual suspected of drunken driving to undergo a blood test. Schmerber had been arrested at a hospital while receiving treatment for injuries suffered when the automobile he was driving struck a tree. Id., at 758. Despite Schmerber's objection, a police officer at the hospital had directed a physician to take a blood sample from him. Schmerber subsequently objected to the introduction at trial of evidence obtained as a result of the blood test.The authorities in Schmerber clearly had probable cause to believe that he had been driving while intoxicated, id., at 768, and to believe that a blood test would provide evidence that was exceptionally probative in confirming this belief. Id., at 770. Because the case fell within the exigent-circumstances exception to the warrant requirement, no warrant was necessary. Ibid. The search was not more intrusive than reasonably necessary to accomplish its goals. Nonetheless, Schmerber argued that the Fourth Amendment prohibited the authorities from intruding into his body to extract the blood that was needed as evidence.Schmerber noted that "[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Id., at 767. Citing Wolf v. Colorado, , and Mapp v. Ohio, , we observed that these values were "basic to a free society." We also noted that "[b]ecause we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers - `houses, papers, and effects' - we write on a clean slate." 384 U.S., at 767-768. The intrusion perhaps implicated Schmerber's most personal and deep-rooted expectations of privacy, and the Court recognized that Fourth Amendment analysis thus required a discerning inquiry into the facts and circumstances to determine whether the intrusion was justifiable. The Fourth Amendment neither forbids nor permits all such intrusions; rather, the Amendment's "proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Id., at 768.The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual's interests in privacy and security are weighed against society's interests in conducting the procedure. In a given case, the question whether the community's need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers. We believe that Schmerber, however, provides the appropriate framework of analysis for such cases.Schmerber recognized that the ordinary requirements of the Fourth Amendment would be the threshold requirements for conducting this kind of surgical search and seizure. We noted the importance of probable cause. Id., at 768-769. And we pointed out: "Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned... . The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great." Id., at 770.Beyond these standards, Schmerber's inquiry considered a number of other factors in determining the "reasonableness" of the blood test. A crucial factor in analyzing the magnitude of the intrusion in Schmerber is the extent to which the procedure may threaten the safety or health of the individual. "[F]or most people [a blood test] involves virtually no risk, trauma, or pain." Id., at 771. Moreover, all reasonable medical precautions were taken and no unusual or untested procedures were employed in Schmerber; the procedure was performed "by a physician in a hospital environment according to accepted medical practices." Ibid. Notwithstanding the existence of probable cause, a search for evidence of a crime may be unjustifiable if it endangers the life or health of the suspect.4 Another factor is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity. Intruding into an individual's living room, see Payton v. New York, , eavesdropping upon an individual's telephone conversations, see Katz v. United States, 389 U.S., at 361, or forcing an individual to accompany police officers to the police station, see Dunaway v. New York, , typically do not injure the physical person of the individual. Such intrusions do, however, damage the individual's sense of personal privacy and security and are thus subject to the Fourth Amendment's dictates. In noting that a blood test was "a commonplace in these days of periodic physical examinations," 384 U.S., at 771, Schmerber recognized society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity.5 Weighed against these individual interests is the community's interest in fairly and accurately determining guilt or innocence. This interest is of course of great importance. We noted in Schmerber that a blood test is "a highly effective means of determining the degree to which a person is under the influence of alcohol." Id., at 771. Moreover, there was "a clear indication that in fact [desired] evidence [would] be found" if the blood test were undertaken. Id., at 770. Especially given the difficulty of proving drunkenness by other means, these considerations showed that results of the blood test were of vital importance if the State were to enforce its drunken driving laws. In Schmerber, we concluded that this state interest was sufficient to justify the intrusion, and the compelled blood test was thus "reasonable" for Fourth Amendment purposes.IIIApplying the Schmerber balancing test in this case, we believe that the Court of Appeals reached the correct result. The Commonwealth plainly had probable cause to conduct the search. In addition, all parties apparently agree that respondent has had a full measure of procedural protections and has been able fully to litigate the difficult medical and legal questions necessarily involved in analyzing the reasonableness of a surgical incision of this magnitude.6 Our inquiry therefore must focus on the extent of the intrusion on respondent's privacy interests and on the State's need for the evidence.The threats to the health or safety of respondent posed by the surgery are the subject of sharp dispute between the parties. Before the new revelations of October 18, the District Court found that the procedure could be carried out "with virtually no risk to [respondent]." 551 F. Supp., at 252. On rehearing, however, with new evidence before it, the District Court held that "the risks previously involved have increased in magnitude even as new risks are being added." Id., at 260.The Court of Appeals examined the medical evidence in the record and found that respondent would suffer some risks associated with the surgical procedure.7 One surgeon had testified that the difficulty of discovering the exact location of the bullet "could require extensive probing and retracting of the muscle tissue," carrying with it "the concomitant risks of injury to the muscle as well as injury to the nerves, blood vessels and other tissue in the chest and pleural cavity." 717 F.2d, at 900. The court further noted that "the greater intrusion and the larger incisions increase the risks of infection." Ibid. Moreover, there was conflict in the testimony concerning the nature and the scope of the operation. One surgeon stated that it would take 15-20 minutes, while another predicted the procedure could take up to two and one-half hours. Ibid. The court properly took the resulting uncertainty about the medical risks into account.8 Both lower courts in this case believed that the proposed surgery, which for purely medical reasons required the use of a general anesthetic,9 would be an "extensive" intrusion on respondent's personal privacy and bodily integrity. Ibid. When conducted with the consent of the patient, surgery requiring general anesthesia is not necessarily demeaning or intrusive. In such a case, the surgeon is carrying out the patient's own will concerning the patient's body and the patient's right to privacy is therefore preserved. In this case, however, the Court of Appeals noted that the Commonwealth proposes to take control of respondent's body, to "drug this citizen - not yet convicted of a criminal offense - with narcotics and barbiturates into a state of unconsciousness," id., at 901, and then to search beneath his skin for evidence of a crime. This kind of surgery involves a virtually total divestment of respondent's ordinary control over surgical probing beneath his skin.The other part of the balance concerns the Commonwealth's need to intrude into respondent's body to retrieve the bullet. The Commonwealth claims to need the bullet to demonstrate that it was fired from Watkinson's gun, which in turn would show that respondent was the robber who confronted Watkinson. However, although we recognize the difficulty of making determinations in advance as to the strength of the case against respondent, petitioners' assertions of a compelling need for the bullet are hardly persuasive. The very circumstances relied on in this case to demonstrate probable cause to believe that evidence will be found tend to vitiate the Commonwealth's need to compel respondent to undergo surgery. The Commonwealth has available substantial additional evidence that respondent was the individual who accosted Watkinson on the night of the robbery. No party in this case suggests that Watkinson's entirely spontaneous identification of respondent at the hospital would be inadmissible. In addition, petitioners can no doubt prove that Watkinson was found a few blocks from Watkinson's store shortly after the incident took place. And petitioners can certainly show that the location of the bullet (under respondent's left collarbone) seems to correlate with Watkinson's report that the robber "jerked" to the left. App. 13. The fact that the Commonwealth has available such substantial evidence of the origin of the bullet restricts the need for the Commonwealth to compel respondent to undergo the contemplated surgery.10 In weighing the various factors in this case, we therefore reach the same conclusion as the courts below. The operation sought will intrude substantially on respondent's protected interests. The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be "reasonable." In addition, the intrusion on respondent's privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that in these circumstances the Commonwealth has failed to demonstrate that it would be "reasonable" under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery. IVThe Fourth Amendment is a vital safeguard of the right of the citizen to be free from unreasonable governmental intrusions into any area in which he has a reasonable expectation of privacy. Where the Court has found a lesser expectation of privacy, see, e. g., Rakas v. Illinois, ; South Dakota v. Opperman, , or where the search involves a minimal intrusion on privacy interests, see, e. g., United States v. Hensley, ; Dunaway v. New York, 442 U.S., at 210-211; United States v. Brignoni-Ponce, ; Adams v. Williams, ; Terry v. Ohio, , the Court has held that the Fourth Amendment's protections are correspondingly less stringent. Conversely, however, the Fourth Amendment's command that searches be "reasonable" requires that when the State seeks to intrude upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search "reasonable." Applying these principles, we hold that the proposed search in this case would be "unreasonable" under the Fourth Amendment. Affirmed. JUSTICE BLACKMUN and JUSTICE REHNQUIST concur in the judgment. |
2 | Respondents were convicted under the Protection of Children Against Sexual Exploitation Act of 1977, which prohibits "knowingly" transporting, shipping, receiving, distributing, or reproducing a visual depiction, 18 U.S.C. 2252 (a)(1) and (2), if such depiction "involves the use of a minor engaging in sexually explicit conduct," 2252 (a)(1)(A) and (2)(A). In reversing, the Ninth Circuit held, inter alia, that 2252 was facially unconstitutional under the First Amendment because it did not require a showing that the defendant knew that one of the performers was a minor.Held: Because the term "knowingly" in 2252 (1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A), the Act is properly read to include a scienter requirement for age of minority. This Court rejects the most natural grammatical reading, adopted by the Ninth Circuit, under which "knowingly" modifies only the relevant verbs in subsections (1) and (2), and does not extend to the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. Some applications of that reading would sweep within the statute's ambit actors who had no idea that they were even dealing with sexually explicit material, an anomalous result that the Court will not assume Congress to have intended. Moreover, Morissette v. United States, , reinforced by Staples v. United States___, ___, instructs that the standard presumption in favor of a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct, and the minority status of the performers is the crucial element separating Page II legal innocence from wrongful conduct under 2252. The legislative history, although unclear as to whether Congress intended "knowingly" to extend to performer age, persuasively indicates that the word applies to the sexually explicit conduct depicted, and thereby demonstrates that "knowingly" is emancipated from merely modifying the verbs in subsections (1) and (2). As a matter of grammar, it is difficult to conclude that the word modifies one of the elements in (1)(A) and (2)(A), but not the other. This interpretation is supported by the canon that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions. Pp. 3-15. 982 F.2d 1285, reversed.REHNQUIST, C.J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 1] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U.S.C. 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii. [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 2] These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U.S.C. 2252 (a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U.S.C. 371.1 Evidence at trial suggested that Gottesman had full awareness of Lords' underage performances. United States v. Gottesman, No. CR 88-295KN, Findings of Fact § 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. A-39 ("Defendants knew that Traci Lords was underage when she made the films defendant's [sic] transported or shipped in interstate commerce"). The District Court convicted respondents of all three counts. On appeal, Gottesman argued inter alia that the Act was facially unconstitutional because it lacked a necessary scienter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F.2d 1066 (CA9), cert. denied, . In that case, the Ninth Circuit had held 2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found 2252 facially unconstitutional. The court first held that 18 U.S.C. 2256 met constitutional standards in setting the age of minority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F.2d 1285, [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 3] 1288-1289 (CA9 1992). It then discussed 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F.2d, at 1290, citing Smith v. California, ; New York v. Ferber, ; and Hamling v. United States, . The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F.2d at 1291. Because the court found the statute did not require such a showing, it reversed respondents' convictions. We granted certiorari___ (1994), and now reverse.Title 18 U.S.C. 2252 (1988 ed. and Supp. V) provides, in relevant part: "(a) Any person who - "(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if - "(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and "(B) such visual depiction is of such conduct; "(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 4] interstate or foreign commerce or through the mails, if - "(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and "(B) such visual depiction is of such conduct; ... . . shall be punished as provided in subsection (b) of this section. The critical determination which we must make is whether the term "knowingly" in subsections (1) and (2) modifies the phrase "the use of a minor" in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term "knowingly" modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word "knowingly" would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.If the term "knowingly" applies only to the relevant verbs in 2252 - transporting, shipping, receiving, distributing and reproducing - we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 5] would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package.Some applications of respondents' position would produce results that were not merely odd, but positively absurd. If we were to conclude that "knowingly" only modifies the relevant verbs in 2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer "knowingly distributes" a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by 2252, his residential successor could be prosecuted for "knowing receipt" of such materials. Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be "film" "knowingly transports" such film. We do not assume that Congress, in passing laws, intended such results. Public Citizen v. Department of Justice, ; United States v. Turkette, .Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in Morissette v. United States, , discussed the common law history of mens rea as applied to the elements of the federal embezzlement statute. [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 6] That statute read: "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States ... [s]hall be fined." 18 U.S.C. 641, cited in Morissette, 342 U.S., at 248, n. 2. Perhaps even more obviously than in the statute presently before us, the word "knowingly" in its isolated position suggested that it only attached to the verb "converts," and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term "knowingly" also required that the defendant have knowledge of the facts that made the taking a conversion - i.e., that the property belonged to the United States. Id., at 271. See also United States v. United States Gypsum Co., ("[F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement").Liparota v. United States, , posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute's use of "knowingly" could be read only to modify "uses, transfers, acquires, alters, or possesses" or it could be read also to modify "in any manner not authorized by [the statute]." Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, the Court held the scienter requirement applied to both elements by invoking the background principle set forth in Morissette. In addition, the Court was concerned with the broader reading which would "criminalize a broad range of apparently innocent conduct." 471 U.S., at 426. Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute. [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 7] The same analysis drove the recent conclusion in Staples v. United States___ (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machine gun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration. 26 U.S.C. 5861 (d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette, supra, at 255. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within "a long tradition of widespread lawful gun ownership by private individuals." Staples, 511 U.S., at ___ (slip op., at 10). The Court also emphasized the harsh penalties attaching to violations of the statute as a "significant consideration in determining whether the statute should be construed as dispensing with mens rea." Id., at ___ (slip op., at 16).Applying these principles, we think the Ninth Circuit's plain language reading of 2252 is not so plain. First, 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common law offenses against the "state, person, property, or public morals," Morissette, supra, at 255, that presume a scienter requirement in the absence of express contrary intent.2 Second, [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 8] Staples' concern with harsh penalties looms equally large respecting 2252: violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U.S.C. 2252 (b), 2253, 2254. See also Morissette, supra, at 260.Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements which criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration act was such an element. Its holding rested upon "the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items." Staples, supra, at ___ (slip op., at 20). Age of minority in 2252 indisputably possesses the same status as an elemental fact because non-obscene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States___ (1993) (slip op., at 4-5); Sable Communications of California, Inc. v. Federal Communications Commission, ; FW/PBS, Inc. v. Dallas, ; Smith v. California, 361 U.S., at 152.3 In the light of these decisions, one would reasonably [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 9] expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct.The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether "knowingly" in the statute modifies the elements of (1)(A) and (2)(A) - that the visual depiction involves the use of a minor engaging in sexually explicit conduct - or merely the verbs "transport or ship" in (1) and "receive or distribute ... [or] reproduce" in (2). In 1959 we held in Smith v. California, supra, that a California statute which dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. Id., at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e.g., 123 Cong. Rec. 30935 (1977) ("It is intended that they have knowledge of the type of material ... proscribed by this bill. The legislative history should be clear on that so as to remove any chance it will lead into constitutional problems"). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. Yates v. United States, ("In [construing the [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 10] statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked"). When first passed, 2252 punished one who "knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium" if it involved the use of a minor engaged in sexually explicit conduct. Pub. L. 95-225, 92 Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, "knowingly" was intended to modify "obscene" in the 1978 version.In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v. California, ,4 could be restricted without violating the First Amendment as explained by New York v. Ferber, . When Congress eliminated the adjective "obscene," all of the elements defining the character and content of the materials at issue were relegated to subsections (1)(a) and (2)(a). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene.The committee reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 2011, was rejected principally because it failed to distinguish [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 11] between obscene and non-obscene materials. S. Rep. No. 95-438, p. 12 (1977). In evaluating the proposal, the Justice Department offered its thoughts: "[T]he word `knowingly' in the second line of section 2251 is unnecessary and should be stricken... . Unless `knowingly' is deleted here, the bill might be subject to an interpretation requiring the Government to prove the defendant's knowledge of everything that follows `knowingly', including the age of the child. We assume it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen... . "On the other hand, the use of the word `knowingly' in subsection 2252 (a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant's knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved." Id., at 28-29 (emphasis added). Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all of the Department's suggestions; most notably, it restricted the prohibition in 2251 to obscene materials. Id., at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the committee eliminated 2252 [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 12] altogether. Ibid. At that juncture, Senator Roth introduced an amendment which would be another precursor of 2252. In one paragraph, the amendment forbade any person to "knowingly transport [or] ship ... [any] visual medium depicting a minor engaged in sexually explicit conduct." 123 Cong. Rec. 33047 (1977). In an exchange during debate, Senator Percy inquired:"Would this not mean that the distributor or seller must have either first, actual knowledge that the materials do contain child pornographic depictions or, second, circumstances must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?" Id., at 33050. Senator Roth replied:"That is absolutely correct. This amendment limited as it is by the phrase `knowingly,' insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography ... are subject to prosecution... ." Ibid. The parallel House bill did not contain a comparable provision to 2252 of the Senate bill, and limited 2251 prosecutions to obscene materials. The Conference Committee adopted the substance of the Roth Amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the 2252 provision somewhat, setting off the age of minority requirement in a separate sub-clause. S. Conf. Rep. No. 95-601, p. 2 (1977). Most importantly, the new bill retained the adverb "knowingly" in 2252 while simultaneously [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 13] deleting the word "knowingly" from 2251 (a). The Conference Committee explained the deletion in 2251 (a) as reflecting an "intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child." Id., at 5.5 Respondents point to the appearance of knowingly in 2251 (c) and argue that 2252 ought to be read like 2251. But this argument depends on the conclusion that 2252 (c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from 2251(a). Because 2251 (a) and 2251 (c) were passed at different times and contain different wording, the intent to exclude scienter from 2251 (a) does not imply an intent to exclude scienter from 2251 (c).6 [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 14] The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term "knowingly" apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term "knowingly" applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is difficult to conclude that the word "knowingly" modifies one of the elements in (1)(A) and (2)(A), but not the other.A final canon of statutory construction supports the reading that the term "knowingly" applies to both elements. Cases such as Ferber, 458 U.S., at 765 ("As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant"); Smith v. California, ; Hamling v. United States, ; and Osborne v. Ohio, , suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf [ UNITED STATES v. X-CITEMENT VIDEO, INC., ___ U.S. ___ (1994), 15] Coast Building & Construction Trades Council, .For all of the foregoing reasons, we conclude that the term "knowingly" in 2252 extends both to the sexually explicit nature of the material and to the age of the performers.As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U.S.C. 2256. These claims were not encompassed in the question on which this Court granted certiorari, but a prevailing party, without cross-petitioning, is "entitled under our precedents to urge any grounds which would lend support to the judgment below." Dayton Bd. of Ed. v. Brinkman, . Respondents argue that section 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New York v. Ferber, supra, and because Congress replaced the term "lewd" with the term "lascivious" in defining illegal exhibition of the genitals of children. We regard these claims as insubstantial, and reject them for the reasons stated by the Court of Appeals in its opinion in this case.Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue because of its determination that 2252 was unconstitutional on its face, and we decline to decide it here.The judgment of the Court of Appeals is Reversed. |
8 | District Court's judgment dismissing appellant railway employees' complaint to set aside in part Interstate Commerce Commission railroad merger orders for failure to protect employees' interests under certain provisions of a collective bargaining agreement vacated insofar as that judgment relates to those provisions, with instructions to remand case to ICC for clarification of orders. 226 F. Supp. 521, vacated and remanded.Clarence M. Mulholland, Edward J. Hickey, Jr., James L. Highsaw, Jr., William G. Mahoney and William H. King for appellants.Solicitor General Cox, Assistant Attorney General Orrick, Philip B. Heymann, Robert B. Hummel and Elliott Moyer for the United States; Robert W. Ginnane and Leonard S. Goodman for Interstate Commerce Commission; and Hugh B. Cox, W. Graham Claytor, Jr., and Richard S. Arnold for Southern Railway Co. et al., appellees.PER CURIAM.This appeal is from a judgment of a three-judge District Court, 226 F. Supp. 521, dismissing appellants' complaint to set aside orders of the Interstate Commerce Commission, 317 I. C. C. 557, 729, relating to the Southern Railway Company's acquisition of control through stock ownership of the Central of Georgia Railway Company. Appellants, representing railway employees, object that under the Commission's orders, the employees are not protected as provided by 4, 5, and 9 of the Washington Job Protection Agreement. We agree with the suggestion of the Solicitor General that this case should be remanded to the Interstate Commerce Commission for clarification of its orders insofar as they relate to the agreement. For this reason, the motion of the Interstate Commerce Commission to affirm the judgment of the District Court is denied. The motion of intervenor-appellees Southern Railway Company and Central of Georgia Railway Company to defer consideration of the jurisdictional statement is denied. Appellants' motion to limit the appeal to questions related to 4, 5, and 9 of the Washington Job Protection Agreement is granted. The judgment of the District Court is vacated insofar as it relates to 4, 5, and 9 of the Washington Agreement, and this case is remanded to that court with instructions to remand it to the Interstate Commerce Commission with instructions to amend its reports and orders as necessary to deal with appellants' request that 4, 5, and 9 be included as protective conditions, specifically indicating why each of these provisions is either omitted or included. See United States v. Chicago, M., St. P. & Pac. R. Co., . Vacated and remanded. |
1 | Pursuant to a contract with an organization of petitioner White Mountain Apache Tribe, petitioner Pinetop Logging Co. (Pinetop), a non-Indian enterprise authorized to do business in Arizona, felled tribal timber on the Fort Apache Reservation and transported it to the tribal organization's sawmill. Pinetop's activities were performed solely on the reservation. Respondents, state agencies and members thereof, sought to impose on Pinetop Arizona's motor carrier license tax, which is assessed on the basis of the carrier's gross receipts, and its use fuel tax, which is assessed on the basis of diesel fuel used to propel a motor vehicle on any highway within the State. Pinetop paid the taxes under protest and then brought suit in state court, asserting that under federal law the taxes could not lawfully be imposed on logging activities conducted exclusively within the reservation or on hauling activities on Bureau of Indian Affairs (BIA) and tribal roads. The trial court awarded summary judgment to respondents, and the Arizona Court of Appeals affirmed in pertinent part, rejecting petitioners' pre-emption claim.Held: The Arizona taxes are pre-empted by federal law. Cf. Warren Trading Post Co. v. Arizona Tax Comm'n, . Pp. 141-153. (a) The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law. Where, as here, a State asserts authority over the conduct of non-Indians engaging in activity on the reservation, a particularized inquiry must be made into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. Pp. 141-145. (b) The Federal Government's regulation of the harvesting, sale, and management of tribal timber, and of the BIA and tribal roads, is so pervasive as to preclude the additional burdens sought to be imposed here by assessing the taxes in question against Pinetop for operations that are conducted solely on BIA and tribal roads within the reservation. Pp. 145-149. (c) Imposition of the taxes in question would undermine the federal policy of assuring that the profits from timber sales would inure to the Tribe's benefit; would also undermine the Secretary of the Interior's ability to make the wide range of determinations committed to his authority concerning the setting of fees and rates with respect to the harvesting and sale of tribal timber; and would adversely affect the Tribe's ability to comply with the sustained-yield management policies imposed by federal law. Pp. 149-150. (d) Respondents' generalized interest in raising revenue is insufficient, in the context of this case, to permit its proposed intrusion into the federal regulatory scheme with respect to the harvesting and sale of tribal timber. P. 150. 120 Ariz. 282, 585 P.2d 891, reversed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 170. STEVENS, J., filed a dissenting opinion, in which STEWART and REHNQUIST, JJ., joined, post, p. 153.Neil Vincent Wake argued the cause for petitioner Pinetop Logging Co. Michael J. Brown argued the cause for petitioner White Mountain Apache Tribe. With them on the briefs were Leo R. Beus and Kathleen A. Rihr.Ian A. Macpherson, Assistant Attorney General of Arizona, argued the cause for respondents. With him on the brief were Robert K. Corbin, Attorney General, and Anthony B. Ching, Solicitor General.Elinor Hadley Stillman argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, and Robert L. Klarquist.MR. JUSTICE MARSHALL delivered the opinion of the Court.In this case we are once again called upon to consider the extent of state authority over the activities of non-Indians engaged in commerce on an Indian reservation. The State of Arizona seeks to apply its motor carrier license and use fuel taxes to petitioner Pinetop Logging Co. (Pinetop), an enterprise consisting of two non-Indian corporations authorized to do business in Arizona and operating solely on the Fort Apache Reservation. Pinetop and petitioner White Mountain Apache Tribe contend that the taxes are pre-empted by federal law or, alternatively, that they represent an unlawful infringement on tribal self-government. The Arizona Court of Appeals rejected petitioners' claims. We hold that the taxes are pre-empted by federal law, and we therefore reverse.IThe 6,500 members of petitioner white Mountain Apache Tribe reside on the Fort Apache Reservation in a mountainous and forested region of northeastern Arizona.1 The Tribe is organized under a constitution approved by the Secretary of the Interior under the Indian Reorganization Act, 25 U.S.C. 476. The revenue used to fund the Tribe's governmental programs is derived almost exclusively from tribal enterprises. Of these enterprises, timber operations have proved by far the most important, accounting for over 90% of the Tribe's total annual profits.2 The Fort Apache Reservation occupies over 1,650,000 acres, including 720,000 acres of commercial forest. Approximately 300,000 acres are used for the harvesting of timber on a "sustained yield" basis, permitting each area to be cut every 20 years without endangering the forest's continuing productivity. Under federal law, timber on reservation land is owned by the United States for the benefit of the Tribe and cannot be harvested for sale without the consent of Congress. Acting under the authority of 25 CFR 141.6 (1979) and the tribal constitution, and with the specific approval of the Secretary of the Interior, the Tribe in 1964 organized the Fort Apache Timber Co. (FATCO), a tribal enterprise that manages, harvests, processes, and sells timber. FATCO, which conducts all of its activities on the reservation, was created with the aid of federal funds. It employs about 300 tribal members.The United States has entered into contracts with FATCO, authorizing it to harvest timber pursuant to regulations of the Bureau of Indian Affairs. FATCO has itself contracted with six logging companies, including Pinetop, which perform certain operations that FATCO could not carry out as economically on its own.3 Since it first entered into agreements with FATCO in 1969. Pinetop has been required to fell trees, cut them to the correct size, and transport them to FATCO's sawmill in return for a contractually specified fee. Pinetop employs approximately 50 tribal members. Its activities, performed solely on the Fort Apache Reservation, are subject to extensive federal control.In 1971 respondents4 sought to impose on Pinetop the two state taxes at issue here. The first, a motor carrier license tax, is assessed on "[e]very common motor carrier of property and every contract motor carrier of property." Ariz. Rev. Stat. Ann. 40-641 (A) (1) (Supp. 1979). Pinetop is a "contract motor carrier of property" since it is engaged in "the transportation by motor vehicle of property, for compensation, on any public highway." 40-601 (A) (1) (1974). The motor carrier license tax amounts to 2.5% of the carrier's gross receipts. 40-641 (A) (1) (Supp. 1979). The second tax at issue is an excise or use fuel tax designed "[f]or the purpose of partially compensating the state for the use of its highway." Ariz. Rev. Stat. Ann. 28-1552 (Supp. 1979). The tax amounts to eight cents per gallon of fuel used "in the propulsion of a motor vehicle on any highway within this state." Ibid. The use fuel tax was assessed on Pinetop because it uses diesel fuel to propel its vehicles on the state highways within the Fort Apache Reservation.Pinetop paid the taxes under protest,5 and then brought suit in state court, asserting that under federal law the taxes could not lawfully be imposed on logging activities conducted exclusively within the reservation or on hauling activities on Bureau of Indian Affairs and tribal roads.6 The Tribe agreed to reimburse Pinetop for any tax liability incurred as a result of its on-reservation business activities, and the Tribe intervened in the action as a plaintiff.7 Both petitioners and respondents moved for summary judgment on the issue of the applicability of the two taxes to Pinetop. Petitioners submitted supporting affidavits from the manager of FATCO, the head forester of the Bureau of Indian Affairs, and the Chairman of the White Mountain Apache Tribal Council; respondents offered no affidavits disputing the factual assertions by petitioners' affiants. The trial court awarded summary judgment to respondents,8 and the petitioners appealed to the Arizona Court of Appeals. The Court of Appeals rejected petitioners' pre-emption claim. 120 Ariz. 282, 585 P.2d 891 (1978). Purporting to apply the test set forth in Pennsylvania v. Nelson, , the court held that the taxes did not conflict with federal regulation of tribal timber, that the federal interest was not so dominant as to preclude assessment of the challenged state taxes, and that the federal regulatory scheme did not "occupy the field." The court also concluded that the state taxes would not unlawfully infringe on tribal self-government. The Arizona Supreme Court declined to review the decision of the Court of Appeals. We granted certiorari. .IIAlthough "[g]eneralizations on this subject have become ... treacherous," Mescalero Apache Tribe v. Jones, , our decisions establish several basic principles with respect to the boundaries between state regulatory authority and tribal self-government. Long ago the Court departed from Mr. Chief Justice Marshall's view that "the laws of [a State] can have no force" within reservation boundaries, Worcester v. Georgia, 6 Pet. 515, 561 (1832).9 See Moe v. Salish & Kootenai Tribes, (1976); New York ex rel. Ray v. Martin, ; Utah & Northern R. Co. v. Fisher, . At the same time we have recognized that the Indian tribes retain "attributes of sovereignty over both their members and their territory." United States v. Mazurie, . See also United States v. Wheeler, ; Santa Clara Pueblo v. Martinez, . As a result, there is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members. The status of the tribes has been described as "`an anomalous one and of complex character,'" for despite their partial assimilation into American culture, the tribes have retained "`a semi-independent position ... not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.'" McClanahan v. Arizona State Tax Comm'n, , quoting United States v. Kagama, .Congress has broad power to regulate tribal affairs under the Indian Commerce Clause, Art. 1, 8, cl. 3. See United States v. Wheeler, supra, at 322-323. This congressional authority and the "semi-independent position" of Indian tribes have given rise to two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members. First, the exercise of such authority may be pre-empted by federal law. See, e.g., Warren Trading Post Co. v. Arizona Tax Comm'n, ; McClanahan v. Arizona State Tax Comm'n, supra. Second, it may unlawfully infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, . See also Washington v. Yakima Indian Nation, ; Fisher v. District Court, (per curiam); Kennerly v. District Court of Montana, . The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. They are related, however, in two important ways. The right of tribal self-government is ultimately dependent on and subject to the broad power of Congress. Even so, traditional notions of Indian self-government are so deeply engrained in our jurisprudence that they have provided an important "backdrop," McClanahan v. Arizona State Tax Comm'n, supra, at 172, against which vague or ambiguous federal enactments must always be measured.The unique historical origins of tribal sovereignty make it generally unhelpful to apply to federal enactments regulating Indian tribes those standards of pre-emption that have emerged in other areas of the law. Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it treacherous to import to one notions of pre-emption that are properly applied to the other. The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law. Moe v. Salish & Kootenai Tribes, supra, at 475. As we have repeatedly recognized, this tradition is reflected and encouraged in a number of congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.10 Ambiguities in federal law have been construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence. See McClanahan v. Arizona State Tax Comm'n, supra, at 174-175, and n. 13. We have thus rejected the proposition that in order to find a particular state law to have been pre-empted by operation of federal law, an express congressional statement to that effect is required.11 Warren Trading Post Co. v. Arizona Tax Comm'n, supra. At the same time any applicable regulatory interest of the State must be given weight, McClanahan v. Arizona State Tax Comm'n, supra, at 171, and "automatic exemptions `as a matter of constitutional law'" are unusual. Moe v. Salish & Kootenai Tribes, 425 U.S., at 481, n. 17.When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest. See Moe v. Salish & Kootenai Tribes, supra, at 480-481; McClanahan v. Arizona State Tax Comm'n. More difficult questions arise where, as here, a State asserts authority over the conduct of non-Indians engaging in activity on the reservation. In such cases we have examined the language of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence. This inquiry is not dependent on mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. Compare Warren Trading Post Co. v. Arizona Tax Comm'n, supra, and Williams v. Lee, supra, with Moe v. Salish & Kootenai Tribes, supra, and Thomas v. Gay, . Cf. McClanahan v. Arizona State Tax Comm'n, 411 U.S., at 171; Mescalero Apache Tribe v. Jones, 411 U.S., at 148.IIIWith these principles in mind, we turn to the respondents' claim that they may, consistent with federal law, impose the contested motor vehicle license and use fuel taxes on the logging and hauling operations of petitioner Pinetop. At the outset we observe that the Federal Government's regulation of the harvesting of Indian timber is comprehensive. That regulation takes the form of Acts of Congress, detailed regulations promulgated by the Secretary of the Interior, and day-to-day supervision by the Bureau of Indian Affairs. Under 25 U.S.C. 405-407, the Secretary of the Interior is granted broad authority over the sale of timber on the reservation.12 Timber on Indian land may be sold only with the consent of the Secretary, and the proceeds from any such sales, less administrative expenses incurred by the Federal Government, are to be used for the benefit of the Indians or transferred to the Indian owner. Sales of timber must "be based upon a consideration of the needs and best interests of the Indian owner and his heirs." 25 U.S.C. 406 (a). The statute specifies the factors which the Secretary must consider in making that determination.13 In order to assure the continued productivity of timber-producing land on tribal reservations, timber on unallotted lands "may be sold in accordance with the principles of sustained yield." 25 U.S.C. 407. The Secretary is granted power to determine the disposition of the proceeds from timber sales. He is authorized to promulgate regulations for the operation and management of Indian forestry units. 25 U.S.C. 466.Acting pursuant to this authority, the Secretary has promulgated a detailed set of regulations to govern the harvesting and sale of tribal timber. Among the stated objectives of the regulations is the "development of Indian forests by the Indian people for the purpose of promoting self-sustaining communities, to the end that the Indians may receive from their own property not only the stumpage value, but also the benefit of whatever profit it is capable of yielding and whatever labor the Indians are qualified to perform." 25 CFR 141.3 (a) (3) (1979). The regulations cover a wide variety of matters: for example, they restrict clear-cutting, 141.5; establish comprehensive guidelines for the sale of timber, 141.7; regulate the advertising of timber sales, 141.8, 141.9; specify the manner in which bids may be accepted and rejected, 141.11; describe the circumstances in which contracts may be entered into, 141.12, 141.13; require the approval of all contracts by the Secretary, 141.13; call for timber-cutting permits to be approved by the Secretary, 141.19; specify fire protective measures, 141.21; and provide a board of administrative appeals, 141.23. Tribes are expressly authorized to establish commercial enterprises for the harvesting and logging of tribal timber. 141.6.Under these regulations, the Bureau of Indian Affairs exercises literally daily supervision over the harvesting and management of tribal timber. In the present case, contracts between FATCO and Pinetop must be approved by the Bureau; indeed, the record shows that some of those contracts were drafted by employees of the Federal Government. Bureau employees regulate the cutting, hauling, and marking of timber by FATCO and Pinetop. The Bureau decides such matters as how much timber will be cut, which trees will be felled, which roads are to be used, which hauling equipment Pinetop should employ, the speeds at which logging equipment may travel, and the width, length, height, and weight of loads.The Secretary has also promulgated detailed regulations governing the roads developed by the Bureau of Indian Affairs. 25 CFR Part 162 (1979). Bureau roads are open to "[f]ree public use." 162.8. Their administration and maintenance are funded by the Federal Government, with contributions from the Indian tribes. 162.6-162.6a. On the Fort Apache Reservation the Forestry Department of the Bureau has required FATCO and its contractors, including Pinetop, to repair and maintain existing Bureau and tribal roads and in some cases to construct new logging roads. Substantial sums have been spent for these purposes. In its federally approved contract with FATCO, Pinetop has agreed to construct new roads and to repair existing ones. A high percentage of Pinetop's receipts are expended for those purposes, and it has maintained separate personnel and equipment to carry out a variety of tasks relating to road maintenance.In these circumstances we agree with petitioners that the federal regulatory scheme is so pervasive as to preclude the additional burdens sought to be imposed in this case. Respondents seek to apply their motor vehicle license and use fuel taxes on Pinetop for operations that are conducted solely on Bureau and tribal roads within the reservation.14 There is no room for these taxes in the comprehensive federal regulatory scheme. In a variety of ways, the assessment of state taxes would obstruct federal policies. And equally important, respondents have been unable to identify any regulatory function or service performed by the State that would justify the assessment of taxes for activities on Bureau and tribal roads within the reservation.At the most general level, the taxes would threaten the overriding federal objective of guaranteeing Indians that they will "receive ... the benefit of whatever profit [the forest] is capable of yielding... ." 25 CFR 141.3 (a) (3) (1979). Underlying the federal regulatory program rests a policy of assuring that the profits derived from timber sales will inure to the benefit of the Tribe, subject only to administrative expenses incurred by the Federal Government. That objective is part of the general federal policy of encouraging tribes "to revitalize their self-government" and to assume control over their "business and economic affairs." Mescalero Apache Tribe v. Jones, 411 U.S., at 151. The imposition of the taxes at issue would undermine that policy in a context in which the Federal Government has undertaken to regulate the most minute details of timber production and expressed a firm desire that the Tribe should retain the benefits derived from the harvesting and sale of reservation timber.In addition, the taxes would undermine the Secretary's ability to make the wide range of determinations committed to his authority concerning the setting of fees and rates with respect to the harvesting and sale of tribal timber. The Secretary reviews and approves the terms of the Tribe's agreements with its contractors, sets fees for services rendered to the Tribe by the Federal Government, and determines stumpage rates for timber to be paid to the Tribe. Most notably in reviewing or writing the terms of the contracts between FATCO and its contractors, federal agents must predict the amount and determine the proper allocation of all business expenses, including fuel costs. The assessment of state taxes would throw additional factors into the federal calculus, reducing tribal revenues and diminishing the profitability of the enterprise for potential contractors.Finally, the imposition of state taxes would adversely affect the Tribe's ability to comply with the sustained-yield management policies imposed by federal law. Substantial expenditures are paid out by the Federal Government, the Tribe, and its contractors in order to undertake a wide variety of measures to ensure the continued productivity of the forest. These measures include reforestation, fire control, wildlife promotion, road improvement, safety inspections, and general policing of the forest. The expenditures are largely paid for out of tribal revenues, which are in turn derived almost exclusively from the sale of timber. The imposition of state taxes on FATCO's contractors would effectively diminish the amount of those revenues and thus leave the Tribe and its contractors with reduced sums with which to pay out federally required expenses.As noted above, this is not a case in which the State seeks to assess taxes in return for governmental functions it performs for those on whom the taxes fall. Nor have respondents been able to identify a legitimate regulatory interest served by the taxes they seek to impose. They refer to a general desire to raise revenue, but we are unable to discern a responsibility or service that justifies the assertion of taxes imposed for on-reservation operations conducted solely on tribal and Bureau of Indians Affairs roads. Pinetop's business in Arizona is conducted solely on the Fort Apache Reservation. Though at least the use fuel tax purports to "compensat[e] the state for the use of its highways," Ariz. Rev. Stat. Ann. 28-1552 (Supp. 1979), no such compensatory purpose is present here. The roads at issue have been built, maintained, and policed exclusively by the Federal Government, the Tribe, and its contractors. We do not believe that respondents' generalized interest in raising revenue is in this context sufficient to permit its proposed intrusion into the federal regulatory scheme with respect to the harvesting and sale of tribal timber.Respondents' argument is reduced to a claim that they may assess taxes on non-Indians engaged in commerce on the reservation whenever there is no express congressional statement to the contrary. That is simply not the law. In a number of cases we have held that state authority over non-Indians acting on tribal reservations is pre-empted even though Congress has offered no explicit statement on the subject. See Warren Trading Post Co. v. Arizona Tax Comm'n, ; Williams v. Lee, ; Kennerly v. District Court of Montana, . The Court has repeatedly emphasized that there is a significant geographical component to tribal sovereignty, a component which remains highly relevant to the pre-emption inquiry; though the reservation boundary is not absolute, it remains an important factor to weigh in determining whether state authority has exceeded the permissible limits. "`The cases in this Court have consistently guarded the authority of Indian governments over their reservations.'" United States v. Mazurie, 419 U.S., at 558, quoting Williams v. Lee, supra, at 223. Moreover, it is undisputed that the economic burden of the asserted taxes will ultimately fall on the Tribe.15 Where, as here, the Federal Government has undertaken comprehensive regulation of the harvesting and sale of tribal timber, where a number of the policies underlying the federal regulatory scheme are threatened by the taxes respondents seek to impose, and where respondents are unable to justify the taxes except in terms of a generalized interest in raising revenue, we believe that the proposed exercise of state authority is impermissible.16 Both the reasoning and result in this case follow naturally from our unanimous decision in Warren Trading Post Co. v. Arizona Tax Comm'n, supra. There the State of Arizona sought to impose a "gross proceeds" tax on a non-Indian company which conducted a retail trading business on the Navajo Indian Reservation. Referring to the tradition of sovereign power over the reservation, the Court held that the "comprehensive federal regulation of Indian traders" prohibited the assessment of the attempted taxes. Id., at 688. No federal statute by its terms precluded the assessment of state tax. Nonetheless, the "detailed regulations," specifying "in the most minute fashion," id., at 689, the licensing and regulation of Indian traders, were held "to show that Congress has taken the business of Indian trading of reservations so fully in hand that no room remains for state laws imposing additional burdens upon traders." Id., at 690. The imposition of those burdens, we held, "could ... disturb and disarrange the statutory plan" because the economic burden of the state taxes would eventually be passed on to the Indians themselves. Id., at 691. We referred to the fact that the Tribe had been "largely free to run the reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities." Id., at 690. And we emphasized that "since federal legislation has left the State with no duties or responsibilities respecting the reservation Indians, we cannot believe that Congress intended to leave to the State the privilege of levying this tax." Id., at 691. The present case, we conclude, is in all relevant respects indistinguishable from Warren Trading Post.The decision of the Arizona Court of Appeals is Reversed. [For concurring opinion of MR. JUSTICE POWELL, see post, p. 170.] |
7 | Respondent filed a declaration of intention with the Federal Power Commission (FPC) pursuant to 23 (b) of the Federal Power Act to construct a pumped storage plant on a nonnavigable tributary of a navigable stream. A pumped storage plant uses power during periods of nonpeak demands to pump water to an upper pool to be used to generate peak-period energy by water falling into a lower pool. The FPC found that the nonnavigable tributary is a stream over which Congress has jurisdiction as it is a headwater of a navigable river system. The FPC held that the project would require a license under 23 (b) because it would use water power for the interstate transmission of electricity and because it would affect downstream navigability. The Court of Appeals reversed, finding that the only relevant "commerce" under 23 (b) is that on the downstream navigable waterway and that the project would have no significant impact on water commerce. Held: 1. The commerce power of Congress clearly encompasses the interstate transmission of electric energy, and the project here is within the purview of that power, without regard to federal control of tributary streams and navigation. P. 94. 2. The language of the licensing requirement of 23 (b) invokes the full congressional authority over commerce and not merely the regulation of navigation or water commerce. Pp. 95-98. 3. The purposes of the predecessor statute, the Federal Water Power Act, which included the comprehensive development of water power and hydroelectric energy, are more fully served by considering the impact of the project on the full range of commerce interests. Pp. 98-109. 4. Since the original Federal Water Power Act was concerned with the utilization of water resources and particularly the power potential in water, there is no anomaly in the FPC's position that steam plants generating energy for interstate transmission are not within the scope of 23 (b), although located on a stream over which Congress has jurisdiction, while similar hydroelectric facilities are covered by 23 (b). Pp. 109-110. 326 F.2d 535, reversed.Ralph S. Spritzer argued the cause for petitioner. With him on the brief were Solicitor General Cox, Frank Goodman, Richard A. Solomon and Howard E. Wahrenbrock.Robert J. Keefe argued the cause for respondent. With him on the brief was Robert F. Schlafly.MR. JUSTICE WHITE delivered the opinion of the Court.Section 23 (b)1 of the Federal Power Act2 requires any person desiring to construct a dam or other project on a nonnavigable stream, but one over which Congress has jurisdiction under its authority to regulate commerce, to file a declaration of intention with the Federal Power Commission. If the Commission finds that "the interests of interstate or foreign commerce would be affected by such proposed construction," the declarant may not construct or operate the project without a license. The issue here is whether the construction of a pumped storage hydroelectric project generating energy for interstate transmission is one which would affect the "interests of interstate or foreign commerce" within the intendment of the Act. I.Respondent Union Electric Co. (Union), operating generating plants and an interconnected transmission and distribution system in Missouri, Illinois, and Iowa, filed a declaration of intention pursuant to 23 (b) to construct a pumped storage hydroelectric facility, the Taum Sauk installation, as a part of Union's interstate system. The pumped storage plant, an engineering innovation of growing use, is to supplement the energy produced by other plants during periods of peak demands. During such periods it generates energy through use of hydroelectric units driven by water falling from an elevated reservoir into a lower pool.3 During off-peak periods it uses energy from other sources to pump water from the lower pool back to the headwater pool.4 The project is capable of creating up to 350 megawatts and the energy created will be utilized in Missouri, Illinois, and possibly Iowa. Taum Sauk is to be located on the East Fork of the Black River, about four miles above the confluence of these waters.5 The East Fork is a nonnavigable tributary of the Black River, itself a navigable stream along with the White River into which it flows.The FPC found the East Fork was a stream "over which Congress has jurisdiction under its authority to regulate commerce," since it is a headwater of a navigable river system. The project would affect the interests of commerce and would require a license, the FPC also held, both because it contemplated the utilization of water power for the interstate transmission of electricity and because it would affect downstream navigability, 27 F. P. C. 801. The Court of Appeals reversed, 326 F.2d 535 (C. A. 8th Cir.) holding that the only "commerce" which is relevant to the FPC's determination under 23 (b) is commerce on the downstream navigable waterway and that the project in question would have no significant impact on water commerce.6 Absent an effect on downstream navigability, or on irrigation development, flood control projects or planned utilization of water resources, matters which might affect the interests of water commerce, a water power project located on the headwaters of a navigable river is a "local" activity beyond the licensing power and consequent regulatory controls of the FPC. Because the question is an unresolved one of jurisdiction over an important class of hydroelectric projects, we granted certiorari, , and now reverse the judgment of the Court of Appeals. We have determined that its limitation of the FPC's licensing power to projects affecting commerce on navigable waters is founded upon an erroneous reading of the language of 23 (b) and the design and purposes of the Federal Water Power Act.II.To focus the inquiry, it is well to state what is not involved in this case. There is no question that the interstate transmission of electric energy is fully subject to the commerce powers of Congress. Public Utilities Comm'n v. Attleboro Steam & Elec. Co., ; Electric Bond & Share Co. v. Securities & Exchange Comm'n, . Nor is there any doubt today that projects generating energy for such transmission, such as Taum Sauk, affect commerce among the States and therefore are within the purview of the commerce power, quite without regard to the federal control of tributary streams and navigation. See Labor Board v. Jones & Laughlin Steel Corp., ; Labor Board v. Fruehauf Trailer Co., ; Consolidated Edison v. Labor Board, ; Katzenbach v. McClung, . But see United States v. Appalachian Power Co., 107 F.2d 769, rev'd on other grounds, .7 Thus, there are no constitutional doubts or barriers to the FPC's interpretation. The only question is whether Congress has required a license for a water power project utilizing the headwaters of a navigable river to generate energy for an interstate power system. We think an affirmative answer is required by both the language and purposes of the Act.The language of the Act, in our view, plainly requires a license in the circumstances of this case. Section 23 (b)8 prohibits construction of nonlicensed hydroelectric projects on navigable streams, regardless of any effect, detrimental or beneficial, on navigation or commerce by water and requires those proposing a project on a nonnavigable stream to file a declaration of intention and to come before the Commission for a determination of whether the "interests of interstate or foreign commerce would be affected." a determination which obviously does not speak in terms of the interests of navigation or water commerce. Plainly the provision does not require a license only where "the interests of interstate or foreign commerce on navigable waters would be affected." Although transportation on interstate waterways is interstate commerce, the phrase "affect the interests of commerce" on its face hardly supports any claim that Congress sought to regulate only such transportation. Rather, it strongly implies that Congress drew upon its full authority under the Commerce Clause, including but not limited to its power over water commerce. "[H]alf a dozen enactments, other than the National Labor Relations Act, are sufficient to illustrate that when [Congress] wants to bring aspects of commerce within the full sweep of its constitutional authority, it manifests its purpose by regulating not only `commerce' but also matters which `affect,' `interrupt,' or `promote' interstate commerce... . In so describing the range of its control. Congress is not indulging stylistic preferences." Polish National Alliance v. Labor Board, .The scope of this language is not restricted by the earlier clause in 23 (b) limiting the filing requirements to projects on nonnavigable streams "over which Congress has jurisdiction under its authority to regulate commerce" that is, tributaries of river systems necessitating supervisory power to preserve or improve downstream navigability or water commerce generally. See United States v. Rio Grande Dam & Irrigation Co., ; Phillips v. Guy F. Atkinson Co., . This language merely designates those who must file a declaration of intention - all those who would locate a water power project on a nonnavigable stream within the jurisdiction of Congress are required to declare their intention so that the Commission may determine the necessity for a license. Congress then proceeds to invoke its full authority over commerce, without qualification, to define what projects on nonnavigable streams are required to be licensed. Respondent asserts that commerce must mean the same thing in both the filing and licensing requirements of 23 (b); because of the allusion to water commerce in the filing provision, the Commission's inquiry into the effect of the project on commerce must be limited to the source of Congress' power over the stream. Nothing in the structure or syntax of 23 (b) compels this conclusion. Indeed, in describing in distinct terms the standard for who must file and what must be licensed,9 the more compelling inference is that Congress intended the inquiry into the project's effect on commerce to include, but not be limited to, effect on downstream navigability.10 Turning to the purposes of the Federal Water Power Act, enacted in 1920, we find nothing which casts serious doubt upon our reading of 23 (b) or which indicates that the Commission was to restrict its considerations under 23 (b) to effect on navigability. There is much to indicate the contrary.The central purpose of the Federal Water Power Act was to provide for the comprehensive control over those uses of the Nation's water resources in which the Federal Government had a legitimate interest; these uses included navigation, irrigation, flood control, and, very prominently, hydroelectric power - uses which, while unregulated, might well be contradictory rather than harmonious.11 Prior legislation in 1890 and the Rivers and Harbors Act of 1899,12 prohibiting the erection of any obstruction to navigation, including those on nonnavigable feeders, United States v. Rio Grande Dam & Irrigation Co., , and requiring the consent of Congress and approval of the Secretary of War before constructing a bridge, dam, or dike along or in navigable waters, was thought inadequate, for it accommodated only the federal interest in navigation. As this Court has had occasion to note before, the 1920 Federal Water Power Act "was the outgrowth of a widely supported effort of the conservationists to secure enactment of a complete scheme of national regulation which would promote the comprehensive development of the water resources of the Nation, in so far as it was within the reach of the federal power to do so ... ." First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, . The principal use to be developed and regulated in the Act, as its title indicates, was that of hydroelectric power to meet the needs of an expanding economy.13 The provisions of the Act reflect these objectives. The preface states that besides navigation and the creation of the Commission, the Act was "to provide for the ... development of water power; the use of the public lands in relation thereto ... and for other purposes." 41 Stat. 1063. Section 10 (a), as amended, requires as a condition for obtaining a license that the proposed project "be such as in the judgment of the Commission will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for the use or benefit of interstate or foreign commerce, for the improvement and utilization of water-power development, and for other beneficial public uses ... ."14 Other provisions regulate the operations, services, charges, and duration of hydroelectric plants,15 "provisions ... not essential to or even concerned with navigation as such," but which "have an obvious relationship to the exercise of the commerce power." United States v. Appalachian Power Co., , 427. In order to insure comprehensive control over the utilization of the Nation's waterways, "navigable stream" was broadly defined to include the interrupting falls shallows, rapids and the waterways authorized by or recommended to Congress for improvement;16 and other recognized sources of federal authority were invoked, such as jurisdiction over public lands and national forests.17 If the comprehensive development of water power, "in so far as it was within the reach of the federal power to do so," First Iowa Hydro-Electric Coop. v. Federal Power Comm'n, 328 U.S., at 180, was the central thrust of the Act, there is obviously little merit to the argument that 23 (b) requires a license when the interests of water commerce are affected but dispenses with the license when other commerce interests are vitally involved. The purposes of the Act are more fully served if the Commission must, as it held in this case, consider the impact of the project on the full spectrum of commerce interests.III.Union's earnest position, however, is that the legislative history of the Act reveals a more limited purpose and requires a narrower construction of 23 (b). The core of the argument is that the constitutional basis for the Act generally and for 23 (b) in particular was the authority of Congress over navigation, that Congress invoked only this power, and no other, and that 23 (b) accordingly provides for no greater control over projects on nonnavigable streams than is necessary to protect downstream navigability. On these matters, it is said, both conservationists and opponents of the Act agreed. Moreover, the argument continues, the limited reach of 23 (b) is confined by the repeated references to navigation and to congressional power over it in the course of committee hearings and reports on the 1935 amendments to the Act.We cannot distill as much as Union does from the long and intense legislative struggle to enact what was a decided innovation in federal policy. The Act unquestionably involved an invocation of the congressional power over navigation under the Commerce Clause, since it required a license to build any water power project on a navigable stream, broadly defined,18 regardless of any actual effect on navigation. There was, consequently, considerable debate about the scope and extent of the federal power over river navigation, about the definition of "navigable waters" and about the authority of Congress to impose controls and conditions having little relevance to the protection of navigation.19 Some thought the Commerce Clause did not extend to anything but the navigable mainstream itself, and then only for the purpose of preserving or improving water transportation. This broad objection to the Act found expression in remarks directed at 23 (b) and in assertions that the power over navigation was not sufficient to require the licensing of projects on nonnavigable streams, save perhaps where downstream navigability was substantially affected.20 Since the opponents of the Act mounted a major attack on the federal power over navigation, and this was a well-recognized basis of Commerce Clause authority, the proponents defended on this ground. Navigation and federal power over it hence permeated the debates, and statements reflecting the understandings and disagreements over these issues understandably constitute a considerable part of the context in which the Act was enacted.But none of this history can fairly be said to meet, much less determine, the question presented here. That question is not whether Congress exercised its authority over navigation in the Federal Water Power Act, which it most assuredly did, but whether in enacting 23 (b) it also invoked its full Commerce Clause authority over hydroelectric projects located on waters subject to federal jurisdiction. The fact that there were debates over the extent of federal power over navigation, or over navigable or nonnavigable streams, sheds little light on whether Congress did, or did not, intend to rely on other aspects of its power over commerce when it directed a Commission determination of the effects of a proposed project on the "interests of commerce." It is true that the debates on 23 (b), taking the course that they did, contain no express references to interstate commerce in electrical energy, perhaps because the authority to regulate the production of goods destined for interstate shipment was far less defined and understood at that time, see Hammer v. Dagenhart, , decided in 1918, and perhaps because no one was inclined to inject other constitutional issues into the ongoing debates.21 But the Act which emerged from these debates, and 23 (b) in particular, was couched in terms which reached beyond the control of navigation and forms no support for the proposition that Congress intended to equate the "interests of commerce" with those of navigation.22 Indeed, this history indicates that Congress was differentiating between the two. The House version of 23 (b) granted permission to construct a dam on a nonnavigable stream and provided for a license if the Commission found the improvement justified for the purpose of improving or developing the waterway "for the use or benefit of navigation in interstate or foreign commerce."23 The Senate Committee, along with the expansion of the definition of navigable waters, amended this to require the Commission to make an immediate investigation and to prohibit the construction without a license if the Commission found that "the interests of interstate or foreign commerce would be affected."24 Only if the Commission did not so find was the declarant granted permission to construct upon compliance with state laws. No one offered any explanation for the substitution of the inclusive term "affect the interests of interstate commerce."25 But conservationists and opponents seemed to agree that the Act embodied the full measure of Congress' authority under the Commerce Clause to regulate hydroelectric projects.26 And there is no evidence that the sponsors of the Act, who prevailed in securing its enactment in the broad terms they drafted, intended a construction of interstate or foreign commerce narrower than their constitutional counterparts. In the face of numerous objections to this exercise of federal authority, we find it of compelling significance that the Congress adopted comprehensive language and refrained from writing any limitation or reference to navigation into 23 (b).The materials concerning the 1935 amendments do not alter our conclusion. Here the hearings and reports contained references to navigation and to the federal authority over navigable and nonnavigable streams.27 The House Report, for example, stated that "every person intending to construct a project which might affect navigation would be required to come to the Commission for a determination of the interests of the United States." H. R. Rep. No. 1318, 74th Cong., 1st Sess., 26. To the same effect, see S. Rep. No. 621, 74th Cong., 1st Sess., 46-47. Such statements clearly refer to the filing requirement of 23 (b), which was the subject of the committee amendment. Only persons constructing projects on nonnavigable feeders of navigable waters need file a declaration of intention. The committee statements are thus quite accurate in this respect, but they do not illuminate the licensing provision of 23 (b), as distinct from its filing requirement, nor do they resolve the issue of which projects among those which might affect navigation are required to be licensed. They do not explicitly or implicitly, exempt from licensing those projects having no effect on navigation. The reports do not equate the "interests of commerce" with those of water transportation.It is true that there are no express references in the reports or the debates to other aspects of the commerce power in connection with 23 (b), but the reports reflect the same broad intent as the earlier deliberations to secure federal control over all water power projects involving the utilization of the Nation's river systems. "The act would be greatly strengthened by enabling the Commission to preserve control over all projects with which the Federal Government has any valid concern." S. Rep. No. 621, 74th Cong., 1st Sess., 47. See also H. R. Rep. No. 1318, 74th Cong., 1st Sess., 26. And on the floor of Congress objections to federal control over projects on nonnavigable streams, similar to those voiced in 1920, were again rejected as inconsistent with effective water power regulation. 79 Cong. Rec. 10568. Moreover, there was promptly eliminated an amendment to 23 which would have required a license only when the "interests of interstate or foreign commerce would be directly affected or burdened by such proposed construction."28 Nor can we ignore the actual effect of the filing requirement added in 1935. The applicable provision prior to this amendment, 9 of the Rivers and Harbors Act, 30 Stat. 1151, forbidding obstructions to navigation, was adequate to insure that projects with a substantial effect on downstream navigability would be brought before the Commission. Persons intending to construct a project which would likely have no such effect, such as some pure pumped storage installations, could decline to file a declaration of intention with impunity. Thus the 1935 amendment made a difference principally in regard to projects which predictably have little, if any, effect on navigation but a significant effect on interstate commerce. Respondent would have us assume this difference was not intended, although both the Committees stated that the amendment would enable "the Commission to preserve control over all projects with which the Federal Government has any valid concern." S. Rep. No. 621, 74th Cong., 1st Sess., 47; H. R. Rep. No. 1318, 74th Cong., 1st Sess., 26. In light of the necessary purport of this amendment and the breadth of the federal interest in hydroelectric projects expressed in the 1920 Act, the preoccupation of the Commission and the committees with navigation, while not without significance, does not overcome the clear import of the language and the purposes of the Act.The respondent asserts that an anomalous consequence flows from the Commission's construction of the Act and its view that steam plants generating large amounts of energy for interstate transmission are not within the scope of 23 (b), although located along a stream over which Congress has jurisdiction. Since the Commission's jurisdiction here rests solely on the interstate transmission of energy, there can be no basis for distinguishing between a steam plant and a hydroelectric facility both generating energy for interstate use. The Court of Appeals, after noting that the generation of electric energy is a local or interstate activity, concluded from this argument that "[t]he Commission's jurisdiction ... must logically rest upon its delegated congressional jurisdiction over the interests of commerce on navigable waters." 326 F.2d, at 551. On this reasoning either the Act should, but does not, require a license for a steam plant when situated on the navigable mainstream itself, or should not, but does, require a license for a hydroelectric plant, pumped storage or otherwise, situated on the mainstream but which has no demonstrable effect, or a beneficial effect, on navigability. The answer to this conundrum is that unlike Part II of Title II of the Public Utility Act of 1935, under which the Commission regulates various aspects of the sale and transmission of energy in interstate commerce, Part I, the original Federal Water Power Act, is concerned with the utilization of water resources and particularly the power potential in water. In relation to this central concern of the Act,29 the distinction between a hydroelectric project and a steam plant is obvious, and meaningful, although both produce energy for interstate transmission.30 Reversed. |
1 | In 1995, respondent the City of Chicago gave a written examination to applicants seeking firefighter positions. In January 1996, the City announced it would draw candidates randomly from a list of applicants who scored at least 89 out of 100 points on the examination, whom it designated as "well qualified." It informed those who scored below 65 that they had failed and would not be considered further. It informed applicants who scored between 65 and 88, whom it designated as "qualified," that it was unlikely they would be called for further processing but that the City would keep them on the eligibility list for as long as that list was used. That May, the City selected its first class of applicants to advance, and it repeated this process multiple times over the next six years. Beginning in March 1997, several African-American applicants who scored in the "qualified" range but had not been hired filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and received right-to-sue letters. They then filed suit, alleging (as relevant here) that the City's practice of selecting only applicants who scored 89 or above had a disparate impact on African-Americans in violation of Title VII of the Civil Rights Act of 1964, see 42 U. S. C. §2000e-2(k)(1)(A)(i). The District Court certified a class — petitioners here — of African-Americans who scored in the "qualified" range but were not hired. The court denied the City's summary judgment motion, rejecting its claim that petitioners had failed to file EEOC charges within 300 days "after the unlawful employment practice occurred," §2000e-5(e)(1), and finding instead that the City's "ongoing reliance" on the 1995 test results constituted a continuing Title VII violation. The litigation then proceeded, and petitioners prevailed on the merits. The Seventh Circuit reversed the judgment in their favor, holding that the suit was untimely because the earliest EEOC charge was filed more than 300 days after the only discriminatory act — sorting the scores into the "well qualified," "qualified," and "not qualified" categories. The later hiring decisions, the Seventh Circuit held, were an automatic consequence of the test scores, not new discriminatory acts.Held: A plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer's later application of that practice as long as he alleges each of the elements of a disparate-impact claim. Pp. 4-11. (a) Determining whether petitioners' charges were timely requires "identify[ing] precisely the 'unlawful employment practice' of which" they complain. Delaware State College v. Ricks, 449 U. S. 250, 257. With the exception of the first selection round, all agree that the challenged practice here — the City's selection of firefighter hires on the basis announced in 1996 — occurred within the charging period. Thus, the question is not whether a claim predicated on that conduct is timely, but whether the practice thus defined can be the basis for a disparate-impact claim at all. It can. A Title VII plaintiff establishes a prima facie claim by showing that the employer "uses a particular employment practice that causes a disparate impact" on one of the prohibited bases. §2000e-2(k). The term "employment practice" clearly encompasses the conduct at issue: exclusion of passing applicants who scored below 89 when selecting those who would advance. The City "use[d]" that practice each time it filled a new class of firefighters, and petitioners allege that doing so caused a disparate impact. It is irrelevant that subsection (k) does not address "accrual" of disparate-impact claims, since the issue here is not when the claims accrued but whether the claims stated a violation. They did. Whether petitioners proved a violation is not before the Court. Pp. 4-7. (b) The City argues that the only actionable discrimination occurred in 1996 when it used the test results to create the hiring list, which it concedes was unlawful. It may be true that the City's adoption in 1996 of the cutoff score gave rise to a freestanding disparate-impact claim. If so, because no timely charge was filed, the City is now "entitled to treat that past act as lawful," United Air Lines, Inc. v. Evans, 431 U. S. 553, 558. But it does not follow that no new violation occurred — and no new claims could arise — when the City later implemented the 1996 decision. Evans and later cases the City cites establish only that a Title VII plaintiff must show a "present violation" within the limitations period. For disparate-treatment claims — which require discriminatory intent — the plaintiff must demonstrate deliberate discrimination within the limitations period. But no such demonstration is needed for claims, such as this one, that do not require discriminatory intent. Cf., e.g., Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 640. Contrary to the Seventh Circuit's reasoning, even if both types of claims take aim at prohibited discrimination, it does not follow that their reach is coextensive. Pp. 7-10. (c) The City and its amici warn that this reading will result in a host of practical problems for employers and employees alike. The Court, however, must give effect to the law Congress enacted, not assess the consequences of each approach and adopt the one that produces the least mischief. Pp. 10-11. (d) It is left to the Seventh Circuit to determine whether the judgment must be modified to the extent that the District Court awarded relief based on the first round of hiring, which occurred outside the charging period even for the earliest EEOC charge. P. 11.528 F. 3d 488, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court.ARTHUR L. LEWIS, Jr., et al., PETITIONERS v. CITY OF CHICAGO, ILLINOISon writ of certiorari to the united states court of appeals for the seventh circuit[May 24, 2010] Justice Scalia delivered the opinion of the Court. Title VII of the Civil Rights Act of 1964 prohibits employers from using employment practices that cause a disparate impact on the basis of race (among other bases). 42 U. S. C. §2000e-2(k)(1)(A)(i). It also requires plaintiffs, before beginning a federal lawsuit, to file a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC). §2000e-5(e)(1). We consider whether a plaintiff who does not file a timely charge challenging the adoption of a practice — here, an employer's decision to exclude employment applicants who did not achieve a certain score on an examination — may assert a disparate-impact claim in a timely charge challenging the employer's later application of that practice.I In July 1995, the City of Chicago administered a written examination to over 26,000 applicants seeking to serve in the Chicago Fire Department. After scoring the examinations, the City reported the results. It announced in a January 26, 1996, press release that it would begin drawing randomly from the top tier of scorers, i.e., those who scored 89 or above (out of 100), whom the City called "well qualified." Those drawn from this group would proceed to the next phase — a physical-abilities test, background check, medical examination, and drug test — and if they cleared those hurdles would be hired as candidate firefighters. Those who scored below 65, on the other hand, learned by letters sent the same day that they had failed the test. Each was told he had not achieved a passing score, would no longer be considered for a firefighter position, and would not be contacted again about the examination. The applicants in-between — those who scored between 65 and 88, whom the City called "qualified"1 — were notified that they had passed the examination but that, based on the City's projected hiring needs and the number of "well-qualified" applicants, it was not likely they would be called for further processing. The individual notices added, however, that because it was not possible to predict how many applicants would be hired in the next few years, each "qualified" applicant's name would be kept on the eligibility list maintained by the Department of Personnel for as long as that list was used. Eleven days later, the City officially adopted an "Eligible List" reflecting the breakdown described above. On May 16, 1996, the City selected its first class of applicants to advance to the next stage. It selected a second on October 1, 1996, and repeated the process nine more times over the next six years. As it had announced, in each round the City drew randomly from among those who scored in the "well-qualified" range on the 1995 test. In the last round it exhausted that pool, so it filled the remaining slots with "qualified" candidates instead. On March 31, 1997, Crawford M. Smith, an African-American applicant who scored in the "qualified" range and had not been hired as a candidate firefighter, filed a charge of discrimination with the EEOC. Five others followed suit, and on July 28, 1998, the EEOC issued all six of them right-to-sue letters. Two months later, they filed this civil action against the City, alleging (as relevant here) that its practice of selecting for advancement only applicants who scored 89 or above caused a disparate impact on African-Americans in violation of Title VII. The District Court certified a class — petitioners here — consisting of the more than 6,000 African-Americans who scored in the "qualified" range on the 1995 examination but had not been hired.2 The City sought summary judgment on the ground that petitioners had failed to file EEOC charges within 300 days after their claims accrued. See §2000e-5(e)(1). The District Court denied the motion, concluding that the City's "ongoing reliance" on the 1995 test results constituted a "continuing violation" of Title VII. App. to Pet. for Cert. 45a. The City stipulated that the 89-point cutoff had a "severe disparate impact against African Americans," Final Pretrial Order, Record, Doc. 223, Schedule A, p. 2, but argued that its cutoff score was justified by business necessity. After an 8-day bench trial, the District Court ruled for petitioners, rejecting the City's business-necessity defense. It ordered the City to hire 132 randomly selected members of the class (reflecting the number of African-Americans the Court found would have been hired but for the City's practices) and awarded backpay to be divided among the remaining class members. The Seventh Circuit reversed. 528 F. 3d 488 (2008). It held that petitioners' suit was untimely because the earliest EEOC charge was filed more than 300 days after the only discriminatory act: sorting the scores into the "well-qualified," "qualified," and "not-qualified" categories. The hiring decisions down the line were immaterial, it reasoned, because "[t]he hiring only of applicants classified 'well qualified' was the automatic consequence of the test scores rather than the product of a fresh act of discrimination." Id., at 491. We granted certiorari. 557 U. S. __ (2009).IIA Before beginning a Title VII suit, a plaintiff must first file a timely EEOC charge. In this case, petitioners' charges were due within 300 days "after the alleged unlawful employment practice occurred." §2000e-5(e)(1).3 Determining whether a plaintiff's charge is timely thus requires "identify[ing] precisely the 'unlawful employment practice' of which he complains." Delaware State College v. Ricks, 449 U. S. 250, 257 (1980). Petitioners here challenge the City's practice of picking only those who had scored 89 or above on the 1995 examination when it later chose applicants to advance. Setting aside the first round of selection in May 1996, which all agree is beyond the cut-off, no one disputes that the conduct petitioners challenge occurred within the charging period.4 The real question, then, is not whether a claim predicated on that conduct is timely, but whether the practice thus defined can be the basis for a disparate-impact claim at all. We conclude that it can. As originally enacted, Title VII did not expressly prohibit employment practices that cause a disparate impact. That enactment made it an "unlawful employment practice" for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," §2000e-2(a)(1), or "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of" any of the same reasons, §2000e-2(a)(2). In Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971), we interpreted the latter provision to "proscrib[e] not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Two decades later, Congress codified the requirements of the "disparate impact" claims Griggs had recognized. Pub. L. 102-166, §105, 105 Stat. 1074, 42 U. S. C. §2000e-2(k). That provision states:"(1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if--"(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity ... ."Thus, a plaintiff establishes a prima facie disparate-impact claim by showing that the employer "uses a particular employment practice that causes a disparate impact" on one of the prohibited bases. Ibid. (emphasis added). See Ricci v. DeStefano, 557 U. S. ___, ___ (2009) (slip op., at 18). Petitioners' claim satisfies that requirement. Title VII does not define "employment practice," but we think it clear that the term encompasses the conduct of which petitioners complain: the exclusion of passing applicants who scored below 89 (until the supply of scores 89 or above was exhausted) when selecting those who would advance. The City "use[d]" that practice in each round of selection. Although the City had adopted the eligibility list (embodying the score cutoffs) earlier and announced its intention to draw from that list, it made use of the practice of excluding those who scored 88 or below each time it filled a new class of firefighters. Petitioners alleged that this exclusion caused a disparate impact. Whether they adequately proved that is not before us. What matters is that their allegations, based on the City's actual implementation of its policy, stated a cognizable claim. The City argues that subsection (k) is inapposite because it does not address "accrual" of disparate-impact claims. Section 2000e-5(e)(1), it says, specifies when the time to file a charge starts running. That is true but irrelevant. Aside from the first round of selection in May 1996 (which all agree is beyond the 300-day charging period), the acts petitioners challenge — the City's use of its cutoff score in selecting candidates — occurred within the charging period. Accordingly, no one disputes that if petitioners could bring new claims based on those acts, their claims were timely. The issue, in other words, is not when petitioners' claims accrued, but whether they could accrue at all. The City responds that subsection (k) does not answer that question either; that it speaks, as its title indicates, only to the plaintiff's "[b]urden of proof in disparate impact cases," not to the elements of disparate-impact claims, which the City says are be found in §2000e-2(a)(2). That is incorrect. Subsection (k) does indeed address the burden of proof — not just who bears it, however, but also what it consists of. It does set forth the essential ingredients of a disparate-impact claim: It says that a claim "is established" if an employer "uses" an "employment practice" that "causes a disparate impact" on one of the enumerated bases. §2000e-2(k)(1)(A)(i). That it also sets forth a business-necessity defense employers may raise, §2000e-2(k)(1)(A)(i), and explains how plaintiffs may prevail despite that defense, §2000e-2(k)(1)(A)(ii), is irrelevant. Unless and until the defendant pleads and proves a business-necessity defense, the plaintiff wins simply by showing the stated elements.B Notwithstanding the text of §2000e-2(k)(1)(A)(i) and petitioners' description of the practice they claim was unlawful, the City argues that the unlawful employment practice here was something else entirely. The only actionable discrimination, it argues, occurred in 1996 when it "used the examination results to create the hiring eligibility list, limited hiring to the 'well qualified' classification, and notified petitioners." Brief for Respondent 23. That initial decision, it concedes, was unlawful. But because no timely charge challenged the decision, that cannot now be the basis for liability. And because, the City claims, the exclusion of petitioners when selecting classes of firefighters followed inevitably from the earlier decision to adopt the cutoff score, no new violations could have occurred. The Seventh Circuit adopted the same analysis. See 528 F. 3d, at 490-491. The City's premise is sound, but its conclusion does not follow. It may be true that the City's January 1996 decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a freestanding disparate-impact claim. Cf. Connecticut v. Teal, 457 U. S. 440, 445-451 (1982). If that is so, the City is correct that since no timely charge was filed attacking it, the City is now "entitled to treat that past act as lawful." United Air Lines, Inc. v. Evans, 431 U. S. 553, 558 (1977). But it does not follow that no new violation occurred — and no new claims could arise — when the City implemented that decision down the road. If petitioners could prove that the City "use[d]" the "practice" that "causes a disparate impact," they could prevail. The City, like the Seventh Circuit, see 528 F. 3d, at 490-491, insists that Evans and a line of cases following it require a different result. See also Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007); Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989); Ricks, 449 U. S. 250. Those cases, we are told, stand for the proposition that present effects of prior actions cannot lead to Title VII liability. We disagree. As relevant here, those cases establish only that a Title VII plaintiff must show a "present violation" within the limitations period. Evans, supra, at 558 (emphasis deleted). What that requires depends on the claim asserted. For disparate-treatment claims — and others for which discriminatory intent is required — that means the plaintiff must demonstrate deliberate discrimination within the limitations period. See Ledbetter, supra, at 624-629; Lorance, supra, at 904-905; Ricks, supra, at 256-258; Evans, supra, at 557-560; see also Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam). But for claims that do not require discriminatory intent, no such demonstration is needed. Cf. Ledbetter, supra, at 640; Lorance, supra, at 904, 908-909. Our opinions, it is true, described the harms of which the unsuccessful plaintiffs in those cases complained as "present effect[s]" of past discrimination. Ledbetter, supra, at 628; see also Lorance, supra, at 907; Chardon, supra, at 8; Ricks, supra, at 258; Evans, supra, at 558. But the reason they could not be the present effects of present discrimination was that the charged discrimination required proof of discriminatory intent, which had not even been alleged. That reasoning has no application when, as here, the charge is disparate impact, which does not require discriminatory intent. The Seventh Circuit resisted this conclusion, reasoning that the difference between disparate-treatment and disparate-impact claims is only superficial. Both take aim at the same evil — discrimination on a prohibited basis — but simply seek to establish it by different means. 528 F. 3d, at 491-492. Disparate-impact liability, the Court of Appeals explained, " 'is primarily intended to lighten the plaintiff's heavy burden of proving intentional discrimination after employers learned to cover their tracks.' " Id., at 492 (quoting Finnegan v. Trans World Airlines, Inc., 967 F. 2d 1161, 1164 (CA7 1992)). But even if the two theories were directed at the same evil, it would not follow that their reach is therefore coextensive. If the effect of applying Title VII's text is that some claims that would be doomed under one theory will survive under the other, that is the product of the law Congress has written. It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79-80 (1998). The City also argues that, even if petitioners could have proved a present disparate-impact violation, they never did so under the proper test. The parties litigated the merits — and the City stipulated that the cutoff score caused disparate impact — after the District Court adopted petitioners' "continuing violation" theory. App. to Pet. for Cert. 45a. That theory, which petitioners have since abandoned, treated the adoption and application of the cutoff score as a single, ongoing wrong. As a result, the City says, "petitioners never proved, or even attempted to prove, that use of the [eligibility] list had disparate impact," Brief for Respondent 32 (emphasis added), since the theory they advanced did not require them to do so. If the Court of Appeals determines that the argument has been preserved it may be available on remand. But it has no bearing here. The only question presented to us is whether the claim petitioners brought is cognizable. Because we conclude that it is, our inquiry is at an end.C The City and its amici warn that our reading will result in a host of practical problems for employers and employees alike. Employers may face new disparate-impact suits for practices they have used regularly for years. Evidence essential to their business-necessity defenses might be unavailable (or in the case of witnesses' memories, unreliable) by the time the later suits are brought. And affected employees and prospective employees may not even know they have claims if they are unaware the employer is still applying the disputed practice. Truth to tell, however, both readings of the statute produce puzzling results. Under the City's reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact. Equitable tolling or estoppel may allow some affected employees or applicants to sue, but many others will be left out in the cold. Moreover, the City's reading may induce plaintiffs aware of the danger of delay to file charges upon the announcement of a hiring practice, before they have any basis for believing it will produce a disparate impact. In all events, it is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted. By enacting §2000e-2(k)(1)(A)(i), Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.III The City asserts that one aspect of the District Court's judgment still must be changed. The first round of hiring firefighters occurred outside the charging period even for the earliest EEOC charge. Yet the District Court, applying the continuing-violation theory, awarded relief based on those acts. Petitioners do not disagree, and they do not oppose the City's request for a remand to resolve this issue. We therefore leave it to the Seventh Circuit to determine, to the extent that point was properly preserved, whether the judgment must be modified in light of our decision.* * * The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.FOOTNOTESFootnote 1 Certain paramedics who scored between 65 and 88 were deemed "well qualified" pursuant to a collective-bargaining agreement, and certain veterans in the "qualified" range had 5 points added to their scores and therefore became "well qualified."Footnote 2 In addition to the class members, the African American Fire Fighters League of Chicago, Inc., also joined the suit as a plaintiff.Footnote 3 All agree that a 300-day deadline applies to petitioners' charges pursuant to 29 CFR §§1601.13(a)(4), (b)(1), 1601.80 (2009). Cf. EEOC v. Commercial Office Products Co., 486 U. S. 107, 112, 114-122 (1988).Footnote 4 Because the District Court certified petitioners as a class, and because a court may award class-wide relief even to unnamed class members who have not filed EEOC charges, see Franks v. Bowman Transp. Co., 424 U. S. 747, 771 (1976), petitioners assert and the City does not dispute that the date of the earliest EEOC charge filed by a named plaintiff — that filed by Smith on March 31, 1997 — controls the timeliness of the class's claims. We assume without deciding that this is correct. |
7 | Respondent, a manufacturer, in 1958 consented to the entry of a Federal Trade Commission (FTC) cease-and-desist order prohibiting it from engaging in further discriminatory activities violating 2 (d) of the Clayton Act, and the FTC adopted the order in 1959. In 1964, following charges of additional discriminatory activities, respondent stipulated that it had committed violations of the 1959 order. The FTC petitioned the Court of Appeals to enforce the original order under the third paragraph of 11 of the original Clayton Act, which authorized the FTC to apply to a court of appeals for enforcement of its orders. The Court of Appeals dismissed the petition for want of jurisdiction, upholding respondent's contention that a 1959 amendment (the Finality Act) substituting new enforcement remedies for those in 11 had repealed the authority of the FTC to seek, and of the courts to grant, enforcement of FTC cease-and-desist orders entered before the Finality Act took effect. Held: FTC orders under the Clayton Act entered before the Finality Act was enacted remain enforceable under 11 of the Clayton Act. Pp. 233-236. (a) The provision in 2 of the Finality Act making the Act's provisions inapplicable to a Clayton Act "proceeding initiated" before enactment of the Finality Act refers to the filing of the "proceeding" before the FTC and is not limited to the application for enforcement or petition for review in a court of appeals. P. 233. (b) The express purpose of the Finality Act "to provide for the more expeditious enforcement of cease and desist orders" and the Act's legislative history are inconsistent with giving absolution to the almost 400 proven violators of the Clayton Act who are subject to pre-Finality Act orders of the FTC. P. 234. 356 F.2d 253, reversed and remanded.Ralph S. Spritzer argued the cause for petitioner. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Nathan Lewin, Howard E. Shapiro, James McI. Henderson and Thomas F. Howder.Edwin S. Rockefeller argued the cause for respondent. With him on the brief were Donald H. Green and Joel E. Hoffman.MR. JUSTICE CLARK delivered the opinion of the Court.This case involves the effect of the Act of July 23, 1959, 73 Stat. 243 (Finality Act), upon orders issued by the Federal Trade Commission under 11 of the Clayton Act, 38 Stat. 734, prior to the date of the former Act. The respondent claims that the Finality Act repealed the enforcement provisions of 11 of the Clayton Act, 15 U.S.C. 21 (1958 ed.), and that orders of the Commission entered prior to the enactment of the Finality Act are not now enforceable. The Court of Appeals agreed, held that it had no jurisdiction to enforce such orders and directed that the proceeding be dismissed. 356 F.2d 253. In view of the pendency of almost 400 such orders and the conflict among the circuits1 on the point, we granted certiorari. . I. The facts are not disputed, save on points not relevant here, and will not be stated in detail. Jantzen manufactures men's, women's, and children's apparel. On September 4, 1958, it was charged by the Commission with having violated 2 (d) of the Clayton Act by allowing discriminatory advertising and promotional allowances to certain of its customers. Jantzen did not answer the complaint. However, it consented to the entry of a cease-and-desist order against it prohibiting further discrimination in advertising and promotional activities. This agreement and a form of order were approved by a hearing examiner and on January 16, 1959, the order was adopted by the Commission. On July 22, 1964, some five years after the adoption of the Finality Act, the Commission ordered an investigation into charges that Jantzen had violated the 1959 consent order. Jantzen stipulated before a hearing examiner that it had violated the consent order by granting discriminatory allowances to customers in Chattanooga, Tenn., and Brooklyn, N. Y. The Commission thereafter concluded that Jantzen had violated the order. It then applied to the Court of Appeals for an order affirming and enforcing the original order. The application was based on the provisions of the third paragraph of 11 of the original Clayton Act, which authorized the Commission, in the event such an order was not obeyed, to apply to a court of appeals for its "enforcement." Jantzen claimed that the amendment of 11 by the Finality Act resulted in a repeal of the Commission's authority to seek, and the courts' to grant, affirmance and enforcement of such orders. The Court of Appeals agreed and dismissed the application for lack of jurisdiction. We reverse and remand the proceedings for further consideration in light of this opinion. II. We start with the proposition that the Congress intended by its enactment of the Finality Act of 1959 to strengthen the hand of the Commission in the enforcement of the Clayton Act. As the report of the Committee on the Judiciary of the Senate stated: "The effectiveness of the Clayton Act ... has long been handicapped by the absence of adequate enforcement provisions... . S. 726 would put teeth into Clayton Act orders and would fill the enforcement void which has existed for many years." S. Rep. No. 83, 86th Cong., 1st Sess., 2 (1959). The procedures existing prior to the adoption of the Finality Act required the Commission to investigate, and after complaint, prove a violation of the Clayton Act before it could issue a cease-and-desist order. After its issuance a violation of the order had to be investigated and proved before the Commission might obtain an order compelling its obedience. Only then could a court of appeals order enforcement. And under Federal Trade Comm'n v. Ruberoid Co., , a contempt proceeding would not lie except on allegations of violation of the Act a third time and proof of a failure or refusal to obey the Commission's order, previously affirmed.The Finality Act eliminated these "laborious, time consuming, and very expensive" procedures. S. Rep. No. 83, supra, at 2. As Congressman Huddleston, one of the principal supporters of the bill which later became the Act, stated to the House: "The bill ... is in effect a perfecting amendment to the Clayton Act. It has no other purpose than to effect the will of Congress with respect to the role of the Federal Trade Commission in Clayton Act enforcement in the same manner and to the same degree that the will of Congress was effectuated by the Wheeler-Lea amendments to the Federal Trade Commission Act." 105 Cong. Rec. 12732. The remarks of Congressman Celler, Chairman of the House Judiciary Committee, of Congressman Roosevelt and of other supporters of the bill were substantially the same. 105 Cong. Rec. 12730-12733.The Wheeler-Lea Amendment clarified the procedures of the Federal Trade Commission Act but did not amend those of the Clayton Act. Under the Wheeler-Lea Amendment orders issued by the Commission were to become final 60 days after their issuance or upon affirmance by a court of appeals in which a petition for review had been filed. However, 5 (a) of the Amendment expressly provided that orders outstanding at the time of the adoption of the Amendment would become final 60 days after the latter date or upon affirmance in review proceedings instituted during that 60-day period. 52 Stat. 117. The Finality Act instead of using the language of 5 (a) of the Wheeler-Lea Amendment contains a special provision, 2, which reads as follows: "The amendments made by section 1 shall have no application to any proceeding initiated before the date of enactment of this Act under the third or fourth paragraph of section 11 of the [Clayton] Act ... . Each such proceeding shall be governed by the provisions of such section as they existed on the day preceding the date of enactment of this Act." The Court of Appeals thought the use of this language was significant in that, unlike 5 (a), it "does not deal with cease and desist orders issued before its effective date, nor provide for their becoming final within the meaning of the amended Act. It deals solely with proceedings begun in a Court of Appeals ... . Thus the third paragraph [of 11] is expressly continued in effect for this very limited purpose, namely, the completion of proceedings for enforcement initiated by the Commission in a Court of Appeals... . [T]his is a strong indication that the Congress knew, and intended, that it was repealed for other purposes." The Court of Appeals buttressed this reading of the Finality Act by noting that the Commission originally took the position "that existing Clayton Act orders would become final within 60 days, under the new law, just as under the Wheeler-Lea Act ... ." 356 F.2d, at 257. See Sperry Rand Corp. v. F. T. C.App. D.C. 1, 288 F.2d 403 (1961); F. T. C. v. Nash-Finch Co.App. D.C. 5, 288 F.2d 407 (1961). From this, the court indicated that this change of position by the Commission pointed up its conclusion that "the repeal in this case was express." 356 F.2d, at 257. III. We cannot agree. One error of the Court of Appeals seems to be the limited scope it gives the phrase "proceeding initiated before the date of enactment of this Act." (Emphasis supplied.) The Court of Appeals thought this included only the application for enforcement under paragraph three or the petition for review under paragraph four of the original 11 of the Act. We think not. We believe the word "proceeding" was used in the sense that it was employed throughout 11 prior to the Amendment, namely the action brought by the Commission against the alleged violator of the Clayton Act. It follows that the "proceeding initiated" meant the filing of the "proceeding" before the Commission and was not limited to the application for enforcement or petition for review. This is made clear to us by the last sentence of 2: "Each such proceeding shall be governed by the provisions of such section [ 11 of the Clayton Act] as they existed on the day preceding the date of enactment of this Act." We emphasize that here the Congress said "section" not paragraphs 3-7, inclusive, of the section. It follows that the provisions of the entire section were preserved intact and governed all orders predating the Finality Act. The apparent reason for this variance from the procedure of the Wheeler-Lea Act was because of the heavy penalties which the Congress attached to the violation of final orders of the Commission under the Finality Act.2 It, therefore, wished to make clear that not only applications for enforcement of pre-Finality Act orders and petitions for review of such orders but any action of the Commission with reference to pre-Finality Act orders would be governed by the provisions of 11 of the Clayton Act "as they existed on the day preceding the date of enactment of this [Finality] Act." We believe that this interpretation is implicit in our opinion on the second review by this Court of Federal Trade Comm'n v. Henry Broch & Co., , where MR. JUSTICE BRENNAN held that the 1959 amendments to 11 of the Clayton Act "do not apply to enforcement of the instant order." At 365. In note 5, on p. 365, the opinion pointed out that the order "was entered by the Commission on December 10, 1957. The procedures enacted by the 1959 amendments therefore do not apply to it. See Sperry Rand Corp. v. Federal Trade Comm'nApp. D.C. 1, 288 F.2d 403." It is significant that Sperry Rand specifically held that "[e]nforcement due to any violation of the [pre-Finality Act] consent order which might occur is left to the provisions of the statute as they existed at the time the order was entered." At 4, 288 F.2d, at 406. Such a holding here is supported by the fact that the Finality Act no-where denies the Commission the power to enforce preexisting orders. At most its provisions are silent with regard to such authority. Furthermore, the caption of the Finality Act itself as well as the legislative history gives added weight to our interpretation. The caption recites the purpose of the Act to be "to provide for the more expeditious enforcement of cease and desist orders ... ." 73 Stat. 243. Such a purpose would certainly not include making approximately 400 orders dead letters. As we have noted previously the legislative history shows beyond contradiction that not only its sponsors but the responsible committees reporting the bill for passage believed "that this legislation will strengthen the enforcement provisions of section 11 of the Clayton Act ... ." S. Rep. No. 83. supra, at 3. Giving some 400 proven violators absolution from prior orders of the Commission would hardly comport with such a congressional intent. The Court of Appeals bottomed its opinion on the language used in the opening sentence of subsection (c) of the Finality Act reading that the "third, fourth, fifth, sixth, and seventh paragraphs of" 11 of the Clayton Act "are amended to read as follows." But we must read the Act as a whole as we have 2 heretofore. And in so doing we cannot, as MR. JUSTICE DOUGLAS said, ignore the "common sense, precedent, and legislative history" of the setting that gave it birth. United States v. Standard Oil Co., . And as Mr. Justice Holmes said many years ago:"The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed. The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before." Johnson v. United States, 163 F. 30, 32 (1908). But whether or not we are correct in our application and interpretation we have concluded that a sensible construction of the Finality Act compels the opposite result to that reached by the Court of Appeals. That court would grant review and enforcement of proceedings under the old procedures where the petition for review or the application for enforcement was filed prior to the date of the enactment of the Finality Act but orders from which no petition or application was ever filed would not be capable of enforcement. This would subject violators who sought review to the sanctions of the section but those who had not sought review would be free to violate orders against them with impunity. Consequently, almost 400 separate violators would be forgiven. It is no answer to say that the Commission could file new complaints which would come under the new procedures. The fact is that some 400 particularized orders written to correct specific mischief violative of the Clayton Act would be unenforceable. There is quite a difference between proving a violation of the Clayton Act and a failure to obey a specific order of the Commission. Long, tedious, and costly investigation, proof of injury to competition as well as other affirmative requirements necessary to the issuance of an order and many defenses such as cost justification, meeting competition, exclusive dealing, etc., are all avoided. Particularly in merger cases would the enforcement of prior orders be simplified and expedited.In view of all of these considerations we cannot say that the author of the Finality Act and its sponsors - all stalwart champions of effective antitrust enforcement - would have intended to strip the Commission of all of its enforcement weapons with reference to some 400 concerns already adjudged to be Clayton Act violators. Nor could we ascribe to a Congress that has so clearly expressed its will any such result. We can only say that as between choices Congress rejected only one, namely, that of the Wheeler-Lea Act's 60-day review provision. Certainly it intended that the old procedures would apply to proceedings on petition for review or application for enforcement. There is no evidence that it intended to put the pre-1959 orders into the discard. We remain more faithful to the Act, we think, when we find that they too are enforceable under the old procedures. Reversed and remanded.[Footnote 1] See Federal Trade Comm'n v. Pacific-Gamble-Robinson Co., No. 18260 (C. A. 9th Cir. 1962); Federal Trade Comm'n v. Benrus Watch Co., No. 27752 (C. A. 2d Cir. 1962), and the instant case.[Footnote 2] The penalties were raised to $5,000 for each day in which a violation continued.MR. JUSTICE HARLAN, concurring.While I confess to great difficulty in driving through the statute to the Court's conclusion, I am content to acquiesce in my Brother CLARK's opinion with the added help of the Second Circuit's opinion in F. T. C. v. Standard Motor Products, Inc., 371 F.2d 613. |
7 | Per Curiam. The question presented is whether the parties' debt-restructuring agreement is "a contract evidencing a transaction involving commerce" within the meaning of the Federal Arbitration Act (FAA). 9 U. S. C. §2. As we concluded in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995), there is a sufficient nexus with interstate commerce to make enforceable, pursuant to the FAA, an arbitration provision included in that agreement. I Petitioner The Citizens Bank — an Alabama lending institution — seeks to compel arbitration of a financial dispute with respondents Alafabco, Inc.--an Alabama fabrication and construction company — and its officers. According to a complaint filed by respondents in Alabama state court, the dispute among the parties arose out of a series of commercial loan transactions made over a decade-long course of business dealings. In 1986, the complaint alleges, the parties entered into a quasi-contractual relationship in which the bank agreed to provide operating capital necessary for Alafabco to secure and complete construction contracts. That relationship began to sour in 1998, when the bank allegedly encouraged Alafabco to bid on a large construction contract in Courtland, Alabama, but refused to provide the capital necessary to complete the project. In order to compensate for the bank's alleged breach of the parties' implied agreement, Alafabco completed the Courtland project with funds that would otherwise have been dedicated to repaying existing obligations to the bank. Alafabco in turn became delinquent in repaying those existing obligations. On two occasions, the parties attempted to resolve the outstanding debts. On May 3, 1999, Alafabco and the bank executed " 'renewal notes' " in which all previous loans were restructured and redocumented. No. 1010703, 2002 WL 1998268, *1 (Ala., Aug. 30, 2002). The debt-restructuring arrangement included an arbitration agreement covering " 'all disputes, claims, or controversies.' " That agreement provided that the FAA " 'shall apply to [its] construction, interpretation, and enforcement.' " Id., at *1-*2. Alafabco defaulted on its obligations under the renewal notes and sought bankruptcy protection in federal court in September 1999. In return for the dismissal of Alafabco's bankruptcy petition, the bank agreed to renegotiate the outstanding loans in a second debt-restructuring agreement. On December 10, 1999, the parties executed new loan documents encompassing Alafabco's entire outstanding debt, approximately $430,000, which was secured by a mortgage on commercial real estate owned by the individual respondents, by Alafabco's accounts receivable, inventory, supplies, fixtures, machinery, and equipment, and by a mortgage on the house of one of the individual respondents. Id., at *2. As part of the second debt-restructuring agreement, the parties executed an arbitration agreement functionally identical to that of May 3, 1999. Within a year of the December 1999 debt restructuring, Alafabco brought suit in the Circuit Court of Lawrence County, Alabama, against the bank and its officers. Alafabco alleged, among other causes of action, breach of contract, fraud, breach of fiduciary duties, intentional infliction of emotional distress, and interference with a contractual or business relationship. Essentially, the suit alleged that Alafabco detrimentally " 'incur[red] massive debt' " because the bank had unlawfully reneged on its agreement to provide capital sufficient to complete the Courtland project. Id., at *1. Invoking the arbitration agreements, the bank moved to compel arbitration of the parties' dispute. The Circuit Court ordered respondents to submit to arbitration in accordance with the arbitration agreements. The Supreme Court of Alabama reversed over Justice See's dissent. Applying a test it first adopted in Sisters of the Visitation v. Cochran Plastering Co., 775 So. 2d 759 (2000), the court held that the debt-restructuring agreements were the relevant transactions and proceeded to determine whether those transactions, by themselves, had a "substantial effect on interstate commerce." 2002 WL 1998268, at *3, *5. Because there was no showing "that any portion of the restructured debt was actually attributable to interstate transactions; that the funds comprising that debt originated out-of-state; or that the restructured debt was inseparable from any out-of-state projects," id., at *8, the court found an insufficient nexus with inter-state commerce to establish FAA coverage of the parties' dispute. Justice See in dissent explained why, in his view, the court had erred by using the test formulated in Sisters of the Visitation, in which the Supreme Court of Alabama read this Court's opinion in United States v. Lopez, 514 U. S. 549 (1995), to require that "a particular contract, in order to be enforceable under the Federal Arbitration Act must, by itself, have a substantial effect on interstate commerce." 2002 WL 1998268, at *11. Rejecting that stringent test and assessing the evidence with a more generous view of the necessary effect on interstate commerce, Justice See would have found that the bank's loans to Alafabco satisfied the FAA's "involving commerce" requirement.II The FAA provides that a"written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. §2 (emphasis added). The statute further defines "commerce" to include "commerce among the several States." §1. Echoing Justice See's dissenting opinion, petitioner contends that the decision below gives inadequate breadth to the "involving commerce" language of the statute. We agree. We have interpreted the term "involving commerce" in the FAA as the functional equivalent of the more familiar term "affecting commerce"--words of art that ordinarily signal the broadest permissible exercise of Congress' Commerce Clause power. Allied-Bruce Terminix Cos., 482 U. S. 483, 490 (1987), it is perfectly clear that the FAA encompasses a wider range of transactions than those actually "in commerce"--that is, "within the flow of interstate commerce," Allied-Bruce Terminix Cos., supra, at 273 (internal quotation marks, citation, and emphasis omitted). The Supreme Court of Alabama was therefore misguided in its search for evidence that a "portion of the restructured debt was actually attributable to interstate transactions" or that the loans "originated out-of-state" or that "the restructured debt was inseparable from any out-of-state projects." 2002 WL 1998268, at *8. Such evidence might be required if the FAA were restricted to transactions actually " 'in commerce,' " Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 195-196 (1974), but, as we have explained, that is not the limit of the FAA's reach. Nor is application of the FAA defeated because the individual debt-restructuring transactions, taken alone, did not have a "substantial effect on interstate commerce." 2002 WL 1998268, at *5. Congress' Commerce Clause power "may be exercised in individual cases without showing any specific effect upon interstate commerce" if in the aggregate the economic activity in question would represent "a general practice ... subject to federal control." Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948). See also Perez v. United States, 402 U. S. 146, 154 (1971); Wickard v. Filburn, 317 U. S. 111, 127-128 (1942). Only that general practice need bear on interstate commerce in a substantial way. Maryland v. Wirtz, 392 U. S. 183, 196-197, n. 27 (1968); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37-38 (1937). This case is well within our previous pronouncements on the extent of Congress' Commerce Clause power. Although the debt-restructuring agreements were executed in Alabama by Alabama residents, they nonetheless satisfy the FAA's "involving commerce" test for at least three reasons. First, Alafabco engaged in business throughout the southeastern United States using substantial loans from the bank that were renegotiated and redocumented in the debt-restructuring agreements. Indeed, the gravamen of Alafabco's state court suit was that it had incurred " 'massive debt' " to the bank in order to keep its business afloat, and the bank submitted affidavits of bank officers establishing that its loans to Alafabco had been used in part to finance large construction projects in North Carolina, Tennessee, and Alabama. Second, the restructured debt was secured by all of Alafabco's business assets, including its inventory of goods assembled from out-of-state parts and raw materials. If the Commerce Clause gives Congress the power to regulate local business establishments purchasing substantial quantities of goods that have moved in interstate commerce, Katzenbach v. McClung, 379 U. S. 294, 304-305 (1964), it necessarily reaches substantial commercial loan transactions secured by such goods. Third, were there any residual doubt about the magnitude of the impact on interstate commerce caused by the particular economic transactions in which the parties were engaged, that doubt would dissipate upon consideration of the "general practice" those transactions represent. Mandeville Island Farms, supra, at 236. No elaborate explanation is needed to make evident the broad impact of commercial lending on the national economy or Congress' power to regulate that activity pursuant to the Commerce Clause. Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 38-39 (1980) ("[B]anking and related financial activities are of profound local concern... . Nonetheless, it does not follow that these same activities lack important interstate attributes"); Perez, supra, at 154-155 ("Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce"). The decision below therefore adheres to an improperly cramped view of Congress' Commerce Clause power. That view, first announced by the Supreme Court of Alabama in Sisters of the Visitation v. Cochran Plastering Co., 775 So. 2d 759 (2000), appears to rest on a misreading of our decision in United States v. Lopez, 514 U. S. 549 (1995). Lopez did not restrict the reach of the FAA or implicitly overrule Allied-Bruce Terminix Cos.--indeed, we did not discuss that case in Lopez. Nor did Lopez purport to announce a new rule governing Congress' Commerce Clause power over concededly economic activity such as the debt-restructuring agreements before us now. 514 U. S., at 561. To be sure, "the power to regulate commerce, though broad indeed, has limits," Maryland v. Wirtz, supra, at 196, but nothing in our decision in Lopez suggests that those limits are breached by applying the FAA to disputes arising out of the commercial loan transactions in this case. Accordingly, the petition for writ of certiorari is granted, the judgment of the Supreme Court of Alabama is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered. |
3 | The Indiana procedure for pretrial commitment of incompetent criminal defendants set forth in Ind. Ann. Stat. 9-1706a provides that a trial judge with "reasonable ground" to believe the defendant to be incompetent to stand trial must appoint two examining physicians and schedule a competency hearing, at which the defendant may introduce evidence. If the court, on the basis of the physicians' report and "other evidence," finds that the defendant lacks "comprehension sufficient to understand the proceedings and make his defense," the trial is delayed and the defendant is remanded to the state department of mental health for commitment to an "appropriate psychiatric institution" until defendant shall become "sane." Other statutory provisions apply to commitment of citizens who are "feeble-minded, and are therefore unable properly to care for themselves." The procedures for committing such persons are substantially similar to those for determining a criminal defendant's pretrial competency, but a person committed as "feeble-minded" may be released "at any time" his condition warrants it in the judgment of the superintendent of the institution. Indiana also has a comprehensive commitment scheme for the "mentally ill," i. e., those with a "psychiatric disorder" as defined by the statute, who can be committed on a showing of mental illness and need for "care, treatment, training or detention." A person so committed may be released when the superintendent of the institution shall discharge him, or when he is cured. Petitioner in this case, a mentally defective deaf mute, who cannot read, write, or virtually otherwise communicate, was charged with two criminal offenses and committed under the 9-1706a procedure. The doctors' report showed that petitioner's condition precluded his understanding the nature of the charges against him or participating in his defense and their testimony showed that the prognosis was "rather dim"; that even if petitioner were not a deaf mute he would be incompetent to stand trial; and that petitioner's intelligence was not sufficient to enable him ever to develop the necessary communication skills. According to a deaf-school interpreter's testimony, the State had no facilities that could help petitioner learn minimal communication skills. After finding that petitioner "lack[ed] comprehension sufficient to make his defense," the court ordered petitioner committed until such time as the health department could certify petitioner's sanity to the court. Petitioner's counsel filed a motion for a new trial, which was denied. The State Supreme Court affirmed. Contending that his commitment was tantamount to a "life sentence" without his having been convicted of a crime, petitioner claims that commitment under 9-1706a deprived him of equal protection because, absent the criminal charges against him, the State would have had to proceed under the other statutory procedures for the feeble-minded or those for the mentally ill, under either of which petitioner would have been entitled to substantially greater rights. Petitioner also asserts that indefinite commitment under the section deprived him of due process and subjected him to cruel and unusual punishment. Held: 1. By subjecting petitioner to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all other persons not charged with offenses, thus condemning petitioner to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by ordinary civil commitment procedures, Indiana deprived petitioner of equal protection. Cf. Baxstrom v. Herold, . Pp. 723-731. 2. Indiana's indefinite commitment of a criminal defendant solely on account of his lack of capacity to stand trial violates due process. Such a defendant cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain competency in the foreseeable future. If it is determined that he will not, the State must either institute civil proceedings applicable to indefinite commitment of those not charged with crime, or release the defendant. Greenwood v. United States, , distinguished. Pp. 731-739. 3. Since the issue of petitioner's criminal responsibility at the time of the alleged offenses (as distinguished from the issue of his competency to stand trial) has not been determined and other matters of defense may remain to be resolved, it would be premature for this Court to dismiss the charges against petitioner. Pp. 739-741. 253 Ind. 487, 255 N. E. 2d 515, reversed and remanded. BLACKMUN, J., delivered the opinion of the Court, in which all Members joined except POWELL and REHNQUIST, JJ., who took no part in the consideration or decision of the case.Frank E. Spencer argued the cause for petitioner. With him on the brief were Robert Hollowell, Jr., and Robert Robinson.Sheldon A. Breskow argued the cause for respondent. On the brief were Theodore L. Sendak, Attorney General of Indiana, and William F. Thompson, Assistant Attorney General.MR. JUSTICE BLACKMUN delivered the opinion of the Court.We are here concerned with the constitutionality of certain aspects of Indiana's system for pretrial commitment of one accused of crime.Petitioner, Theon Jackson, is a mentally defective deaf mute with a mental level of a pre-school child. He cannot read, write, or otherwise communicate except through limited sign language. In May 1968, at age 27, he was charged in the Criminal Court of Marion County, Indiana, with separate robberies of two women. The offenses were alleged to have occurred the preceding July. The first involved property (a purse and its contents) of the value of four dollars. The second concerned five dollars in money. The record sheds no light on these charges since, upon receipt of not-guilty pleas from Jackson, the trial court set in motion the Indiana procedures for determining his competency to stand trial. Ind. Ann. Stat. 9-1706a (Supp. 1971),1 now Ind. Code 35-5-3-2 (1971). As the statute requires, the court appointed two psychiatrists to examine Jackson. A competency hearing was subsequently held at which petitioner was represented by counsel. The court received the examining doctors' joint written report and oral testimony from them and from a deaf-school interpreter through whom they had attempted to communicate with petitioner. The report concluded that Jackson's almost nonexistent communication skill, together with his lack of hearing and his mental deficiency, left him unable to understand the nature of the charges against him or to participate in his defense. One doctor testified that it was extremely unlikely that petitioner could ever learn to read or write and questioned whether petitioner even had the ability to develop any proficiency in sign language. He believed that the interpreter had not been able to communicate with petitioner to any great extent and testified that petitioner's "prognosis appears rather dim." The other doctor testified that even if Jackson were not a deaf mute, he would be incompetent to stand trial, and doubted whether petitioner had sufficient intelligence ever to develop the necessary communication skills. The interpreter testified that Indiana had no facilities that could help someone as badly off as Jackson to learn minimal communication skills.On this evidence, the trial court found that Jackson "lack[ed] comprehension sufficient to make his defense," 9-1706a, and ordered him committed to the Indiana Department of Mental Health until such time as that Department should certify to the court that "the defendant is sane."Petitioner's counsel then filed a motion for a new trial, contending that there was no evidence that Jackson was "insane," or that he would ever attain a status which the court might regard as "sane" in the sense of competency to stand trial. Counsel argued that Jackson's commitment under these circumstances amounted to a "life sentence" without his ever having been convicted of a crime, and that the commitment therefore deprived Jackson of his Fourteenth Amendment rights to due process and equal protection, and constituted cruel and unusual punishment under the Eighth Amendment made applicable to the States through the Fourteenth. The trial court denied the motion. On appeal the Supreme Court of Indiana affirmed, with one judge dissenting. 253 Ind. 487, 255 N. E. 2d 515 (1970). Rehearing was denied, with two judges dissenting. We granted certiorari, . For the reasons set forth below, we conclude that, on the record before us, Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him. Accordingly, we reverse.I INDIANA COMMITMENT PROCEDURES Section 9-1706a contains both the procedural and substantive requirements for pretrial commitment of incompetent criminal defendants in Indiana. If at any time before submission of the case to the court or jury the trial judge has "reasonable ground" to believe the defendant "to be insane,"2 he must appoint two examining physicians and schedule a competency hearing. The hearing is to the court alone, without a jury. The examining physicians' testimony and "other evidence" may be adduced on the issue of incompetency. If the court finds the defendant "has not comprehension sufficient to understand the proceedings and make his defense," trial is delayed or continued and the defendant is remanded to the state department of mental health to be confined in an "appropriate psychiatric institution." The section further provides that "[w]henever the defendant shall become sane" the superintendent of the institution shall certify that fact to the court, and the court shall order him brought on to trial. The court may also make such an order sua sponte. There is no statutory provision for periodic review of the defendant's condition by either the court or mental health authorities. Section 9-1706a by its terms does not accord the defendant any right to counsel at the competency hearing or otherwise describe the nature of the hearing; but Jackson was represented by counsel who cross-examined the testifying doctors carefully and called witnesses on behalf of the petitioner-defendant.Petitioner's central contention is that the State, in seeking in effect to commit him to a mental institution indefinitely, should have been required to invoke the standards and procedures of Ind. Ann. Stat. 22-1907, now Ind. Code 16-15-1-3 (1971), governing commitment of "feeble-minded" persons. That section provides that upon application of a "reputable citizen of the county" and accompanying certificate of a reputable physician that a person is "feeble-minded and is not insane or epileptic" (emphasis supplied), a circuit court judge shall appoint two physicians to examine such person. After notice, a hearing is held at which the patient is entitled to be represented by counsel. If the judge determines that the individual is indeed "feeble-minded," he enters an order of commitment and directs the clerk of the court to apply for the person's admission "to the superintendent of the institution for feeble-minded persons located in the district in which said county is situated." A person committed under this section may be released "at any time," provided that "in the judgment of the superintendent, the mental and physical condition of the patient justifies it." 22-1814, now Ind. Code 16-15-4-12 (1971). The statutes do not define either "feeble-mindedness" or "insanity" as used in 22-1907. But a statute establishing a special institution for care of such persons, 22-1801, refers to the duty of the State to provide care for its citizens who are "feeble-minded, and are therefore unable properly to care for themselves."3 These provisions evidently afford the State a vehicle for commitment of persons in need of custodial care who are "not insane" and therefore do not qualify as "mentally ill" under the State's general involuntary civil commitment scheme. See 22-1201 to 22-1256, now Ind. Code 16-14-9-1 to 16-14-9-31, 16-13-2-9 to 16-13-2-10, 35-5-3-4, 16-14-14-1 to 16-14-14-19, and 16-14-15-5, 16-14-15-1, and 16-14-19-1 (1971).Scant attention was paid this general civil commitment law by the Indiana courts in the present case. An understanding of it, however, is essential to a full airing of the equal protection claims raised by petitioner. Section 22-1201 (1) defines a "mentally ill person" as one who"is afflicted with a psychiatric disorder which substantially impairs his mental health; and, because of such psychiatric disorder, requires care, treatment, training or detention in the interest of the welfare of such person or the welfare of others of the community in which such person resides." Section 22-1201 (2) defines a "psychiatric disorder" to be any mental illness or disease, including any mental deficiency, epilepsy, alcoholism, or drug addiction. Other sections specify procedures for involuntary commitment of "mentally ill" persons that are substantially similar to those for commitment of the feeble-minded. For example, a citizen's sworn statement and the statement of a physician are required. 22-1212. The circuit court judge, the applicant, and the physician then consult to formulate a treatment plan. 22-1213. Notice to the individual is required, 22-1216, and he is examined by two physicians, 22-1215. There are provisions for temporary commitment. A hearing is held before a judge on the issue of mental illness. 22-1209, 22-1216, 22-1217. The individual has a right of appeal. 22-1210. An individual adjudged mentally ill under these sections is remanded to the department of mental health for assignment to an appropriate institution. 22-1209. Discharge is in the discretion of the superintendent of the particular institution to which the person is assigned, 22-1223; Official Opinion No. 54, Opinions of the Attorney General of Indiana, Dec. 30, 1966. The individual, however, remains within the court's custody, and release can therefore be revoked upon a hearing. Ibid.II EQUAL PROTECTION Because the evidence established little likelihood of improvement in petitioner's condition, he argues that commitment under 9-1706a in his case amounted to a commitment for life. This deprived him of equal protection, he contends, because, absent the criminal charges pending against him, the State would have had to proceed under other statutes generally applicable to all other citizens: either the commitment procedures for feeble-minded persons, or those for mentally ill persons. He argues that under these other statutes (1) the decision whether to commit would have been made according to a different standard, (2) if commitment were warranted, applicable standards for release would have been more lenient, (3) if committed under 22-1907, he could have been assigned to a special institution affording appropriate care, and (4) he would then have been entitled to certain privileges not now available to him.In Baxstrom v. Herold, , the Court held that a state prisoner civilly committed at the end of his prison sentence on the finding of a surrogate was denied equal protection when he was deprived of a jury trial that the State made generally available to all other persons civilly committed. Rejecting the State's argument that Baxstrom's conviction and sentence constituted adequate justification for the difference in procedures, the Court said that "there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments." 383 U.S., at 111-112; see United States ex rel. Schuster v. Herold, 410 F.2d 1071 (CA2), cert. denied, . The Court also held that Baxstrom was denied equal protection by commitment to an institution maintained by the state corrections department for "dangerously mentally ill" persons, without a judicial determination of his "dangerous propensities" afforded all others so committed.If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice. This was the precise holding of the Massachusetts Court in Commonwealth v. Druken, 356 Mass. 503, 507, 254 N. E. 2d 779, 781 (1969).4 The Baxstrom principle also has been extended to commitment following an insanity acquittal, Bolton v. HarrisApp. D.C. 1, 395 F.2d 642 (1968); Cameron v. MullenApp. D.C. 235, 387 F.2d 193 (1967); People v. Lally, 19 N. Y. 2d 27, 224 N. E. 2d 87 (1966), and to commitment in lieu of sentence following conviction as a sex offender. Humphrey v. Cady, .Respondent argues, however, that because the record fails to establish affirmatively that Jackson will never improve, his commitment "until sane" is not really an indeterminate one. It is only temporary, pending possible change in his condition. Thus, presumably, it cannot be judged against commitments under other state statutes that are truly indeterminate. The State relies on the lack of "exactitude" with which psychiatry can predict the future course of mental illness, and on the Court's decision in what is claimed to be "a fact situation similar to the case at hand" in Greenwood v. United States, .Were the State's factual premise that Jackson's commitment is only temporary a valid one, this might well be a different case. But the record does not support that premise. One of the doctors testified that in his view Jackson would be unable to acquire the substantially improved communication skills that would be necessary for him to participate in any defense. The prognosis for petitioner's developing such skills, he testified, appeared "rather dim." In answer to a question whether Jackson would ever be able to comprehend the charges or participate in his defense, even after commitment and treatment, the doctor said, "I doubt it, I don't believe so." The other psychiatrist testified that even if Jackson were able to develop such skills, he would still be unable to comprehend the proceedings or aid counsel due to his mental deficiency. The interpreter, a supervising teacher at the state school for the deaf, said that he would not be able to serve as an interpreter for Jackson or aid him in participating in a trial, and that the State had no facilities that could, "after a length of time," aid Jackson in so participating. The court also heard petitioner's mother testify that Jackson already had undergone rudimentary out-patient training in communications skills from the deaf and dumb school in Indianapolis over a period of three years without noticeable success. There is nothing in the record that even points to any possibility that Jackson's present condition can be remedied at any future time.Nor does Greenwood,5 which concerned the constitutional validity of 18 U.S.C. 4244 to 4248, lend support to respondent's position. That decision, addressing the "narrow constitutional issue raised by the order of commitment in the circumstances of this case," 350 U.S., at 375, upheld the Federal Government's constitutional authority to commit an individual found by the District Court to be "insane," incompetent to stand trial on outstanding criminal charges, and probably dangerous to the safety of the officers, property, or other interests of the United States. The Greenwood Court construed the federal statutes to deal "comprehensively" with defendants "who are insane or mentally incompetent to stand trial," and not merely with "the problem of temporary mental disorder." 350 U.S., at 373. Though Greenwood's prospects for improvement were slim, the Court held that "in the situation before us," where the District Court had made an explicit finding of dangerousness, that fact alone "does not defeat federal power to make this initial commitment." 350 U.S., at 375. No issue of equal protection was raised or decided. See Petitioner's Brief, No. 460, O. T. 1955, pp. 2, 7-9. It is clear that the Government's substantive power to commit on the particular findings made in that case was the sole question there decided. 350 U.S., at 376. We note also that neither the Indiana statute nor state practice makes the likelihood of the defendant's improvement a relevant factor. The State did not seek to make any such showing, and the record clearly establishes that the chances of Jackson's ever meeting the competency standards of 9-1706a are at best minimal, if not nonexistent. The record also rebuts any contention that the commitment could contribute to Jackson's improvement. Jackson's 9-1706a commitment is permanent in practical effect.We therefore must turn to the question whether, because of the pendency of the criminal charges that triggered the State's invocation of 9-1706a, Jackson was deprived of substantial rights to which he would have been entitled under either of the other two state commitment statutes. Baxstrom held that the State cannot withhold from a few the procedural protections or the substantive requirements for commitment that are available to all others. In this case commitment procedures under all three statutes appear substantially similar: notice, examination by two doctors, and a full judicial hearing at which the individual is represented by counsel and can cross-examine witnesses and introduce evidence. Under each of the three statutes, the commitment determination is made by the court alone, and appellate review is available.In contrast, however, what the State must show to commit a defendant under 9-1706a, and the circumstances under which an individual so committed may be released, are substantially different from the standards under the other two statutes.Under 9-1706a, the State needed to show only Jackson's inability to stand trial. We are unable to say that, on the record before us, Indiana could have civilly committed him as mentally ill under 22-1209 or committed him as feeble-minded under 22-1907. The former requires at least (1) a showing of mental illness and (2) a showing that the individual is in need of "care, treatment, training or detention." 22-1201 (1). Whether Jackson's mental deficiency would meet the first test is unclear; neither examining physician addressed himself to this. Furthermore, it is problematical whether commitment for "treatment" or "training" would be appropriate since the record establishes that none is available for Jackson's condition at any state institution. The record also fails to establish that Jackson is in need of custodial care or "detention." He has been employed at times, and there is no evidence that the care he long received at home has become inadequate. The statute appears to require an independent showing of dangerousness ("requires ... detention in the interest of the welfare of such person or ... others ..."). Insofar as it may require such a showing, the pending criminal charges are insufficient to establish it, and no other supporting evidence was introduced. For the same reasons, we cannot say that this record would support a feeble-mindedness commitment under 22-1907 on the ground that Jackson is "unable properly to care for [himself]."6 22-1801.More important, an individual committed as feeble-minded is eligible for release when his condition "justifies it," 22-1814, and an individual civilly committed as mentally ill when the "superintendent or administrator shall discharge such person, or [when] cured of such illness." 22-1223 (emphasis supplied). Thus, in either case release is appropriate when the individual no longer requires the custodial care or treatment or detention that occasioned the commitment, or when the department of mental health believes release would be in his best interests. The evidence available concerning Jackson's past employment and home care strongly suggests that under these standards he might be eligible for release at almost any time, even if he did not improve.7 On the other hand, by the terms of his present 9-1706a commitment, he will not be entitled to release at all, absent an unlikely substantial change for the better in his condition.8 Baxstrom did not deal with the standard for release, but its rationale is applicable here. The harm to the individual is just as great if the State, without reasonable justification, can apply standards making his commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release.As we noted above, we cannot conclude that pending criminal charges provide a greater justification for different treatment than conviction and sentence. Consequently, we hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by 22-1209 or 22-1907, Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment.9 III DUE PROCESS For reasons closely related to those discussed in Part II above, we also hold that Indiana's indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the Fourteenth Amendment's guarantee of due process.A. The Federal System. In the federal criminal system, the constitutional issue posed here has not been encountered precisely because the federal statutes have been construed to require that a mentally incompetent defendant must also be found "dangerous" before he can be committed indefinitely. But the decisions have uniformly articulated the constitutional problems compelling this statutory interpretation.The federal statute, 18 U.S.C. 4244 to 4246, is not dissimilar to the Indiana law. It provides that a defendant found incompetent to stand trial may be committed "until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law." 4246. Section 4247, applicable on its face only to convicted criminals whose federal sentences are about to expire, permits commitment if the prisoner is (1) "insane or mentally incompetent" and (2) "will probably endanger the safety of the officers, the property, or other interests of the United States, and ... suitable arrangements for the custody and care of the prisoner are not otherwise available," that is, in a state facility. See Greenwood v. United States, 350 U.S., at 373-374. One committed under this section, however, is entitled to release when any of the three conditions no longer obtains, "whichever event shall first occur." 4248. Thus, a person committed under 4247 must be released when he no longer is "dangerous."In Greenwood, the Court upheld the pretrial commitment of a defendant who met all three conditions of 4247, even though there was little likelihood that he would ever become competent to stand trial. Since Greenwood had not yet stood trial, his commitment was ostensibly under 4244. By the related release provision, 4246, he could not have been released until he became competent. But the District Court had in fact applied 4247, and found specifically that Greenwood would be dangerous if not committed. This Court approved that approach, holding 4247 applicable before trial as well as to those about to be released from sentence. 350 U.S., at 374. Accordingly, Greenwood was entitled to release when no longer dangerous, 4248, even if he did not become competent to stand trial and thus did not meet the requirement of 4246. Under these circumstances, the Court found the commitment constitutional.Since Greenwood, federal courts without exception have found improper any straightforward application of 4244 and 4246 to a defendant whose chance of attaining competency to stand trial is slim, thus effecting an indefinite commitment on the ground of incompetency alone. United States v. Curry, 410 F.2d 1372 (CA4 1969); United States v. Walker, 335 F. Supp. 705 (ND Cal. 1971); Cook v. Ciccone, 312 F. Supp. 822 (WD Mo. 1970); United States v. Jackson, 306 F. Supp. 4 (ND Cal. 1969); Maurietta v. Ciccone, 305 F. Supp. 775 (WD Mo. 1969). See In re Harmon, 425 F.2d 916 (CA1 1970); United States v. Klein, 325 F.2d 283 (CA2 1963); Martin v. Settle, 192 F. Supp. 156 (WD Mo. 1961); Royal v. Settle, 192 F. Supp. 176 (WD Mo. 1959). The holding in each of these cases was grounded in an expressed substantial doubt that 4244 and 4246 could survive constitutional scrutiny if interpreted to authorize indefinite commitment.These decisions have imposed a "rule of reasonableness" upon 4244 and 4246. Without a finding of dangerousness, one committed thereunder can be held only for a "reasonable period of time" necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future. If the chances are slight, or if the defendant does not in fact improve, then he must be released or granted a 4247-4248 hearing.B. The States. Some States10 appear to commit indefinitely a defendant found incompetent to stand trial until he recovers competency. Other States require a finding of dangerousness to support such a commitment11 or provide forms of parole.12 New York has recently enacted legislation mandating release of incompetent defendants charged with misdemeanors after 90 days of commitment, and release and dismissal of charges against those accused of felonies after they have been committed for two-thirds of the maximum potential prison sentence.13 The practice of automatic commitment with release conditioned solely upon attainment of competence has been decried on both policy and constitutional grounds.14 Recommendations for changes made by commentators and study committees have included incorporation into pretrial commitment procedures of the equivalent of the federal "rule of reason," a requirement of a finding of dangerousness or of full-scale civil commitment, periodic review by court or mental health administrative personnel of the defendant's condition and progress, and provisions for ultimately dropping charges if the defendant does not improve.15 One source of this criticism is undoubtedly the empirical data available which tend to show that many defendants committed before trial are never tried, and that those defendants committed pursuant to ordinary civil proceedings are, on the average, released sooner than defendants automatically committed solely on account of their incapacity to stand trial.16 Related to these statistics are substantial doubts about whether the rationale for pretrial commitment - that care or treatment will aid the accused in attaining competency - is empirically valid given the state of most of our mental institutions.17 However, very few courts appear to have addressed the problem directly in the state context.In United States ex rel. Wolfersdorf v. Johnston, 317 F. Supp. 66 (SDNY 1970), an 86-year-old defendant committed for nearly 20 years as incompetent to stand trial on state murder and kidnaping charges applied for federal habeas corpus. He had been found "not dangerous," and suitable for civil commitment. The District Court granted relief. It held that petitioner's incarceration in an institution for the criminally insane constituted cruel and unusual punishment, and that the "shocking circumstances" of his commitment violated the Due Process Clause. The court quoted approvingly the language of Cook v. Ciccone, 312 F. Supp., at 824, concerning the "substantial injustice in keeping an unconvicted person in ... custody to await trial where it is plainly evident his mental condition will not permit trial within a reasonable period of time."In a 1970 case virtually indistinguishable from the one before us, the Illinois Supreme Court granted relief to an illiterate deaf mute who had been indicted for murder four years previously but found incompetent to stand trial on account of his inability to communicate, and committed. People ex rel. Myers v. Briggs, 46 Ill. 2d 281, 263 N. E. 2d 109 (1970). The institution where petitioner was confined had determined, "[I]t now appears that [petitioner] will never acquire the necessary communication skills needed to participate and cooperate in his trial." Petitioner, however, was found to be functioning at a "nearly normal level of performance in areas other than communication." The State contended petitioner should not be released until his competency was restored. The Illinois Supreme Court disagreed. It held: "This court is of the opinion that this defendant, handicapped as he is and facing an indefinite commitment because of the pending indictment against him, should be given an opportunity to obtain a trial to determine whether or not he is guilty as charged or should be released." Id., at 288, 263 N. E. 2d, at 113.C. This Case. Respondent relies heavily on Greenwood to support Jackson's commitment. That decision is distinguishable. It upheld only the initial commitment without considering directly its duration or the standards for release. It justified the commitment by treating it as if accomplished under allied statutory provisions relating directly to the individual's "insanity" and society's interest in his indefinite commitment, factors not considered in Jackson's case. And it sustained commitment only upon the finding of dangerousness. As Part A, supra, shows, all these elements subsequently have been held not simply sufficient, but necessary, to sustain a commitment like the one involved here.The States have traditionally exercised broad power to commit persons found to be mentally ill.18 The substantive limitations on the exercise of this power and the procedures for invoking it vary drastically among the States.19 The particular fashion in which the power is exercised - for instance, through various forms of civil commitment, defective delinquency laws, sexual psychopath laws, commitment of persons acquitted by reason of insanity - reflects different combinations of distinct bases for commitment sought to be vindicated.20 The bases that have been articulated include dangerousness to self, dangerousness to others, and the need for care or treatment or training.21 Considering the number of persons affected,22 it is perhaps remarkable that the substantive constitutional limitations on this power have not been more frequently litigated.23 We need not address these broad questions here. It is clear that Jackson's commitment rests on proceedings that did not purport to bring into play, indeed did not even consider relevant, any of the articulated bases for exercise of Indiana's power of indefinite commitment. The state statutes contain at least two alternative methods for invoking this power. But Jackson was not afforded any "formal commitment proceedings addressed to [his] ability to function in society,"24 or to society's interest in his restraint, or to the State's ability to aid him in attaining competency through custodial care or compulsory treatment, the ostensible purpose of the commitment. At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.25 Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial.These conclusions make it unnecessary for us to reach petitioner's Eighth-Fourteenth Amendment claim.IV DISPOSITION OF THE CHARGES Petitioner also urges that fundamental fairness requires that the charges against him now be dismissed. The thrust of his argument is that the record amply establishes his lack of criminal responsibility at the time the crimes are alleged to have been committed. The Indiana court did not discuss this question. Apparently it believed that by reason of Jackson's incompetency commitment the State was entitled to hold the charges pending indefinitely. On this record, Jackson's claim is a substantial one. For a number of reasons, however, we believe the issue is not sufficiently ripe for ultimate decision by us at this time.A. Petitioner argues that he has already made out a complete insanity defense. Jackson's criminal responsibility at the time of the alleged offenses, however, is a distinct issue from his competency to stand trial. The competency hearing below was not directed to criminal responsibility, and evidence relevant to it was presented only incidentally.26 Thus, in any event, we would have to remand for further consideration of Jackson's condition in the light of Indiana's law of criminal responsibility. B. Dismissal of charges against an incompetent accused has usually been thought to be justified on grounds not squarely presented here: particularly, the Sixth-Fourteenth Amendment right to a speedy trial,27 or the denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence.28 Jackson did not present the Sixth-Fourteenth Amendment issue to the state courts. Nor did the highest state court rule on the due process issue, if indeed it was presented to that court in precisely the above-described form. We think, in light of our holdings in Parts II and III, that the Indiana courts should have the first opportunity to determine these issues.C. Both courts and commentators have noted the desirability of permitting some proceedings to go forward despite the defendant's incompetency.29 For instance, 4.06 (3) of the Model Penal Code would permit an incompetent accused's attorney to contest any issue "susceptible of fair determination prior to trial and without the personal participation of the defendant." An alternative draft of 4.06 (4) of the Model Penal Code would also permit an evidentiary hearing at which certain defenses, not including lack of criminal responsibility, could be raised by defense counsel on the basis of which the court might quash the indictment. Some States have statutory provisions permitting pretrial motions to be made or even allowing the incompetent defendant a trial at which to establish his innocence, without permitting a conviction.30 We do not read this Court's previous decisions31 to preclude the States from allowing, at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel. Of course, if the Indiana courts conclude that Jackson was almost certainly not capable of criminal responsibility when the offenses were committed, dismissal of the charges might be warranted. But even if this is not the case, Jackson may have other good defenses that could sustain dismissal or acquittal and that might now be asserted. We do not know if Indiana would approve procedures such as those mentioned here, but these possibilities will be open on remand. Reversed and remanded.MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. |
2 | Title 18 U.S.C. 1382 makes it unlawful to reenter a military base after having been "ordered not to reenter by any officer in command or charge thereof." In 1972, respondent received from the commanding officer of Hickam Air Force Base in Hawaii a letter (bar letter) forbidding him to reenter the base without written permission from the commanding officer or his designate. The letter was issued after respondent and a companion entered the base and destroyed Government property. In 1981, respondent, with some friends, entered Hickam again during the base's annual open house for Armed Forces Day. Respondent's companions engaged in a peaceful demonstration criticizing the nuclear arms race, but respondent only took photographs of the displays at the open house and did not disrupt the activities there. The commanding officer directed the chief of the security police to have the individuals cease their demonstration and further informed him that he believed one of the individuals involved had been barred from Hickam. Respondent and his companions were escorted off the base, and respondent was subsequently convicted in Federal District Court of violating 1382. The Court of Appeals reversed, holding that respondent had a First Amendment right to enter Hickam during the open house because the base had been transformed into a temporary public forum.Held: 1. Section 1382 applies to respondent's conduct. Viewed in light of the ordinary meaning of the statutory language, respondent violated 1382 when he reentered Hickam in 1981. Moreover, 1382's legislative history and its purpose of protecting Government property in relation to the national defense support the statute's application to respondent. There is no merit to respondent's contentions that 1382 does not allow indefinite exclusion from a military base, but instead applies only to reentry that occurs within some "reasonable" period of time after a person's ejection; that 1382 does not apply when a military base is open to the general public for purposes of attending an open house; and that reentry is unlawful under 1382 only if a person knows that his conduct violates an extant order not to return, whereas respondent did not subjectively believe that his attendance at the open house was contrary to a valid order barring reentry. And the assertion that respondent lacked notice that his reentry was prohibited is implausible, since the bar letter did not indicate that it applied only when public access to Hickam was restricted, and any uncertainty he had in this regard might have been eliminated had he sought, in accord with the bar letter, permission to reenter from the commanding officer. Pp. 679-684. 2. The Court of Appeals erred in holding that the First Amendment bars respondent's conviction for violating 1382 by his reentry during the open house. Flower v. United States, , distinguished. A military base generally is not a public forum, and Hickam did not become a public forum merely because the base was used to communicate ideas or information during the open house. Moreover, regardless of whether Hickam constituted a public forum on the day of the open house, respondent's exclusion did not violate the First Amendment. The fact that respondent had previously received a valid bar letter distinguished him from the general public and provided a reasonable ground for excluding him from the base. Nor does the general exclusion of recipients of bar letters from military open houses violate the First Amendment on the asserted ground that such exclusion is greater than is essential to the furtherance of Government interests in the security of military installations. Exclusion of holders of bar letters in such circumstances promotes an important Government interest in assuring the security of military installations. Nothing in the First Amendment requires military commanders to wait until persons subject to a valid bar order have entered a military base to see if they will conduct themselves properly during an open house. Pp. 684-690. 3. Since the Court of Appeals did not address whether, on the facts of this case, application of the 1972 bar letter to respondent was so patently arbitrary as to violate due process, this Court does not decide that issue. P. 690. 710 F.2d 1410, reversed and remanded.O'CONNOR, 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 and MARSHALL, JJ., joined, post, p. 691.David A. Strauss argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Wallace, John F. De Pue, and Major Robert T. Lee.Charles S. Sims argued the cause for respondent. With him on the brief were Burt Neuborne, William A. Harrison, and Yvonne Chotzen. JUSTICE O'CONNOR delivered the opinion of the Court.The question presented is whether respondent may be convicted for violating 18 U.S.C. 1382, which makes it unlawful to reenter a military base after having been barred by the commanding officer. Respondent attended an open house at a military base some nine years after the commanding officer ordered him not to reenter without written permission. The Court of Appeals for the Ninth Circuit held that respondent could not be convicted for violating 1382 because he had a First Amendment right to enter the military base during the open house. 710 F.2d 1410 (1983). We granted certiorari, , and we now reverse.IThe events underlying this case date from 1972, when respondent and a companion entered Hickam Air Force Base (Hickam) in Hawaii ostensibly to present a letter to the commanding officer. Instead, they obtained access to secret Air Force documents and destroyed the documents by pouring animal blood on them. For these acts, respondent was convicted of conspiracy to injure Government property in violation of 18 U.S.C. 371, 1361. Respondent also received a "bar letter" from the Commander of Hickam informing him that he was forbidden to "reenter the confines of this installation without the written permission of the Commander or an officer designated by him to issue a permit of reentry." App. 43; cf. Greer v. Spock, . The bar letter directed respondent to 18 U.S.C. 1382 and quoted the statute, which provides: "Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard Reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or "Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer in command or charge thereof - "Shall be fined not more than $500 or imprisoned not more than six months, or both." In subsequent years, respondent, according to his own testimony, received bar letters from a number of military bases in Hawaii. App. 30. In March 1981, he and eight companions improperly entered the Nuclear War Policy and Plans Office at Camp Smith in Hawaii and defaced Government property. Ibid. Respondent testified that he was not prosecuted for what he termed his "rather serious clear-cut case" of civil disobedience at Camp Smith, ibid., and that the 1972 bar letter was the only one he had ever received for Hickam. Id., at 28, 30.Respondent entered Hickam again on May 16, 1981, during the base's annual open house for Armed Forces Day. On that day, members of the public, who ordinarily can enter Hickam only with permission, are allowed to enter portions of the base to view displays of aircraft and other military equipment and to enjoy entertainment provided by military and nonmilitary performers. Press releases issued by the base declared that "[w]hile Hickam is normally a closed base, the gates will be open to the public for this 32nd Annual Armed Forces Day Open House." Id., at 45. Radio announcements similarly proclaimed that "the public is invited and it's all free." Id., at 48.With four friends, respondent attended the open house in order to engage in a peaceful demonstration criticizing the nuclear arms race. Id., at 27-28. His companions gathered in front of a B-52 bomber display, unfurled a banner reading "Carnival of Death," and passed out leaflets. Respondent took photographs of the displays and did not disrupt the activities of the open house. The Commander of Hickam summoned Major Jones, the Chief of Security Police at the base, and told him to have the individuals cease their demonstration. Id., at 9. Before respondent was approached by military police, the Commander further informed Major Jones that he believed one of the individuals involved in the demonstration had been barred from Hickam. Id., at 9-10, 13-14. Respondent and his companions were apprehended and escorted off the base.An information filed on July 1, 1981, charged respondent with violating 1382 because on May 16, 1981, he "unlawfully and knowingly" reentered Hickam Air Force Base "after [he] had previously been ordered not to reenter by an officer in command." Id., at 3. Respondent was convicted after a bench trial and sentenced to three months' imprisonment. Id., at 1. On appeal, respondent challenged his conviction on three grounds. 710 F.2d, at 1413. First, he argued that he had written permission to reenter based on the advertisements inviting the public to attend the open house. Second, respondent contended that the 9-year-old bar letter was ineffective because it violated due process. Finally, he argued that his presence at Hickam during the open house was protected by the First Amendment. The Court of Appeals rejected respondent's first argument and found it unnecessary to consider the due process arguments. Id., at 1413, 1417. The conviction must be reversed, the Court of Appeals held, because Hickam had been transformed into a temporary public forum during the open house, and the military could not exclude respondent from such a forum. Id., at 1417.IIIn the order granting certiorari, this Court asked the parties to address the additional question "[w]hether the respondent's attendance at the `open house' at Hickam Air Force Base on May 16, 1981, was the kind of reentry that Congress intended to prohibit in 18 U.S.C. 1382." 469 U.S., at 1071. Although this issue was not raised by the parties or passed upon by the Court of Appeals, we address it to "`ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.'" United States v. Grace, , quoting Crowell v. Benson, .Courts in applying criminal laws generally must follow the plain and unambiguous meaning of the statutory language. Garcia v. United States, ; United States v. Turkette, . "[O]nly the most extraordinary showing of contrary intentions" in the legislative history will justify a departure from that language. Garcia, supra, at 75. This proposition is not altered simply because application of a statute is challenged on constitutional grounds. Statutes should be construed to avoid constitutional questions, but this interpretative canon is not a license for the judiciary to rewrite language enacted by the legislature. Heckler v. Mathews, . Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, 1, of the Constitution. United States v. Locke, . Proper respect for those powers implies that "[s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly v. Dollar Park and Fly, Inc., .Turning to the statute involved here, we conclude that 1382 applies to respondent's conduct. The relevant portion of the statute makes it unlawful for a person to reenter a military base after having been ordered not to do so by the commanding officer. Unless the statutory language is to be emptied of its ordinary meaning, respondent violated the terms of 1382 when he reentered Hickam in 1981 contrary to the bar letter. Respondent, however, argues that 1382 does not apply to his attendance at the open house for three reasons. First, he contends that 1382 does not allow indefinite exclusion from a military base, but instead applies only when a person has reentered "within a reasonable period of time after being ejected." Brief for Respondent 10. Second, respondent maintains that Congress did not intend 1382 to apply when a military base is opened to the general public for purposes of attending an open house. Respondent finally argues that reentry is unlawful under 1382 only if a person knows that his conduct violates an extant order not to return. None of these arguments is persuasive.The legislative history of 1382, although sparse, fully supports application of the statute to respondent. The statute was enacted in virtually its present form as part of a general revision and codification of the federal penal laws. Act of Mar. 4, 1909, ch. 321, 45, 35 Stat. 1097. Both the War Department and the Department of Justice supported the statute as an extension of existing prohibitions on sabotage. The congressional Reports explained:"[I]t ... is designed to punish persons who, having been ejected from a fort, reservation, etc., return for the purpose of obtaining information respecting the strength, etc., of the fort, etc., or for the purpose of inducing the men to visit saloons, dives, and similar places. Such persons may now go upon forts and reservations repeatedly for such purposes and there is no law to punish them." S. Rep. No. 10, 60th Cong., 1st Sess., pt. 1, p. 16 (1908); H. R. Rep. No. 2, 60th Cong., 1st Sess., pt. 1, p. 16 (1908). The congressional Reports, as well as the floor debates, 42 Cong. Rec. 689 (1908) (remarks of Reps. Moon and Williams), indicate that the primary purpose of 1382 was to punish spies and panderers for repeated entry into military installations. Nonetheless, 1382 by its terms is not limited to such persons, and such a restrictive reading of the statute would frustrate its more general purpose of "protect[ing] the property of the Government so far as it relates to the national defense." 42 Cong. Rec. 689 (1908) (remarks of Reps. Moon and Payne). One need hardly strain to conclude that this purpose is furthered by applying 1382 to respondent, who has repeatedly entered military installations unlawfully and engaged in vandalism against Government property.We find no merit to the reasons respondent offers for concluding he did not violate 1382. First, nothing in the statute or its history supports the assertion that 1382 applies only to reentry that occurs within some "reasonable" period of time. Respondent argues that most prosecutions for violating the second paragraph of 1382 have involved reentry within a year after issuance of a bar order, and further asserts that recent bar letters for Hickam have been limited to a 1- or 2-year period. We agree that prosecution under 1382 would be impermissible if based on an invalid bar order. But even assuming the accuracy of respondent's description of prosecutorial and military policy, we do not believe that it justifies engrafting onto 1382 a judicially defined time limit. Although due process or military regulations might limit the effective lifetime of a bar order, 1382 by its own terms does not limit the period for which a commanding officer may exclude a civilian from a military installation.Section 1382, we further conclude, applies during an open house. Of course, Congress in 1909 very likely gave little thought to open houses on military bases. The pertinent question, however, is whether 1382 applies to a base that is open to the general public. The language of the statute does not limit 1382 to military bases where access is restricted. Moreover, the legislative intent to punish panderers and others who repeatedly enter military facilities suggests that Congress was concerned with bases that are to some extent open to nonmilitary personnel. Finally, limiting the prohibition on reentry to closed military bases would make the second paragraph of 1382 almost superfluous, because the first paragraph of the statute already makes it unlawful for a person to go upon a military installation "for any purpose prohibited by law or lawful regulation." 18 U.S.C. 1382. Cf. Heckler v. Chaney, (noting common-sense principle that a statute is to be read to give effect to each of its clauses).The final statutory argument advanced by respondent is that he did not violate 1382 because he did not subjectively believe that his attendance at the open house was contrary to a valid order barring reentry. This argument misperceives the knowledge required for a violation of the statute. Cf. United States v. Parrilla Bonilla, 648 F.2d 1373, 1377 (CA1 1981) (specific intent to violate particular regulation not required for violation of first paragraph of 1382). The second paragraph of 1382 does not contain the word "knowingly" or otherwise refer to the defendant's state of mind, and there is no requirement that the Government prove improper motive or intent. Holdridge v. United States, 282 F.2d 302, 310-311 (CA8 1960). Respondent does not dispute that he received the bar letter in 1972 and deliberately and knowingly reentered the base to which the letter applied. Nothing in the language of 1382 or in previous judicial decisions supports the rather remarkable proposition that merely because respondent thought the bar order was no longer effective, he was thereby immunized from prosecution. Cf. United States v. International Minerals & Chemical Corp., .We also reject the suggestion, made in the dissenting opinion, that 1382 does not apply because the circumstances did not reasonably indicate to respondent that his reentry during the open house was prohibited. Post, at 696-697, 701. The assertion that respondent lacked notice that his entry was prohibited is implausible. The bar letter in no way indicated that it applied only when public access to Hickam was restricted. Any uncertainty respondent had in this regard might have been eliminated had he sought, in accord with the bar letter, permission to reenter from the base commander. There is no contention that respondent ever asked to have the bar letter rescinded or otherwise requested permission to reenter the base. Moreover, the dissenting opinion exaggerates the implications of our holding. We have no occasion to decide in what circumstances, if any, 1382 can be applied where anyone other than the base commander has validly ordered a person not to reenter a military base. Nor do we decide or suggest that the statute can apply where a person unknowingly or unwillingly reenters a military installation. Finally, we note that respondent has not disputed that he entered a portion of Hickam that was a "military reservation, army post, fort, or arsenal" within the meaning of 1382.IIIThe Court of Appeals held that the First Amendment bars respondent's conviction for violating 1382. A military base, the court acknowledged, is ordinarily not a public forum for First Amendment purposes even if it is open to the public. See Greer v. Spock, . Nonetheless, the court relied on Flower v. United States, (per curiam), to conclude that portions of Hickam constituted at least a temporary public forum because the military had opened those areas to the public for purposes related to expression. 710 F.2d, at 1414-1417. Having found that the public had a First Amendment right to hold signs and to distribute leaflets at Hickam on Armed Forces Day, the Court of Appeals then considered whether the military could rely on the bar letter to exclude respondent from the base. Id., at 1417. The court, again relying on Flower, held that the military lacks power to exclude persons from a military base that has become a public forum. 710 F.2d, at 1417.In holding that 1382 cannot be applied during an open house, the Court of Appeals misapprehended the significance of Flower. As this Court later observed in Greer, the decision in Flower must be viewed as an application of established First Amendment doctrine concerning expressive activity that takes place in a municipality's open streets, sidewalks, and parks. 424 U.S., at 835-836. Flower did not adopt any novel First Amendment principles relating to military bases, but instead concluded that the area in question was appropriately considered a public street. There is "no generalized constitutional right to make political speeches or distribute leaflets," id., at 838, on military bases, even if they are generally open to the public. Id., at 830, 838, and n. 10. Greer clarified that the significance of the per curiam opinion in Flower is limited by the unusual facts underlying the earlier decision. 424 U.S., at 837.The Court in Flower summarily reversed a conviction under 1382 of a civilian who entered a military reservation after receiving a bar letter. At the time of his arrest, the civilian was "quietly distributing leaflets on New Braunfels Avenue at a point within the limits of Fort Sam Houston" in San Antonio, Texas. 407 U.S., at 197. No sentry was posted anywhere along the street, which was open to unrestricted civilian traffic 24 hours a day. Id., at 198. The Court determined that New Braunfels Avenue was a public thoroughfare no different than other streets in the city, and that the military had abandoned not only the right to exclude civilian traffic from the avenue, but also any right to exclude leafleteers. Greer v. Spock, supra, at 835. The defendant in Flower received a bar letter because he participated in an attempt to distribute unauthorized publications on the open military base. 407 U.S., at 197; United States v. Flower, 452 F.2d 80, 82, 87 (CA5 1971). This was the very activity that Flower held protected by the First Amendment.Flower cannot plausibly be read to hold that regardless of the events leading to issuance of a bar letter, a person may not subsequently be excluded from a military facility that is temporarily open to the public. Instead, Flower establishes that where a portion of a military base constitutes a public forum because the military has abandoned any right to exclude civilian traffic and any claim of special interest in regulating expression, see Greer v. Spock, supra, at 836-838, a person may not be excluded from that area on the basis of activity that is itself protected by the First Amendment. Properly construed, Flower is simply inapplicable to this case. There is no suggestion that respondent's acts of vandalism in 1972, which resulted in the issuance of the bar letter, were activities protected by the First Amendment. The observation made by the Court of Appeals, 710 F.2d, at 1417, that enforcement of the bar letter was precipitated by respondent's "peaceful expressive activity" misses the point. Respondent was prosecuted not for demonstrating at the open house, but for reentering the base after he had been ordered not to do so.Respondent argues that because Hickam was temporarily transformed into a public forum, the exercise of standardless discretion by the base commander to exclude him from the base violates the First Amendment. Cf. Shuttlesworth v. Birmingham, . The conclusion of the Court of Appeals that Hickam was ever a public forum is dubious. Military bases generally are not public fora, and Greer expressly rejected the suggestion that "whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a `public forum' for purposes of the First Amendment." 424 U.S., at 836. See also United States v. Grace, 461 U.S., at 177. Nor did Hickam become a public forum merely because the base was used to communicate ideas or information during the open house. United States Postal Service v. Greenburgh Civic Assns., , n. 6 (1981). The District Court did not make express findings on the nature of public access to Hickam during the open house, and the record does not suggest that the military so completely abandoned control that the base became indistinguishable from a public street as in Flower. Whether or not Hickam constituted a public forum on the day of the open house, the exclusion of respondent did not violate the First Amendment. Respondent concedes that the commander of Hickam could exclude him from the closed base, but contends this power was extinguished when the public was invited to enter on Armed Forces Day. We do not agree that "the historically unquestioned power of a commanding officer to exclude civilians from the area of his command," Cafeteria Workers v. McElroy, , should be analyzed in the same manner as government regulation of a traditional public forum simply because an open house was held at Hickam. See Greer v. Spock, 424 U.S., at 838, n. 10 (fact that speakers previously allowed on base "did not leave the authorities powerless thereafter to prevent any civilian from entering ... to speak on any subject whatever"). The fact that respondent had previously received a valid bar letter distinguished him from the general public and provided a reasonable grounds for excluding him from the base. That justification did not become less weighty when other persons were allowed to enter. Indeed, given the large number of people present during an open house, the need to preserve security by excluding those who have previously received bar letters could become even more important, because the military may be unable to monitor closely who comes and goes. Where a bar letter is issued on valid grounds, a person may not claim immunity from its prohibition on entry merely because the military has temporarily opened a military facility to the public.Section 1382 is content-neutral and serves a significant Government interest by barring entry to a military base by persons whose previous conduct demonstrates that they are a threat to security. Application of a facially neutral regulation that incidentally burdens speech satisfies the First Amendment 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, . Respondent argues that even if O'Brien applies here, the general exclusion of recipients of bar letters from military open houses fails under the First Amendment because it is greater than is essential to the furtherance of Government interests in the security of military installations.Respondent maintains that enforcing bar letters is not essential to security because reported cases concerning 1382 have not involved vandalism or other misconduct during open houses. Moreover, respondent asserts that persons holding bar letters have been allowed to attend open houses on bases other than Hickam. Finally, respondent contends that the Government interests were adequately served by the security measures taken during the open house and by statutes that punish any misconduct occurring at such events. Cf. 710 F.2d, at 1417 (noting that "sensitive areas of Hickam were cordoned off and protected by guards"). Respondent's arguments in this regard misapprehend the third element of the O'Brien standard. We acknowledge that barring respondent from Hickam was not "essential" in any absolute sense to security at the military base. The military presumably could have provided him with a military police chaperone during the open house. This observation, however, provides an answer to the wrong question by focusing on whether there were conceivable alternatives to enforcing the bar letter in this case.The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important government interests. See Clark v. Community for Creative Non-Violence, ("the validity of this regulation need not be judged solely by reference to the demonstration at hand"). Regulations that burden speech incidentally or control the time, place, and manner of expression, see id., at 298-299, and n. 8, must be evaluated in terms of their general effect. Nor are such regulations invalid simply because there is some imaginable alternative that might be less burdensome on speech. Id., at 299. Instead, an incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Cf. 468 U.S., at 297 ("if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment"). The validity of such regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests. Id., at 299.We are persuaded that exclusion of holders of bar letters during military open houses will promote an important Government interest in assuring the security of military installations. Nothing in the First Amendment requires military commanders to wait until persons subject to a valid bar order have entered a military base to see if they will conduct themselves properly during an open house. Cf. Perry Ed. Assn. v. Perry Local Educators' Assn., , and n. 12 (1983). In Community for Creative Non-Violence, we observed that O'Brien does not "assign to the judiciary the authority to replace the Park Service as the manager of the Nation's parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained." 468 U.S., at 299 (footnote omitted). We are even less disposed to conclude that O'Brien assigns to the judiciary the authority to manage military facilities throughout the Nation.As a final First Amendment challenge to his conviction, respondent asserts that the Government apprehended and prosecuted him because it opposed the demonstration against nuclear war. This argument lacks evidentiary support. The demonstration did attract the attention of military officials to respondent and his companions, and the base Commander ordered military police to stop them from displaying their banner and distributing leaflets. Nonetheless, Major Jones testified that respondent was not approached or apprehended until he was identified as the possible holder of a bar letter. App. 9-11, 13-14. The trial judge found that this testimony was accurate, Tr. 98, and we see no reason to disturb that finding on appeal. Inasmuch as respondent contends that his prosecution was impermissibly motivated, he did not raise below and the record does not support a claim that he was selectively prosecuted for engaging in activities protected by the First Amendment. Cf. Wayte v. United States, .IVBefore the District Court and the Court of Appeals, respondent argued that his prosecution based on the 1972 bar letter violated due process. Respondent has made similar arguments to this Court. Brief for Respondent 19, 20, 26-27, n. 38. Although a commanding officer has broad discretion to exclude civilians from a military base, this power cannot be exercised in a manner that is patently arbitrary or discriminatory. Cafeteria Workers v. McElroy, 367 U.S., at 898. Respondent, however, has not shown that the 1972 bar letter is inconsistent with any statutory or regulatory limits on the power of military officials to exclude civilians from military bases. Nor do we think that it is inherently unreasonable for a commanding officer to issue a bar order of indefinite duration requiring a civilian to obtain written permission before reentering a military base. The Court of Appeals did not address whether, on the facts of this case, application of the 1972 bar letter to respondent was so patently arbitrary as to violate due process, and we therefore do not decide that issue. For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.In 1909 Congress enacted a new statute making it a federal crime to trespass on military bases in specified circumstances. That statute, now codified as 18 U.S.C. 1382, provided: "Whoever shall go upon any military reservation, army post, fort, or arsenal, for any purpose prohibited by law or military regulation made in pursuance of law, or whoever shall reenter or be found within any such reservation, post, fort, or arsenal, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both." 35 Stat. 1097. In my opinion, Congress did not intend to punish a visit to a military reservation under the second clause of this statute when circumstances reasonably indicated that the visit was not prohibited but welcome.In this case, respondent was "removed as a trespasser from Hickam Air Force Base," on March 2, 1972, and "ordered not to reenter."1 The removal and order not to return apparently were the result of respondent's destruction of Government property valued under $100 during a demonstration against the war in Vietnam.2 Over nine years later, respondent was "found within ... such reservation." Among 50,000 other civilians, he had accepted a widely advertised invitation to the public to attend the 32nd Annual Armed Forces Day Open House hosted by Hickam Air Force Base on May 16, 1981. A news release, issued by the Base, stated:"HICKAM HOSTS JOINT SERVICE OPEN HOUSE "Hickam Air Force Base, Hawaii (April 16, 1981) - The 32nd Annual Armed Forces Day Open House will be held here Saturday May 16 from 9 a. m. to 4 p. m. The theme this year is the `U.S. Armed Forces - Strong and Ready.' "Top local, country and western, and military entertainment - provided by the Royal Hawaiian Band, the Aloha Airlines Musical/Hula Troupe, J. T. and the Rowdy Band, Dave West and the Chaingang, Chris Cassidy and the Rainbow Connection, the Skylarks and the Fleet Marine Force Pacific Band - will perform during the open house. "More than 30 aircraft from the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, Hawaii Army and Air National Guard, Civil Air Patrol and the Wheeler Aero Club will be on display throughout the day. "Parachute jumps by the Navy and the Marine Corps, Marine troops, rappelling from helicopters, aircraft flyovers by the Hawaii Air National Guard, Air Force and the Navy are also scheduled. "Additionally, a crash/rescue demonstration by the Hickam Fire Department, a helicopter rescue demonstration by the Coast Guard and several police dog demonstrations by the Hickam Security Police will be conducted that day. "Also open that day is the annual Air Force Hawaii Youth Festival. Carnival rides, games and a midway packed with food and drinks will be the main attractions. Air Force nominees, representing the various commands at Hickam will complete for the crown of Youth Festival Queen. The crowning ceremony will take place Friday evening at 6 p. m. "Hickam, normally a closed base, will be open to the public for the Armed Forces Day Open House." App. 46-47. Radio advertisements extended a similar invitation to the public to attend the open house. Id., at 48.In my opinion, respondent's visit to the open house in this case in response to a general invitation to the public extended nine years after he was removed from the base and ordered not to reenter does not involve the kind of reentry that Congress intended to prohibit when it enacted the 1909 statute. In reaching a contrary conclusion, the Court relies heavily on the ordinary meaning of the statutory language, the fact that respondent had committed a misdemeanor on the base in 1972, and the fact that respondent's removal in 1972 was evidenced by a "bar letter." The "plain language" argument proves too much, and the evidentiary arguments prove too little.IIn Cafeteria Workers v. McElroy, , this Court recognized "the historically unquestioned power of a commanding officer summarily to exclude civilians from the area of his command." Id., at 893. In exercising this power, a base commander is only limited by the Constitution and by the standard administrative requirement that "he must not act in an arbitrary or capricious manner. His action must be reasonable in relation to his responsibility to protect and preserve order on the installation and to safeguard persons and property thereon."3 Even with these limitations, civilians may be removed from military bases for a wide variety of reasons such as reconnoitering military fortifications or troop movements, carrying a concealed weapon or a controlled substance, destroying Government property, creating a disturbance, violating a traffic regulation, attempting to induce a soldier to visit a saloon or to engage in an immoral act, wandering into an area where a training exercise is in progress, or perhaps even "chewing gum in the wrong place." See n. 2, supra.4 Congress enacted 1382 as a supplement to the military's power to exclude unwelcome civilians from military installations. The Senate and House Committee Reports on the bill explain the reasons for enacting 1382:"It is ... designed to punish persons who, having been ejected from a fort, reservation, etc., return for the purpose of obtaining information respecting the strength, etc., of the fort, etc., or for the purpose of inducing the men to visit saloons, dives, and similar places. Such persons may now go upon forts and reservations repeatedly for such purposes and there is no law to punish them." S. Rep. No. 10, 60th Cong., 1st Sess., 16 (1908); H. R. Rep. No. 2, 60th Cong., 1st Sess., 16 (1908).5 Section 1382 provides for criminal punishment, in addition to administrative ejectment, for a limited class of unwelcome visitors to military installations. The power to initiate criminal proceedings under 1382 is narrower than the base commander's broad power to exclude civilians from his facility. By its terms, the first clause of the statute only applies to persons who seek entry to a military installation for the purpose of committing unlawful acts. The second applies to any person who reenters the facility after physical removal or an order not to reenter. The limited criminal liability provided by Congress in 1382 evinces a design to protect innocent or inadvertent entries onto military lands from becoming a criminal trespass.6 The two clauses of 1382 were originally enacted as a single sentence; if they are read together, a plausible construction becomes apparent. The statute was aimed at trespassers - civilians whom the military had the power to exclude but not to punish. The first clause authorized the punishment of a trespasser if it could be proved that he had entered "for any purpose prohibited by law or [lawful] military regulation"; the second clause made it unnecessary to prove any unlawful purpose if the trespasser "reenter[s]" after having been removed. In many circumstances, of course, a second trespass in defiance of removal or an order not to reenter may safely be presumed to be motivated by an unlawful purpose - especially when the reentry closely follows the exclusion from the base, and its circumstances are similar.When circumstances reasonably indicate to an individual that a visit to the base is permitted or even welcome, there is no "reentry" in defiance of authority as the statute here presumes. Base authorities, of course, have ample power to exclude such individuals. But criminal prosecution of a person entering under these circumstances is fundamentally inconsistent with Congress' intent to excuse innocent and inadvertent intrusions onto military reservations. No rule of construction requires that we attribute to Congress an intent which is at odds with its own design and which results "in patently absurd consequences." United States v. Brown, . In fact, this Court, "in keeping with the common-law tradition and with the general injunction that `ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,' Rewis v. United States, , has on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide." United States v. United States Gypsum Co., .IIAdopting a starkly literal interpretation of the second clause of 1382, the Court concludes that Congress intended to impose strict liability every time an individual is "found within" a military reservation after having been "removed therefrom or ordered not to reenter." Under this construction, the circumstances of neither the removal nor the reentry are relevant to the criminal offense. Emphasizing the absence of any reference to the defendant's state of mind in the second clause, the Court rejects what it considers to be the "remarkable proposition" that a civilian removed from a base or ordered not to reenter may ever reasonably believe that he could safely return to the base. Ante, at 683. The Court's literal approach to the question of statutory construction, if applied with the frozen logic the Court purports to espouse, expands the coverage of the Act far beyond anything that Congress actually could have intended.There are many situations in which the circumstances of the removal or order not to reenter simply do not suggest to the reasonable citizen that a later reentry is barred. Under the Court's interpretation of the statute, a person who was removed from Hickam in 1972 because he was intoxicated, is guilty of a federal offense if he returns to attend an open house nine years later. Even worse, it is not inconceivable that at the 4 p. m. curfew hour many persons may not yet have departed the Hickam open house. If the base commander, or someone acting under his authority, terminated the party with an address over the loudspeaker system which ended with an unambiguous order to depart within the next 30 minutes, hundreds - perhaps thousands - of civilians would have "been removed therefrom" within the literal meaning of 1382. If the statutory language is interpreted literally, every one of these civilians would act at his peril if he accepted an invitation to the open house in the following year.7 Moreover, highways or other public easements often bisect military reservations. Cf. Flower v. United States, . Respondent has informed us that a substantial portion of the main runway at Honolulu International Airport lies inside the boundaries of Hickam Air Force Base. Brief for Respondent 8. If an individual who has been removed from Hickam is liable under 1382 whenever he is thereafter "found within" its boundaries, he risks criminal punishment every time he departs on an airline flight that may use the runway traversing the base. The use of these military lands for the limited public purposes for which they have been set aside does not involve the bold defiance of authority that is foreseen by the structure of the statute and reflected in its legislative history. Surely Congress did not intend to impose criminal liability for the use of a civilian airport - even for persons who have been previously "removed" from a military base by administrative action, or ordered not to reenter.The Court prefers to rely on the Due Process Clause to limit the oppressive and absurd consequences of its literal construction. It seems wiser to presume that "the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter." United States v. Kirby, 7 Wall. 482, 486-487 (1869). At some point, common sense must temper the excesses of statutory literalism.IIIThe Court repeatedly emphasizes that respondent received a "bar letter" ordering him not to reenter the base. The statute, however, contains no requirement that the removal of a trespasser be documented in any way or that an order not to reenter be in writing. In 1909 Congress was concerned with trespassers who refused to obey verbal orders to depart. See n. 5, supra. The practice of issuing written orders not to reenter apparently arose after the enactment of the statute in order to serve an evidentiary function.The bar letter is evidence of the fact that its recipient has been removed from the base and ordered not to reenter. It is issued when prosecution for subsequent reentry is contemplated,8 but nothing in the statute gives such a letter any greater legal effect than a sentry's ejectment of a peddler or a panderer. As a matter of administration, the practice of issuing such bar letters is surely commendable, but it cannot, in my judgment, expand the coverage of the statute in the slightest.The Court also seems to attach significance to the fact that the bar letter delivered to respondent in 1972 had been precipitated by an unlawful act. I agree, of course, that Congress could not have intended the statute to apply to a reentry following an invalid order of removal - even if the literal wording of the Act draws no such distinction. But a verbal order to depart simply because the curfew hour has been reached has the same legal effect as an order to depart because a crime has been committed. In either event, a reentry will violate 1382.In this case, the evidentiary significance of the 1972 removal and order not to reenter is significantly attenuated by the passage of nearly a decade from the date of the event. Every area of our laws recognizes that at some point, "even wrongdoers are entitled to assume that their sins may be forgotten." Wilson v. Garcia, . By limiting the effect of orders not to reenter to a period of one or two years, App. 60-62, recent military practice has recognized that the character of an individual may change dramatically over time. Cf. Fed. Rule Evid. 609(b). Indeed, until this case no reported prosecution under 1382 relied on a removal or order not to reenter of greater vintage.9 A decade-old bar letter might provide a basis for excluding the recipient from a base under appropriate circumstances. It does not, however, provide persuasive evidence that a reasonable person would believe that its proscriptive effect continued in perpetuity to pre-empt the effect of a public invitation to attend an open house at the base.10 This is especially so when the original order was issued for a relatively minor transgression completely unrelated to the circumstances of the later intrusion.The refrain in the Court's opinion concerning bar letters that the respondent may have received from other military bases in Hawaii is baffling considering its holding that the reasonableness of the later intrusion is irrelevant. The Court's reliance on these bar letters is especially puzzling since they are not contained in the record and may well have been invalid.11 In any case, the fact that respondent's opposition to military preparedness may have caused other base commanders to deliver bar letters to him is quite irrelevant to the question whether circumstances reasonably indicated to him that his attendance at the Hickam open house was prohibited. At most, these unrelated incidents might have supported the removal of respondent from Hickam if he sought to enter, or perhaps the issuance of a fresh order barring reentry there.12 The Court seems to regard "the effective lifetime of a bar order" as the critical issue. It concedes that the Constitution or military regulation may constrain a commanding officer's power to exclude a civilian from a military installation, and correctly observes that 1382 does not place any limit on that power. Ante, at 682. What the Court overlooks is the distinction between the commander's power to exclude - which is very broad indeed - and the sovereign's power to punish which may not extend one inch beyond the authority conferred by Congress.13 In my opinion, Congress did not authorize the prosecution of a civilian who accepted a military base Commander's invitation to attend an open house on the base simply because the civilian had been "removed therefrom" and "ordered not to reenter" some nine years earlier.I respectfully dissent. |
1 | Petitioner, while a naturalized citizen, was convicted of two separate offenses involving moral turpitude. Following his subsequent denaturalization on the ground that his citizenship had been acquired by willful misrepresentation, proceedings were brought against him under 241 (a) (4) of the Immigration and Nationality Act of 1952, which provides for deportation of an alien who at any time after entry "is convicted" of two crimes involving moral turpitude. He was found deportable and the Court of Appeals dismissed his petition for review. Held: 1. The two convictions relied upon to support deportation both occurred at a time when petitioner was a naturalized citizen and he was therefore not deportable, the statute permitting only deportation of one who was an alien at the time of his convictions. Eichenlaub v. Shaughnessy, , distinguished. Pp. 121-128. 2. The provision in 340 (a) of the Act that a denaturalization order shall be effective as of the original date of naturalization is inapplicable to the general deportation provisions of the Act. Petitioner could not, therefore, under the "relation-back" theory of that provision be deemed to have been an alien at the time of his convictions. Pp. 128-132. 311 F.2d 343, reversed.Edward Bennett Williams argued the cause for petitioner. With him on the briefs was Harold Ungar.Wayne G. Barnett argued the cause for respondent. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Stephen J. Pollak and Beatrice Rosenberg. MR. JUSTICE STEWART delivered the opinion of the Court.Section 241 (a) (4) of the Immigration and Nationality Act of 1952 provides that "Any alien in the United States ... shall, upon the order of the Attorney General, be deported who ... at any time after entry is convicted of two crimes involving moral turpitude ... ."1 The single question to be decided in the present case is whether this provision applies to a person who was a naturalized citizen at the time he was convicted of the crimes, but was later denaturalized.The petitioner, born in Italy in 1891, was brought to the United States when he was four years old and has lived here ever since. He became a naturalized citizen in 1925. In 1954 he was convicted of two separate offenses of income tax evasion, and the convictions were ultimately affirmed by this Court. Costello v. United States, . In 1959 his citizenship was revoked and his certificate of naturalization canceled on the ground that his citizenship had been acquired by willful misrepresentation. This Court affirmed the judgment of denaturalization. Costello v. United States, .In 1961 the Immigration and Naturalization Service commenced proceedings to deport the petitioner under 241 (a) (4), and it is those proceedings which have culminated in the case now before us. The Special Inquiry Officer found the petitioner deportable; the Board of Immigration Appeals affirmed; and the Court of Appeals dismissed the petition for review, holding that the petitioner was subject to deportation under 241 (a) (4) even though the two convictions relied upon to support deportation both occurred at a time when he was a naturalized citizen. 311 F.2d 343. We granted certiorari to consider an important question of federal law.2 For the reasons which follow, we reverse the judgment of the Court of Appeals.At a semantic level, the controversy centers around the use of the present tense "is" in the clause "[[a]ny alien] who at any time after entry is convicted ... ." The petitioner argues that this language permits deportation only of one who was an alien at the time of his convictions. The Court of Appeals totally rejected such a contention, holding that this statutory language, considered along with the phrase "at any time after entry" and with the broad legislative history, clearly permits deportation of a person now an alien who was convicted of the two crimes in question while he was a naturalized citizen. "There is no ambiguity," the court wrote, and "no room for interpretation or construction." 311 F.2d. at 345. The court found additional support for its conclusion in Eichenlaub v. Shaughnessy, , a case which held that under a 1920 deportation law aliens who had been convicted of specified offenses were deportable even though the convictions had occurred at a time when the aliens held certificates of naturalization. We take a different view. The statute construed in Eichenlaub differs from 241 (a) (4) in several important respects. The law there involved was the Act of May 10, 1920, which provided that "All aliens who since August 1, 1914, have been or may hereafter be convicted" of violations of the Espionage Act of 1917, as amended, were to be deported, provided the Secretary of Labor after a hearing found them to be undesirable residents of the United States.3 The Court read this language as unambiguously authorizing deportation, regardless of the aliens' status at the time they were convicted. It is evident from what was said in the opinion that the Court was aided considerably in its search for the proper construction of the statute by Congress' use of the past tense in the phrase "have been or may hereafter be," and the fact that the only limitation which Congress placed upon the time of conviction was that it be "since August 1, 1914."4 The Court also found specific legislative history to support its conclusion. As the Congressional Committee Reports demonstrated, the 1920 law was a special statute dealing with sabotage and espionage, originally enacted in order to deport "some or all of about 500 aliens who were then interned as dangerous enemy aliens and who might be found, after hearings, to be undesirable residents, and also to deport some or all of about 150 other aliens who, during World War I, had been convicted of violations of the Espionage Act or other national security measures, and who might be found, after hearings, to be undesirable residents." 338 U.S., at 532. The Court therefore concluded that Congress, when it enacted the statute, had expressed a clear intent to group together denaturalized citizens along with aliens who had never acquired citizenship and to deport them for specific crimes involving national security occurring after a specific date at the beginning of World War I.Neither the language nor the history of 241 (a) (4) lends itself so easily to a similar construction. The subsection employs neither a past tense verb nor a single specific time limitation. The petitioner's construction - that the language permits deportation only of a person who was an alien at the time of his convictions, and the Court of Appeals' construction - that the language permits deportation of a person now an alien who at any time after entry has been convicted of two crimes, regardless of his status at the time of the convictions - are both possible readings of the statute, as the respondent has conceded in brief and oral argument. We agree with the Court of Appeals that the tense of the verb "be" is not, considered alone, dispositive.5 On the other hand, we disagree with that court's reliance on the phrase "at any time after entry" in 241 (a) (4) to support the conclusion that an alien is deportable for post-entry conduct whether or not he was an alien at the time of conviction. Since 212 (a) (9)6 provides for the exclusion of aliens convicted of crimes of moral turpitude, and any excludable alien who nevertheless enters the country is deportable under 241 (a) (1),7 it seems just as logical to conclude that the purpose of the phrase "at any time after entry" in 241 (a) (4) was simply to make clear that 241 (a) (4) authorizes the deportation of aliens who were not originally excludable, but were convicted after entry.There is nothing in the legislative history of 241 (a) (4) of so specific a nature as to resolve the ambiguity of the statutory language. The general legislative purpose underlying enactment of 241 (a) (4) was to broaden the provisions governing deportation, "particularly those referring to criminal and subversive aliens."8 But reference to such a generalized purpose does little to promote resolution of the specific problem before us, of which there was absolutely no mention in the Committee Reports or other legislative materials concerning 241 (a) (4).9 Although no legislative history illumines our problem, considerable light is forthcoming from another provision of the statute itself. Section 241 (b) (2), made specifically applicable to 241 (a) (4), provides that deportation shall not take place "if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation ... that such alien not be deported."10 As another court has correctly observed, "It seems plain that the qualifying provisions of subsection (b) are an important part of the legislative scheme expressed in subsection (a) (4). While that section makes a conviction there referred to ground for deportation, it is qualified in an important manner by the provision of subsection (b) (2) that if the court sentencing the alien makes the recommendation mentioned, then the provisions of subsection (a) (4) do not apply." Gubbels v. Hoy, 261 F.2d 952, 954.11 Yet if 241 (a) (4) were construed to apply to those convicted when they were naturalized citizens, the protective provisions of 241 (b) (2) would, as to them, become a dead letter. A naturalized citizen would not "at the time of first imposing judgment or passing sentence," or presumably "within thirty days thereafter," be an "alien" who could seek to invoke the protections of this section of the law. Until denaturalized, he would still be a citizen for all purposes, and a sentencing court would lack jurisdiction to make the recommendation provided by 241 (b) (2).12 We would hesitate long before adopting a construction of 241 (a) (4) which would, with respect to an entire class of aliens, completely nullify a procedure so intrinsic a part of the legislative scheme.13 If, however, despite the impact of 241 (b) (2), it should still be thought that the language of 241 (a) (4) itself and the absence of legislative history continued to leave the matter in some doubt, we would nonetheless be constrained by accepted principles of statutory construction in this area of the law to resolve that doubt in favor of the petitioner. As the Court has emphasized, "deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, . It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used." Fong Haw Tan v. Phelan, .Adoption of the petitioner's construction of 241 (a) (4) does not end our inquiry, however, for the respondent urges affirmance of the finding of deportability on an alternative ground, not reached by the Court of Appeals. The argument is that the petitioner is deportable because 340 (a) of the Immigration and Nationality Act of 1952, under which the petitioner's citizenship was canceled, provides that an order of denaturalization "shall be effective as of the original date" of the naturalization order.14 Under this so-called "relation-back" theory, it is said that cancellation of the petitioner's certificate of naturalization was "effective" as of 1925, the year of his original naturalization, that he was therefore an alien as a matter of law at the time of his convictions in 1954, and that he is accordingly deportable under 241 (a) (4) even if that provision requires alienage at the time of the convictions.We reject this theory for much the same reasons which have prompted our construction of 241 (a) (4). There is nothing in the language of 340 (a), and not a single indication in the copious legislative history of the 1952 Act, to suggest that Congress intended the relation-back language of 340 (a) to apply to the general deportation provisions of the Act. In view of the complete absence of any indication to the contrary, it would appear that in adopting the relation-back language of 340 (a) Congress intended to do no more than to codify existing case law. Several cases before 1952 had held that an order of denaturalization made the original naturalization a nullity, Johannessen v. United States, , and that, for the purpose of determining rights of derivative citizenship, denaturalization related back to the date of naturalization. Battaglino v. Marshall, 172 F.2d 979, 981; Rosenberg v. United States, 60 F.2d 475.The Second Circuit was alone among the federal courts in thinking that this nunc pro tunc concept which had been judicially developed in the denaturalization cases could properly be related to the task of construing a deportation statute. Eichenlaub v. Watkins, 167 F.2d 659; Willumeit v. Watkins, 171 F.2d 773. And when those cases came here, this Court pointedly declined to adopt the Second Circuit's reasoning. Eichenlaub v. Shaughnessy, .15 Following this Court's decision in Eichenlaub, the Sixth Circuit expressly refused to apply to a general deportation statute the relation-back principle of the denaturalization cases, in determining when there had been an "entry" for purposes of the predecessor of 241 (a) (4) in the 1917 Act. Brancato v. Lehmann, 239 F.2d 663.16 The relation-back concept is a legal fiction at best, and even the respondent concedes that it cannot be "mechanically applied." With respect to denaturalization itself, Congress clearly adopted the concept in enacting 340 (a). But in the absence of specific legislative history to the contrary, we are unwilling to attribute to Congress a purpose to extend this fiction to the deportation provisions of 241 (a) (4). This Court declined to apply the fiction in a deportation context in the Eichenlaub case, and we decline to do so now.The argument is made that it is anomalous to hold that a person found to have procured his naturalization by willful misrepresentation is not subject to deportation. although he would be deportable if he had never been naturalized at all. But it is not at all certain that this petitioner would be deportable today if he had never acquired naturalized citizenship. The petitioner points out that if he had held alienage status at the time of his trial for income tax evasion, he could have offered to plead guilty to one count of the indictment in return for a nolle prosequi of the other counts, and that conviction on but one count would not have made him subject to deportation under 241 (a) (4). Even more important, had petitioner been an alien at the time of his convictions, he could have availed himself of the supplementary relief procedure provided for in 241 (b) (2). In other words, to hold that under the relation-back language of 340 (a) the petitioner was an "alien" at the time of his convictions would go much further than merely preventing him from benefiting from his invalid naturalization; it would put him in a much more disadvantageous position than he would have occupied if he had never acquired a naturalization certificate at all.Moreover, if the relation-back doctrine were applicable in this case, it would be applicable as well, as the respondent's counsel conceded in oral argument, in the case of one whose original naturalization was not fraudulent, but simply legally invalid upon some technical ground.17 In this area of the law, involving as it may the equivalent of banishment or exile, we do well to eschew technicalities and fictions and to deal instead with realities. The reality is that the petitioner's convictions occurred when he was a naturalized citizen, as he had been for almost 30 years.If Congress had wanted the relation-back doctrine of 340 (a) to apply to the deportation provisions of 241 (a) (4), and thus to render nugatory and meaningless for an entire class of aliens the protections of 241 (b) (2), Congress could easily have said so. But there is no evidence whatever that the question was even considered. If and when Congress gives thought to the matter, it might well draw distinctions based upon the ground for denaturalization, the nature of the criminal convictions, and the time interval between naturalization and conviction, or between conviction and denaturalization.18 But such differentiations are not for this Court to make. Reversed.MR. JUSTICE HARLAN took no part in the consideration or decision of this case. |
1 | Under Title VII, an employer's liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "supervisor," however, different rules apply. If the supervisor's harassment culminates in a tangible employment action (i.e., "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," Burlington Industries, Inc. v. Ellerth), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765. Petitioner Vance, an African-American woman, sued her employer, Ball State University (BSU) alleging that a fellow employee, Saundra Davis, created a racially hostile work environment in violation of Title VII. The District Court granted summary judgment to BSU. It held that BSU was not vicariously liable for Davis' alleged actions because Davis, who could not take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed. Held: An employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. Pp. 9-30. (a) Petitioner errs in relying on the meaning of "supervisor" in general usage and in other legal contexts because the term has varying meanings both in colloquial usage and in the law. In any event, Congress did not use the term "supervisor" in Title VII, and the way to understand the term's meaning for present purposes is to consider the interpretation that best fits within the highly structured framework adopted in Faragher and Ellerth. Pp. 10-14. (b) Petitioner misreads Faragher and Ellerth in claiming that those cases support an expansive definition of "supervisor" because, in her view, at least some of the alleged harassers in those cases, whom the Court treated as supervisors, lacked the authority that the Seventh Circuit's definition demands. In Ellerth, there was no question that the alleged harasser, who hired and promoted his victim, was a supervisor. And in Faragher, the parties never disputed the characterization of the alleged harassers as supervisors, so the question simply was not before the Court. Pp. 14-18. (c) The answer to the question presented in this case is implicit in the characteristics of the framework that the Court adopted in Ellerth and Faragher, which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor. Ellerth, supra, at 762. The interpretation of the concept of a supervisor adopted today is one that can be readily applied. An alleged harasser's supervisor status will often be capable of being discerned before (or soon after) litigation commences and is likely to be resolved as a matter of law before trial. By contrast, the vagueness of the EEOC's standard would impede the resolution of the issue before trial, possibly requiring the jury to be instructed on two very different paths of analysis, depending on whether it finds the alleged harasser to be a supervisor or merely a co-worker. This approach will not leave employees unprotected against harassment by co-workers who possess some authority to assign daily tasks. In such cases, a victim can prevail simply by showing that the employer was negligent in permitting the harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence. Pp. 18-25. (d) The definition adopted today accounts for the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments. Petitioner fears that employers will attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions, but a broad definition of "supervisor" is not necessary to guard against that concern. Pp. 25-26.646 F. 3d 461, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.Opinion of the Court 570 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 11-556MAETTA VANCE, PETITIONER v. BALL STATEUNIVERSITYon writ of certiorari to the united states court of appeals for the seventh circuit[June 24, 2013] Justice Alito delivered the opinion of the Court. In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, and Far- agher v. Boca Raton, 524 U. S. 775 (1998), namely, who qualifies as a "supervisor" in a case in which an employee asserts a Title VII claim for workplace harassment? Under Title VII, an employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "supervisor," however, different rules apply. If the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Id., at 807; Ellerth, supra, at 765. Under this framework, therefore, it matters whether a harasser is a "supervisor" or simply a co-worker. We hold that an employee is a "supervisor" for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, and we therefore affirm the judgment of the Seventh Circuit.I Maetta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a substitute server in the University Banquet and Catering division of Dining Services. In 1991, BSU promoted Vance to a part-time catering assistant position, and in 2007 she applied and was selected for a position as a full-time catering assistant. Over the course of her employment with BSU, Vance lodged numerous complaints of racial discrimination and retaliation, but most of those incidents are not at issue here. For present purposes, the only relevant incidents concern Vance's interactions with a fellow BSU employee, Saundra Davis. During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis' duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. See No. 1:06-cv-1452-SEB-JMS, 2008 WL 4247836, *12 (SD Ind., Sept. 10, 2008) ("Vance makes no allegations that Ms. Davis possessed any such power"); Brief for Petitioner 9-11 (describing Davis' authority over Vance); Brief for Respondent 39 ("[A]ll agree that Davis lacked the authority to take tangible employments [sic] actions against petitioner"). In late 2005 and early 2006, Vance filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination, and many of these complaints and charges pertained to Davis. 646 F. 3d 461, 467 (CA7 2011). Vance complained that Davis "gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her." Ibid. She alleged that she was "left alone in the kitchen with Davis, who smiled at her"; that Davis "blocked" her on an elevator and "stood there with her cart smiling"; and that Davis often gave her "weird" looks. Ibid. (internal quotation marks omitted). Vance's workplace strife persisted despite BSU's attempts to address the problem. As a result, Vance filed this lawsuit in 2006 in the United States District Court for the Southern District of Indiana, claiming, among other things, that she had been subjected to a racially hostile work environment in violation of Title VII. In her complaint, she alleged that Davis was her supervisor and that BSU was liable for Davis' creation of a racially hostile work environment. Complaint in No. 1:06-cv-01452-SEB-TAB (SD Ind., Oct. 3, 2006), Dkt. No. 1, pp. 5-6. Both parties moved for summary judgment, and the District Court entered summary judgment in favor of BSU. 2008 WL 4247836, at *1. The court explained that BSU could not be held vicariously liable for Davis' alleged racial harassment because Davis could not " 'hire, fire, demote, promote, transfer, or discipline' " Vance and, as a result, was not Vance's supervisor under the Seventh Circuit's interpretation of that concept. See id., at *12 (quoting Hall v. Bodine Elect. Co., 276 F. 3d 345, 355 (CA7 2002)). The court further held that BSU could not be liable in negligence because it responded reasonably to the incidents of which it was aware. 2008 WL 4247836, *15. The Seventh Circuit affirmed. 646 F. 3d 461. It explained that, under its settled precedent, supervisor status requires " 'the power to hire, fire, demote, promote, transfer, or discipline an employee.' " Id., at 470 (quoting Hall, supra, at 355). The court concluded that Davis was not Vance's supervisor and thus that Vance could not recover from BSU unless she could prove negligence. Finding that BSU was not negligent with respect to Davis' conduct, the court affirmed. 646 F. 3d, at 470-473.IIA Title VII of the Civil Rights Act of 1964 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). This provision obviously prohibits discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion, and pay cuts. But not long after Title VII was enacted, the lower courts held that Title VII also reaches the creation or perpetuation of a discriminatory work environment. In the leading case of Rogers v. EEOC, 454 F. 2d 234 (1971), the Fifth Circuit recognized a cause of action based on this theory. See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 65-66 (1986) (describing development of hostile environment claims based on race). The Rogers court reasoned that "the phrase 'terms, conditions, or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination." 454 F. 2d, at 238. The court observed that "[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers." Ibid. Following this decision, the lower courts generally held that an employer was liable for a racially hostile work environment if the employer was negligent, i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. See Ellerth, 524 U. S., at 768-769 (Thomas, J., dissenting) (citing cases). When the issue eventually reached this Court, we agreed that Title VII prohibits the creation of a hostile work environment. See Meritor, supra, at 64-67. In such cases, we have held, the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered. See, e.g., Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993).B Consistent with Rogers, we have held that an employer is directly liable for an employee's unlawful harassment if the employer was negligent with respect to the offensive behavior. Faragher, 524 U. S., at 789. Courts have generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff.1 In Ellerth and Faragher, however, we held that different rules apply where the harassing employee is the plaintiff's "supervisor." In those instances, an employer may be vicariously liable for its employees' creation of a hostile work environment. And in identifying the situations in which such vicarious liability is appropriate, we looked to the Restatement of Agency for guidance. See, e.g., Meri- tor, supra, at 72; Ellerth, supra, at 755. Under the Restatement, "masters" are generally not liable for the torts of their "servants" when the torts are committed outside the scope of the servants' employment. See 1 Restatement (Second) of Agency §219(2), p. 481 (1957) (Restatement). And because racial and sexual harassment are unlikely to fall within the scope of a servant's duties, application of this rule would generally preclude employer liability for employee harassment. See Faragher, supra, at 793-796; Ellerth, supra, at 757. But in Ellerth and Faragher, we held that a provision of the Restatement provided the basis for an exception. Section 219(2)(d) of that Restatement recognizes an exception to the general rule just noted for situations in which the servant was "aided in accomplishing the tort by the existence of the agency relation."2 Restatement 481; see Far- agher, supra, at 802-803; Ellerth, supra, at 760-763. Adapting this concept to the Title VII context, Ellerth and Faragher identified two situations in which the aided-in-the-accomplishment rule warrants employer liability even in the absence of negligence, and both of these situations involve harassment by a "supervisor" as opposed to a co-worker. First, the Court held that an employer is vicariously liable "when a supervisor takes a tangible employment action," Ellerth, supra, at 762; Faragher, supra, at 790 — i.e., "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U. S., at 761. We explained the reason for this rule as follows: "When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. . . . A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors." Id., at 761-762. In those circumstances, we said, it is appropriate to hold the employer strictly liable. See Faragher, supra, at 807; Ellerth, supra, at 765. Second, Ellerth and Faragher held that, even when a supervisor's harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor's creation of a hostile work environment if the employer is unable to establish an affirmative defense.3 We began by noting that "a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation." El- lerth, supra, at 763; see Faragher, 524 U. S., at 803-805. But it would go too far, we found, to make employers strictly liable whenever a "supervisor" engages in harassment that does not result in a tangible employment action, and we therefore held that in such cases the employer may raise an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. Faragher, supra, at 807; Ellerth, 524 U. S., at 765. This compromise, we explained, "accommodate[s] the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees." Id., at 764. The dissenting Members of the Court in Ellerth and Faragher would not have created a special rule for cases involving harassment by "supervisors." Instead, they would have held that an employer is liable for any employee's creation of a hostile work environment "if, and only if, the plaintiff proves that the employer was negligent in permitting the [offending] conduct to occur." Ellerth, supra, at 767 (Thomas, J., dissenting); Faragher, supra, at 810 (same).C Under Ellerth and Faragher, it is obviously important whether an alleged harasser is a "supervisor" or merely a co-worker, and the lower courts have disagreed about the meaning of the concept of a supervisor in this context. Some courts, including the Seventh Circuit below, have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. E.g., 646 F. 3d, at 470; Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004). Other courts have substantially followed the more open-ended approach advocated by the EEOC's Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another's daily work. See, e.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 126-127 (CA2 2003); Whitten v. Fred's, Inc., 601 F. 3d 231, 245-247 (CA4 2010); EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), 1999 WL 33305874, *3 (hereinafter EEOC Guidance). We granted certiorari to resolve this conflict. 567 U. S. ___ (2012).III We hold that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Ellerth, supra, at 761. We reject the nebulous definition of a "supervisor" advocated in the EEOC Guidance4 and substantially adopted by several courts of appeals. Petitioner's reliance on colloquial uses of the term "supervisor" is misplaced, and her contention that our cases require the EEOC's abstract definition is simply wrong. As we will explain, the framework set out in Ellerth and Faragher presupposes a clear distinction between supervisors and co-workers. Those decisions contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervisors: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker's labor to some ill-defined degree. On the contrary, the Ellerth/Faragher framework is one under which supervisory status can usually be readily determined, generally by written documentation. The approach recommended by the EEOC Guidance, by contrast, would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors. The Ellerth/Faragher framework represents what the Court saw as a workable compromise between the aided-in-the-accomplishment theory of vicarious liability and the legitimate interests of employers. The Seventh Circuit's understanding of the concept of a "supervisor," with which we agree, is easily workable; it can be applied without undue difficulty at both the summary judgment stage and at trial. The alternative, in many cases, would frustrate judges and confound jurors.A Petitioner contends that her expansive understanding of the concept of a "supervisor" is supported by the meaning of the word in general usage and in other legal contexts, see Brief for Petitioner 25-28, but this argument is both incorrect on its own terms and, in any event, misguided. In general usage, the term "supervisor" lacks a sufficiently specific meaning to be helpful for present purposes. Petitioner is certainly right that the term is often used to refer to a person who has the authority to direct another's work. See, e.g., 17 Oxford English Dictionary 245 (2d ed. 1989) (defining the term as applying to "one who inspects and directs the work of others"). But the term is also often closely tied to the authority to take what Ellerth and Faragher referred to as a "tangible employment action." See, e.g., Webster's Third New International Dictionary 2296, def. 1(a) (1976) ("a person having authority delegated by an employer to hire, transfer, suspend, recall, promote, assign, or discharge another employee or to recommend such action"). A comparison of the definitions provided by two colloquial business authorities illustrates the term's imprecision in general usage. One says that "[s]upervisors are usually authorized to recommend and/or effect hiring, disciplining, promoting, punishing, rewarding, and other associated activities regarding the employees in their departments."5 Another says exactly the opposite: "A supervisor generally does not have the power to hire or fire employees or to promote them."6 Compare Ellerth, 524 U. S., at 762 ("Tangible employment actions fall within the special province of the supervisor"). If we look beyond general usage to the meaning of the term in other legal contexts, we find much the same situation. Sometimes the term is reserved for those in the upper echelons of the management hierarchy. See, e.g., 25 U. S. C. §2021(18) (defining the "supervisor" of a school within the jurisdiction of the Bureau of Indian Affairs as "the individual in the position of ultimate authority at a Bureau school"). But sometimes the term is used to refer to lower ranking individuals. See, e.g., 29 U. S. C. §152(11) (defining a supervisor to include "any individual having authority . . . to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment"); 42 U. S. C. §1396n(j)(4)(A) (providing that an eligible Medicaid beneficiary who receives care through an approved self-directed services plan may "hire, fire, supervise, and manage the individuals providing such services"). Although the meaning of the concept of a supervisor varies from one legal context to another, the law often contemplates that the ability to supervise includes the ability to take tangible employment actions.7 See, e.g., 5 CFR §§9701.511(a)(2), (3) (2012) (referring to a supervisor's authority to "hire, assign, and direct employees . . . and [t]o lay off and retain employees, or to suspend, remove, reduce in grade, band, or pay, or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source"); §9701.212(b)(4) (defining "supervisory work" as that which "may involve hiring or selecting employees, assigning work, managing performance, recognizing and rewarding employees, and other associated duties"). In sum, the term "supervisor" has varying meanings both in colloquial usage and in the law. And for this reason, petitioner's argument, taken on its own terms, is unsuccessful. More important, petitioner is misguided in suggesting that we should approach the question presented here as if "supervisor" were a statutory term. "Supervisor" is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in Ellerth and Faragher as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term "supervisor" for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted.B In considering Ellerth and Faragher, we are met at the outset with petitioner's contention that at least some of the alleged harassers in those cases, whom we treated as supervisors, lacked the authority that the Seventh Circuit's definition demands. This argument misreads our decisions. In Ellerth, it was clear that the alleged harasser was a supervisor under any definition of the term: He hired his victim, and he promoted her (subject only to the ministerial approval of his supervisor, who merely signed the paperwork). 524 U. S., at 747. Ellerth was a case from the Seventh Circuit, and at the time of its decision in that case, that court had already adopted its current definition of a supervisor. See Volk v. Coler, 845 F. 2d 1422, 1436 (1988). See also Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033, n. 1 (CA7 1998) (discussing Circuit case law). Although the en banc Seventh Circuit in Ellerth issued eight separate opinions, there was no disagreement about the harasser's status as a supervisor. Jansen v. Packaging Corp. of America, 123 F. 3d 490 (1997) (per curiam). Likewise, when the case reached this Court, no question about the harasser's status was raised. The same is true with respect to Faragher. In that case, Faragher, a female lifeguard, sued her employer, the city of Boca Raton, for sexual harassment based on the conduct of two other lifeguards, Bill Terry and David Silverman, and we held that the city was vicariously liable for Terry's and Silverman's harassment. Although it is clear that Terry had authority to take tangible employment actions affecting the victim,8 see 524 U. S., at 781 (explaining that Terry could hire new lifeguards, supervise their work assignments, counsel, and discipline them), Silverman may have wielded less authority, ibid. (noting that Silverman was "responsible for making the lifeguards' daily assignments, and for supervising their work and fitness training"). Nevertheless, the city never disputed Faragher's characterization of both men as her "supervisors." See App., O. T. 1997, No. 97-282, p. 40 (First Amended Complaint ¶¶6-7); id., at 79 (Answer to First Amended Complaint ¶¶6-7) (admitting that both harassers had "supervisory responsibilities" over the plaintiff).9 In light of the parties' undisputed characterization of the alleged harassers, this Court simply was not presented with the question of the degree of authority that an employee must have in order to be classified as a supervisor.10 The parties did not focus on the issue in their briefs, although the victim in Faragher appears to have agreed that supervisors are employees empowered to take tangible employment actions. See Brief for Petitioner, O. T. 1997, No. 97-282, p. 24 ("Supervisors typically exercise broad discretionary powers over their subordinates, determining many of the terms and conditions of their employment, including their raises and prospects for promotion and controlling or greatly influencing whether they are to be dismissed"). For these reasons, we have no difficulty rejecting petitioner's argument that the question before us in the present case was effectively settled in her favor by our treatment of the alleged harassers in Ellerth and Faragher.11 The dissent acknowledges that our prior cases do "not squarely resolve whether an employee without power to take tangible employment actions may nonetheless qualify as a supervisor," but accuses us of ignoring the "all-too-plain reality" that employees with authority to control their subordinates' daily work are aided by that authority in perpetuating a discriminatory work environment. Post, at 8 (opinion of Ginsburg, J.). As Ellerth recognized, however, "most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation," and consequently "something more" is required in order to warrant vicarious liability. 524 U. S., at 760. The ability to direct another employee's tasks is simply not sufficient. Employees with such powers are certainly capable of creating intolerable work environments, see post, at 9-11 (discussing examples), but so are many other co-workers. Negligence provides the better framework for evaluating an employer's liability when a harassing employee lacks the power to take tangible employment actions.C Although our holdings in Faragher and Ellerth do not resolve the question now before us, we believe that the answer to that question is implicit in the characteristics of the framework that we adopted. To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim's terms or conditions of employment. The Ellerth/Faragher framework draws a sharp line between co-workers and supervisors. Co-workers, the Court noted, "can inflict psychological injuries" by creating a hostile work environment, but they "cannot dock another's pay, nor can one co-worker demote another." Ellerth, 524 U. S., at 762. Only a supervisor has the power to cause "direct economic harm" by taking a tangible employment action. Ibid. "Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. . . . Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates." Ibid. (emphasis added). The strong implication of this passage is that the authority to take tangible employment actions is the defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors. The way in which we framed the question presented in Ellerth supports this understanding. As noted, the Ellerth/Faragher framework sets out two circumstances in which an employer may be vicariously liable for a supervisor's harassment. The first situation (which results in strict liability) exists when a supervisor actually takes a tangible employment action based on, for example, a subordinate's refusal to accede to sexual demands. The second situation (which results in vicarious liability if the employer cannot make out the requisite affirmative defense) is present when no such tangible action is taken. Both Ellerth and Faragher fell into the second category, and in Ellerth, the Court couched the question at issue in the following terms: "whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat." 524 U. S., at 754. This statement plainly ties the second situation to a supervisor's authority to inflict direct economic injury. It is because a supervisor has that authority — and its potential use hangs as a threat over the victim — that vicarious liability (subject to the affirmative defense) is justified. Finally, the Ellerth/Faragher Court sought a framework that would be workable and would appropriately take into account the legitimate interests of employers and employees. The Court looked to principles of agency law for guidance, but the Court concluded that the "malleable terminology" of the aided-in-the-commission principle counseled against the wholesale incorporation of that principle into Title VII case law. Ellerth, 524 U. S., at 763. Instead, the Court also considered the objectives of Title VII, including "the limitation of employer liability in certain circumstances." Id., at 764. The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervisor, and in others, the alleged harasser's status will become clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment. By contrast, under the approach advocated by petitioner and the EEOC, supervisor status would very often be murky — as this case well illustrates.12 According to petitioner, the record shows that Davis, her alleged harasser, wielded enough authority to qualify as a supervisor. Petitioner points in particular to Davis' job description, which gave her leadership responsibilities, and to evidence that Davis at times led or directed Vance and other employees in the kitchen. See Brief for Petitioner 42-43 (citing record); Reply Brief 22-23 (same). The United States, on the other hand, while applying the same open-ended test for supervisory status, reaches the opposite conclusion. At least on the present record, the United States tells us, Davis fails to qualify as a supervisor. Her job description, in the Government's view, is not dispositive, and the Government adds that it would not be enough for petitioner to show that Davis "occasionally took the lead in the kitchen." Brief for United States as Amicus Curiae 31 (U. S. Brief). This disagreement is hardly surprising since the EEOC's definition of a supervisor, which both petitioner and the United States defend, is a study in ambiguity. In its Enforcement Guidance, the EEOC takes the position that an employee, in order to be classified as a supervisor, must wield authority " 'of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment.' " Id., at 27 (quoting App. to Pet. for Cert. 89a (EEOC Guidance)). But any authority over the work of another employee provides at least some assistance, see Ellerth, supra, at 763, and that is not what the United States interprets the Guidance to mean. Rather, it informs us, the authority must exceed both an ill-defined temporal requirement (it must be more than "occasiona[l]") and an ill-defined substantive requirement ("an employee who directs 'only a limited number of tasks or assignments' for another employee . . . would not have sufficient authority to qualify as a supervisor." U. S. Brief 28 (quoting App. to Pet. for Cert. 92a (EEOC Guidance));U. S. Brief 31. We read the EEOC Guidance as saying that the number (and perhaps the importance) of the tasks in question is a factor to be considered in determining whether an employee qualifies as a supervisor. And if this is a correct interpretation of the EEOC's position, what we are left with is a proposed standard of remarkable ambiguity. The vagueness of this standard was highlighted at oral argument when the attorney representing the United States was asked to apply that standard to the situation in Faragher, where the alleged harasser supposedly threatened to assign the plaintiff to clean the toilets in the lifeguard station for a year if she did not date him. 524 U. S., at 780. Since cleaning the toilets is just one task, albeit an unpleasant one, the authority to assign that job would not seem to meet the more-than-a-limited-number-of-tasks requirement in the EEOC Guidance. Nevertheless, the Government attorney's first response was that the authority to make this assignment would be enough. Tr. of Oral Arg. 23. He later qualified that answer by saying that it would be necessary to "know how much of the day's work [was] encompassed by cleaning the toilets." Id., at 23-24. He did not explain what percentage of the day's work (50%, 25%, 10%?) would suffice. The Government attorney's inability to provide a definitive answer to this question was the inevitable consequence of the vague standard that the Government asks us to adopt. Key components of that standard--"sufficient" authority, authority to assign more than a "limited number of tasks," and authority that is exercised more than "occasionally"--have no clear meaning. Applying these standards would present daunting problems for the lower federal courts and for juries. Under the definition of "supervisor" that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply. The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the framework that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser's authority to take tangible employment actions), this preliminary question is relatively straightforward. The alternative approach advocated by petitioner and the United States would make matters far more complicated and difficult. The complexity of the standard they favor would impede the resolution of the issue before trial. With the issue still open when trial commences, the parties would be compelled to present evidence and argument on supervisor status, the affirmative defense, and the question of negligence, and the jury would have to grapple with all those issues as well. In addition, it would often be necessary for the jury to be instructed about two very different paths of analysis, i.e., what to do if the alleged harasser was found to be a supervisor and what to do if the alleged harasser was found to be merely a co-worker. Courts and commentators alike have opined on the need for reasonably clear jury instructions in employment discrimination cases.13 And the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof.14 By simplifying the process of determining who is a supervisor (and by extension, which liability rules apply to a given set of facts), the approach that we take will help to ensure that juries return verdicts that reflect the application of the correct legal rules to the facts. Contrary to the dissent's suggestions, see post, at 14, 17, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. The nature and degree of authority possessed by harassing employees varies greatly, see post, 9-11 (offering examples), and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. This variety presents no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here.D The dissent argues that the definition of a supervisor that we now adopt is out of touch with the realities of the workplace, where individuals with the power to assign daily tasks are often regarded by other employees as supervisors. See post, at 5, 8-12. But in reality it is the alternative that is out of touch. Particularly in modern organizations that have abandoned a highly hierarchical management structure, it is common for employees to have overlapping authority with respect to the assignment of work tasks. Members of a team may each have the responsibility for taking the lead with respect to a particular aspect of the work and thus may have the responsibility to direct each other in that area of responsibility. Finally, petitioner argues that tying supervisor status to the authority to take tangible employment actions will encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions. But a broad definition of "supervisor" is not necessary to guard against this concern. As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Cf. Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498, 509 (CA7 2004) (Rovner, J., concurring in part and concurring in judgment) ("Although they did not have the power to take formal employment actions vis-à-vis [the victim], [the harassers] necessarily must have had substantial input into those decisions, as they would have been the people most familiar with her work — certainly more familiar with it than the off-site Department Administrative Services Manager"). Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth, 524 U. S., at 762. IV Importuning Congress, post, at 21-22, the dissent suggests that the standard we adopt today would cause the plaintiffs to lose in a handful of cases involving shocking allegations of harassment, see post, at 9-12. However, the dissent does not mention why the plaintiffs would lose in those cases. It is not clear in any of those examples that the legal outcome hinges on the definition of "supervisor." For example, Clara Whitten ultimately did not prevail on her discrimination claims — notwithstanding the fact that the Fourth Circuit adopted the approach advocated by the dissent, see Whitten v. Fred's, Inc., 601 F. 3d 231, 243-247 (2010)--because the District Court subsequently dismissed her claims for lack of jurisdiction. See Whitten v. Fred's, Inc., No. 8:08-0218-HMH-BHH, 2010 WL 2757005, *3 (D SC, July 12, 2010). And although the dissent suggests that Donna Rhodes' employer would have been liable under the dissent's definition of "supervisor," that is pure speculation: It is not clear that Rhodes suffered any tangible employment action, see Rhodes v. Illinois Dept. of Transp., 243 F. Supp. 2d 810, 817 (ND Ill. 2003), and no court had occasion to determine whether the employer could have established the affirmative defense (a prospect that is certainly feasible given that there was evidence that the employer had an "adequate anti-harassment policy in place," that the employer promptly addressed the incidents about which Rhodes complained, and that "Rhodes failed to take advantage of the preventative or corrective opportunities provided," Rhodes v. Illinois Dept. of Transp., 359 F. 3d, at 507).15 Finally, the dissent's reliance on Monika Starke's case is perplexing given that the EEOC ultimately did obtain relief (in the amount of $50,000) for the harassment of Starke,16 see Order of Dismissal in No. 1:07-cv-0095-LRR (ND Iowa, Feb. 2, 2013), Dkt. No. 380, Exh. 1, ¶1, notwithstanding the fact that the court in that case applied the definition of "supervisor" that we adopt today, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 684 (CA8 2012). In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding "relieves scores of employers of responsibility" for the behavior of workers they employ. Post, at 14. The standard we adopt is not untested. It has been the law for quite some time in the First, Seventh, and Eighth Circuits, see, e.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033-1034, and n. 1 (CA7 1998)--i.e., in Arkansas, Illinois, Indiana, Iowa, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, Rhode Island, South Dakota, and Wisconsin. We are aware of no evidence that this rule has produced dire consequences in these 14 jurisdictions. Despite its rhetoric, the dissent acknowledges that Davis, the alleged harasser in this case, would probably not qualify as a supervisor even under the dissent's preferred approach. See post, at 20 ("[T]here is cause to anticipate that Davis would not qualify as Vance's supervisor"). On that point, we agree. Petitioner did refer to Davis as a "supervisor" in some of the complaints that she filed, App. 28; id., at 45, and Davis' job description does state that she supervises Kitchen Assistants and Substitutes and "[l]ead[s] and direct[s]" certain other employees, id., at 12-13. But under the dissent's preferred approach, supervisor status hinges not on formal job titles or "paper descriptions" but on "specific facts about the working relationship." Post, at 20-21 (internal quotation marks omitted). Turning to the "specific facts" of petitioner's and Davis' working relationship, there is simply no evidence that Davis directed petitioner's day-to-day activities. The record indicates that Bill Kimes (the general manager of the Catering Division) and the chef assigned petitioner's daily tasks, which were given to her on "prep lists." No. 1:06-cv-1452-SEB-JMS, 2008 WL 4247836, *7 (SD Ind., Sept. 10, 2008); App. 430, 431. The fact that Davis sometimes may have handed prep lists to petitioner, see id., at 74, is insufficient to confer supervisor status, see App. to Pet. for Cert. 92a (EEOC Guidance). And Kimes — not Davis — set petitioner's work schedule. See App. 431. See also id., at 212. Because the dissent concedes that our approach in this case deprives petitioner of none of the protections that Title VII offers, the dissent's critique is based on nothing more than a hypothesis as to how our approach might affect the outcomes of other cases — cases where an employee who cannot take tangible employment actions, but who does direct the victim's daily work activities in a meaningful way, creates an unlawful hostile environment, and yet does not wield authority of such a degree and nature that the employer can be deemed negligent with respect to the harassment. We are skeptical that there are a great number of such cases. However, we are confident that, in every case, the approach we take today will be more easily administrable than the approach advocated by the dissent.* * * We hold that an employee is a "supervisor" for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed. It is so ordered.Thomas, J., concurring 570 U. S. ____ (2013)No. 11-556MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITYon writ of certiorari to the united states court of appeals for the seventh circuit[June 24, 2013] Justice Thomas, concurring. I continue to believe that Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), were wrongly decided. See ante, at 8. However, I join the opinion because it provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee's harassment.Ginsburg, J., dissenting 570 U. S. ____ (2013)No. 11-556MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITYon writ of certiorari to the united states court of appeals for the seventh circuit[June 24, 2013] Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting. In Faragher v. Boca Raton, 524 U. S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), this Court held that an employer can be vicariously liable under Title VII of the Civil Rights Act of 1964 for harassment by an employee given supervisory authority over subordinates. In line with those decisions, in 1999, the Equal Employment Opportunity Commission (EEOC) provided enforcement guidance "regarding employer liability for harassment by supervisors based on sex, race, color, religion, national origin, age, disability, or protected activity." EEOC, Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, 8 BNA FEP Manual 405:7651 (Feb. 2003) (hereinafter EEOC Guidance). Addressing who qualifies as a supervisor, the EEOC answered: (1) an individual authorized "to undertake or recommend tangible employment decisions affecting the employee," including "hiring, firing, promoting, demoting, and reassigning the employee"; or (2) an individual authorized "to direct the employee's daily work activities." Id., at 405:7654. The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions. The limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation's workplaces. I would follow the EEOC's Guidance and hold that the authority to direct an employee's daily activities establishes supervisory status under Title VII.IA Title VII makes it "an unlawful employment practice for an employer" to "discriminate against any individual with respect to" the "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). The creation of a hostile work environment through harassment, this Court has long recognized, is a form of proscribed discrimination. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 78 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64-65 (1986). What qualifies as harassment? Title VII imposes no "general civility code." Oncale, 523 U. S., at 81. It does not reach "the ordinary tribulations of the workplace," for example, "sporadic use of abusive language" or generally boorish conduct. B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992). See also 1 B. Lindemann & P. Grossman, Employment Discrimination Law 1335-1343 (4th ed. 2007) (hereinafter Lindemann & Grossman). To be actionable, charged behavior need not drive the victim from her job, but it must be of such sever-ity or pervasiveness as to pollute the working environment, thereby "alter[ing] the conditions of the victim's employment." Harris v. Forklift Systems, Inc., 510 U. S. 17, 21-22 (1993). In Faragher and Ellerth, this Court established a framework for determining when an employer may be held liable for its employees' creation of a hostile work environment. Recognizing that Title VII's definition of "employer" includes an employer's "agent[s]," 42 U. S. C. §2000e(b), the Court looked to agency law for guidance in formulating liability standards. Faragher, 524 U. S., at 791, 801; Ellerth, 524 U. S., at 755-760. In particular, the Court drew upon §219(2)(d) of the Restatement (Second) of Agency (1957), which makes an employer liable for the conduct of an employee, even when that employee acts beyond the scope of her employment, if the employee is "aided in accomplishing" a tort "by the existence of the agency relation." See Faragher, 524 U. S., at 801; Ellerth, 524 U. S., at 758. Stemming from that guide, Faragher and Ellerth distinguished between harassment perpetrated by supervisors, which is often enabled by the supervisor's agency relationship with the employer, and harassment perpetrated by co-workers, which is not similarly facilitated. Faragher, 524 U. S., at 801-803; Ellerth, 524 U. S., at 763-765. If the harassing employee is a supervisor, the Court held, the employer is vicariously liable whenever the harassment culminates in a tangible employment action. Far- agher, 524 U. S., at 807-808; Ellerth, 524 U. S., at 764-765. The term "tangible employment action," Ellerth observed, "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id., at 761. Such an action, the Court explained, provides "assurance the injury could not have been inflicted absent the agency relation." Id., at 761-762. An employer may also be held vicariously liable for a supervisor's harassment that does not culminate in a tangible employment action, the Court next determined. In such a case, however, the employer may avoid liability by showing that (1) it exercised reasonable care to pre-vent and promptly correct harassing behavior, and (2) the complainant unreasonably failed to take advantage of preventative or corrective measures made available to her. Faragher, 524 U. S., at 807; Ellerth, 524 U. S., at 765. The employer bears the burden of establishing this affirmative defense by a preponderance of the evidence. Faragher, 524 U. S., at 807; Ellerth, 524 U. S., at 765. In contrast, if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the complainant must show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action. See Faragher, 524 U. S., at 799; Ellerth, 524 U. S., at 758-759. See also 29 CFR §1604.11(d) (2012); EEOC Guidance 405:7652.B The distinction Faragher and Ellerth drew between supervisors and co-workers corresponds to the realities of the workplace. Exposed to a fellow employee's harassment, one can walk away or tell the offender to "buzz off." A supervisor's slings and arrows, however, are not so easily avoided. An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer. She may be saddled with an excessive workload or with placement on a shift spanning hours disruptive of her family life. And she may be demoted or fired. Facing such dangers, she may be reluctant to blow the whistle on her superior, whose "power and authority invests his or her harassing conduct with a particular threatening character." Ellerth, 524 U. S., at 763. See also Faragher, 524 U. S., at 803; Brief for Respondent 23 ("The potential threat to one's livelihood or working conditions will make the victim think twice before resisting harassment or fighting back."). In short, as Faragher and Ellerth recognized, harassment by supervisors is more likely to cause palpable harm and to persist unabated than similar conduct by fellow employees.II While Faragher and Ellerth differentiated harassment by supervisors from harassment by co-workers, neither decision gave a definitive answer to the question: Who qualifies as a supervisor? Two views have emerged. One view, in line with the EEOC's Guidance, counts as a supervisor anyone with authority to take tangible employ-ment actions or to direct an employee's daily work activities. E.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 127 (CA2 2003); Whitten v. Fred's, Inc., 601 F. 3d 231, 246 (CA4 2010); EEOC Guidance 405:7654. The other view ranks as supervisors only those authorized to take tangible employment actions. E.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1034 (CA7 1998); Joens v. John Morrell & Co., 354 F. 3d 938, 940-941 (CA8 2004). Notably, respondent Ball State University agreed with petitioner Vance and the United States, as amicus curiae, that the tangible-employment-action-only test "does not necessarily capture all employees who may qualify as supervisors." Brief for Respondent 1. "[V]icarious liability," Ball State acknowledged, "also may be triggered when the harassing employee has the authority to control the victim's daily work activities in a way that materially enables the harassment." Id., at 1-2. The different view taken by the Court today is out of accord with the agency principles that, Faragher and Ellerth affirmed, govern Title VII. See supra, at 3-4. It is blind to the realities of the workplace, and it discounts the guidance of the EEOC, the agency Congress established to interpret, and superintend the enforcement of, Title VII. Under that guidance, the appropriate question is: Has the employer given the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work? If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer's making.A Until today, our decisions have assumed that employees who direct subordinates' daily work are supervisors. In Faragher, the city of Boca Raton, Florida, employed Bill Terry and David Silverman to oversee the city's corps of ocean lifeguards. 524 U. S., at 780. Terry and Silverman "repeatedly subject[ed] Faragher and other female lifeguards to uninvited and offensive touching," and they regularly "ma[de] lewd remarks, and [spoke] of women in offensive terms." Ibid. (internal quotation marks omitted). Terry told a job applicant that "female lifeguards had sex with their male counterparts," and then "asked whether she would do the same." Id., at 782. Silverman threatened to assign Faragher to toilet-cleaning duties for a year if she refused to date him. Id., at 780. In words and conduct, Silverman and Terry made the beach a hostile place for women to work. As Chief of Boca Raton's Marine Safety Division, Terry had authority to "hire new lifeguards (subject to the approval of higher management), to supervise all aspects of the lifeguards' work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline." Id., at 781. Silverman's duties as a Marine Safety lieutenant included "making the lifeguards' daily assignments, and ... supervising their work and fitness training." Ibid. Both men "were granted virtually unchecked authority over their subordinates, directly controlling and supervising all aspects of Faragher's day-to-day activities." Id., at 808 (internal quotation marks and brackets omitted). We may assume that Terry would fall within the definition of supervisor the Court adopts today. See ante, at 9.1 But nothing in the Faragher record shows that Silverman would. Silverman had oversight and assignment responsibilities — he could punish lifeguards who would not date him with full-time toilet-cleaning duty — but there was no evidence that he had authority to take tangible employment actions. See Faragher, 524 U. S., at 780-781. Holding that Boca Raton was vicariously liable for Silverman's harassment, id., at 808-809, the Court characterized him as Faragher's supervisor, see id., at 780, and there was no dissent on that point, see id., at 810 (Thomas, J., dissenting). Subsequent decisions reinforced Faragher's use of the term "supervisor" to encompass employees with authority to direct the daily work of their victims. In Pennsylvania State Police v. Suders, 542 U. S. 129, 140 (2004), for example, the Court considered whether a constructive discharge occasioned by supervisor harassment ranks as a tangible employment action. The harassing employees lacked authority to discharge or demote the complainant, but they were "responsible for the day-to-day supervision" of the workplace and for overseeing employee shifts. Suders v. Easton, 325 F. 3d 432, 450, n. 11 (CA3 2003). Describing the harassing employees as the complainant's "supervisors," the Court proceeded to evaluate the complainant's constructive discharge claim under the Ellerth and Faragher framework. Suders, 542 U. S., at 134, 140-141. It is true, as the Court says, ante, at 15-17, and n. 11, that Faragher and later cases did not squarely resolve whether an employee without power to take tangible em-ployment actions may nonetheless qualify as a supervisor. But in laboring to establish that Silverman's supervisor status, undisputed in Faragher, is not dispositive here, the Court misses the forest for the trees. Faragher illustrates an all-too-plain reality: A supervisor with authority to control subordinates' daily work is no less aided in his harassment than is a supervisor with authority to fire, demote, or transfer. That Silverman could threaten Far-agher with toilet-cleaning duties while Terry could orally reprimand her was inconsequential in Faragher, and properly so. What mattered was that both men took advantage of the power vested in them as agents of Boca Raton to facilitate their abuse. See Faragher, 524 U. S., at 801 (Silverman and Terry "implicitly threaten[ed] to mis-use their supervisory powers to deter any resistance or complaint."). And when, assisted by an agency relationship, in-charge superiors like Silverman perpetuate a discriminatory work environment, our decisions have appropriately held the employer vicariously liable, subject to the above-described affirmative defense. See supra, at 3-4.B Workplace realities fortify my conclusion that harassment by an employee with power to direct subordinates' day-to-day work activities should trigger vicarious employer liability. The following illustrations, none of them hypothetical, involve in-charge employees of the kind the Court today excludes from supervisory status.2 Yasharay Mack: Yasharay Mack, an African-American woman, worked for the Otis Elevator Company as an elevator mechanic's helper at the Metropolitan Life Building in New York City. James Connolly, the "mechanic in charge" and the senior employee at the site, targeted Mack for abuse. He commented frequently on her "fantastic ass," "luscious lips," and "beautiful eyes," and, using deplorable racial epithets, opined that minorities and women did not "belong in the business." Once, he pulled her on his lap, touched her buttocks, and tried to kiss her while others looked on. Connolly lacked authority to take tangible employment actions against mechanic's helpers, but he did assign their work, control their schedules, and direct the particulars of their workdays. When he became angry with Mack, for example, he denied her overtime hours. And when she complained about the mistreatment, he scoffed, "I get away with everything." See Mack, 326 F. 3d, at 120-121, 125-126 (internal quotation marks omitted). Donna Rhodes: Donna Rhodes, a seasonal highway maintainer for the Illinois Department of Transportation, was responsible for plowing snow during winter months. Michael Poladian was a "Lead Lead Worker" and Matt Mara, a "Technician" at the maintenance yard where Rhodes worked. Both men assembled plow crews and managed the work assignments of employees in Rhodes's position, but neither had authority to hire, fire, promote, demote, transfer, or discipline employees. In her third season working at the yard, Rhodes was verbally assaulted with sex-based invectives and a pornographic image was taped to her locker. Poladian forced her to wash her truck in sub-zero temperatures, assigned her undesirable yard work instead of road crew work, and prohibited another employee from fixing the malfunctioning heating system in her truck. Conceding that Rhodes had been subjected to a sex-based hostile work environment, the Department of Transportation argued successfully in the District Court and Court of Appeals that Poladian and Mara were not Rhodes's supervisors because they lacked authority to take tangible employment actions against her. See Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498, 501-503, 506-507 (CA7 2004). Clara Whitten: Clara Whitten worked at a discount retail store in Belton, South Carolina. On Whitten's first day of work, the manager, Matt Green, told her to "give [him] what [he] want[ed]" in order to obtain approval for long weekends off from work. Later, fearing what might transpire, Whitten ignored Green's order to join him in an isolated storeroom. Angered, Green instructed Whitten to stay late and clean the store. He demanded that she work over the weekend despite her scheduled day off. Dismissing her as "dumb and stupid," Green threatened to make her life a "living hell." Green lacked authority to fire, promote, demote, or otherwise make decisions affecting Whitten's pocketbook. But he directed her activities, gave her tasks to accomplish, burdened her with undesirable work assignments, and controlled her schedule. He was usually the highest ranking employee in the store, and both Whitten and Green considered him the supervisor. See Whitten, 601 F. 3d, at 236, 244-247 (internal quotation marks omitted). Monika Starke: CRST Van Expedited, Inc., an interstate transit company, ran a training program for newly hired truckdrivers requiring a 28-day on-the-road trip. Monika Starke participated in the program. Trainees like Starke were paired in a truck cabin with a single "lead driver" who lacked authority to hire, fire, promote, or demote, but who exercised control over the work environment for the duration of the trip. Lead drivers were responsible for providing instruction on CRST's driving method, assigning specific tasks, and scheduling rest stops. At the end of the trip, lead drivers evaluated trainees' performance with a nonbinding pass or fail recommendation that could lead to full driver status. Over the course of Starke's training trip, her first lead driver, Bob Smith, filled the cabin with vulgar sexual remarks, commenting on her breast size and comparing the gear stick to genitalia. A second lead driver, David Goodman, later forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade. See EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 665-666, 684-685 (CA8 2012). In each of these cases, a person vested with authority to control the conditions of a subordinate's daily work life used his position to aid his harassment. But in none of them would the Court's severely confined definition of su-pervisor yield vicarious liability for the employer. The senior elevator mechanic in charge, the Court today tells us, was Mack's co-worker, not her supervisor. So was the store manager who punished Whitten with long hours for refusing to give him what he wanted. So were the lead drivers who controlled all aspects of Starke's working environment, and the yard worker who kept other employees from helping Rhodes to control the heat in her truck. As anyone with work experience would immediately grasp, James Connolly, Michael Poladian, Matt Mara, Matt Green, Bob Smith, and David Goodman wielded employer-conferred supervisory authority over their victims. Each man's discriminatory harassment derived force from, and was facilitated by, the control reins he held. Cf. Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 70-71 (2006) ("Common sense suggests that one good way to discourage an employee ... from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable."). Under any fair reading of Title VII, in each of the illustrative cases, the superior employee should have been classified a supervisor whose conduct would trigger vicarious liability.3C Within a year after the Court's decisions in Faragher and Ellerth, the EEOC defined "supervisor" to include any employee with "authority to undertake or recommend tangible employment decisions," or with "authority to di-rect [another] employee's daily work activities." EEOC Guidance 405:7654. That definition should garner "respect proportional to its 'power to persuade.' " United States v. Mead Corp., 533 U. S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). See also Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. 271, 276 (2009) (EEOC guidelines merited Skidmore deference); Federal Express Corp. v. Holowecki, 552 U. S. 389, 399-403 (2008) (same); Meritor, 477 U. S., at 65 (same).4 The EEOC's definition of supervisor reflects the agency's "informed judgment" and "body of experience" in enforcing Title VII. Id., at 65 (internal quotation marks omitted). For 14 years, in enforcement actions and litigation, the EEOC has firmly adhered to its definition. See Brief for United States as Amicus Curiae 28 (citing numerous briefs in the Courts of Appeals setting forth the EEOC's understanding). In developing its definition of supervisor, the EEOC paid close attention to the Faragher and Ellerth framework. An employer is vicariously liable only when the authority it has delegated enables actionable harassment, the EEOC recognized. EEOC Guidance 405:7654. For that reason, a supervisor's authority must be "of a sufficient magnitude so as to assist the harasser ... in carrying out the harassment." Ibid. Determining whether an employee wields sufficient authority is not a mechanical inquiry, the EEOC explained; instead, specific facts about the employee's job function are critical. Id., at 405:7653 to 405:7654. Thus, an employee with authority to increase another's workload or assign undesirable tasks may rank as a supervisor, for those powers can enable harassment. Id., at 405:7654. On the other hand, an employee "who directs only a limited number of tasks or assignments" ordinarily would not qualify as a supervisor, for her harassing conduct is not likely to be aided materially by the agency relationship. Id., at 405:7655. In my view, the EEOC's definition, which the Court puts down as "a study in ambiguity," ante, at 21, has the ring of truth and, therefore, powerfully persuasive force. As a precondition to vicarious employer liability, the EEOC explained, the harassing supervisor must wield authority of sufficient magnitude to enable the harassment. In other words, the aided-in-accomplishment standard requires "something more than the employment relation itself." Ellerth, 524 U. S., at 760. Furthermore, as the EEOC perceived, in assessing an employee's qualification as a supervisor, context is often key. See infra, at 16-17. I would accord the agency's judgment due respect.III Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC's Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the "robust protection against workplace discrimination Congress intended Title VII to secure." Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 660 (2007) (Ginsburg, J., dissenting).A The Court purports to rely on the Ellerth and Faragher framework to limit supervisor status to those capable of taking tangible employment actions. Ante, at 10, 18. That framework, we are told, presupposes "a sharp line between co-workers and supervisors." Ante, at 18. The definition of supervisor decreed today, the Court insists, is "clear," "readily applied," and "easily workable," ante, at 10, 20, when compared to the EEOC's vague standard, ante, at 22. There is reason to doubt just how "clear" and "workable" the Court's definition is. A supervisor, the Court holds, is someone empowered to "take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsi-bilities, or a decision causing a significant change in benefits.' " Ante, at 9 (quoting Ellerth, 524 U. S., at 761). Whether reassignment authority makes someone a supervisor might depend on whether the reassignment carries economic consequences. Ante, at 16, n. 9. The power to discipline other employees, when the discipline has economic consequences, might count, too. Ibid. So might the power to initiate or make recommendations about tangible employment actions. Ante, at 15, n. 8. And when an employer "concentrates all decisionmaking authority in a few individuals" who rely on information from "other workers who actually interact with the affected employee," the other workers may rank as supervisors (or maybe not; the Court does not commit one way or the other). Ante, at 26. Someone in search of a bright line might well ask, what counts as "significantly different responsibilities"? Can any economic consequence make a reassignment or disciplinary action "significant," or is there a minimum threshold? How concentrated must the decisionmaking authority be to deem those not formally endowed with that authority nevertheless "supervisors"? The Court leaves these questions unanswered, and its liberal use of "mights" and "mays," ante, at 15, n. 8, 16, n. 9, 26, dims the light it casts.5 That the Court has adopted a standard, rather than a clear rule, is not surprising, for no crisp definition of supervisor could supply the unwavering line the Court desires. Supervisors, like the workplaces they manage, come in all shapes and sizes. Whether a pitching coach supervises his pitchers (can he demote them?), or an artistic director supervises her opera star (can she impose significantly different responsibilities?), or a law firm associate supervises the firm's paralegals (can she fire them?) are matters not susceptible to mechanical rules and on-off switches. One cannot know whether an employer has vested supervisory authority in an employee, and whether harassment is aided by that authority, without looking to the particular working relationship between the harasser and the victim. That is why Faragher and Ellerth crafted an employer liability standard embracive of all whose authority significantly aids in the creation and perpetuation of harassment. The Court's focus on finding a definition of supervisor capable of instant application is at odds with the Court's ordinary emphasis on the importance of particular circumstances in Title VII cases. See, e.g., Burlington Northern, 548 U. S., at 69 ("[T]he significance of any given act of retaliation will often depend upon the particular circumstances."); Harris, 510 U. S., at 23 ("[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances.").6 The question of supervisory status, no less than the question whether retali-ation or harassment has occurred, "depends on a constellation of surrounding circumstances, expectations, and relationships." Oncale, 523 U. S., at 81-82. The EEOC's Guidance so perceives.B As a consequence of the Court's truncated conception of supervisory authority, the Faragher and Ellerth framework has shifted in a decidedly employer-friendly direction. This realignment will leave many harassment victims without an effective remedy and undermine Title VII's capacity to prevent workplace harassment. The negligence standard allowed by the Court, see ante, at 24, scarcely affords the protection the Faragher and Ellerth framework gave victims harassed by those in control of their lives at work. Recall that an employer is negligent with regard to harassment only if it knew or should have known of the conduct but failed to take appropriate corrective action. See 29 CFR §1604.11(d); EEOC Guidance 405:7652 to 405:7653. It is not uncommon for employers to lack actual or constructive notice of a harassing employee's conduct. See Lindemann & Grossman 1378-1379. An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability under a negligence standard. Id., at 1378. Faragher is illustrative. After enduring unrelenting harassment, Faragher reported Terry's and Silverman's conduct informally to Robert Gordon, another immediate supervisor. 524 U. S., at 782-783. But the lifeguards were "completely isolated from the City's higher management," and it did not occur to Faragher to pursue the matter with higher ranking city officials distant from the beach. Id., at 783, 808 (internal quotation marks omitted). Applying a negligence standard, the Eleventh Circuit held that, despite the pervasiveness of the harassment, and despite Gordon's awareness of it, Boca Raton lacked constructive notice and therefore escaped liability. Id., at 784-785. Under the vicarious liability standard, however, Boca Raton could not make out the affirmative defense, for it had failed to disseminate a policy against sexual harassment. Id., at 808-809. On top of the substantive differences in the negligence and vicarious liability standards, harassment victims, under today's decision, are saddled with the burden of proving the employer's negligence whenever the harasser lacks the power to take tangible employment actions. Faragher and Ellerth, by contrast, placed the burden squarely on the employer to make out the affirmative defense. See Suders, 542 U. S., at 146 (citing Ellerth, 524 U. S., at 765; Faragher, 524 U. S., at 807). This allocation of the burden was both sensible and deliberate: An employer has superior access to evidence bearing on whether it acted reasonably to prevent or correct harassing behavior, and superior resources to marshal that evidence. See 542 U. S., at 146, n. 7 ("The employer is in the best position to know what remedial procedures it offers to employees and how those procedures operate."). Faced with a steeper substantive and procedural hill to climb, victims like Yasharay Mack, Donna Rhodes, Clara Whitten, and Monika Starke likely will find it impossible to obtain redress. We can expect that, as a consequence of restricting the supervisor category to those formally empowered to take tangible employment actions, victims of workplace harassment with meritorious Title VII claims will find suit a hazardous endeavor.7 Inevitably, the Court's definition of supervisor will hinder efforts to stamp out discrimination in the workplace. Because supervisors are comparatively few, and employees are many, "the employer has a greater opportunity to guard against misconduct by supervisors than by common workers," and a greater incentive to "screen [supervisors], train them, and monitor their performance." Faragher, 524 U. S., at 803. Vicarious liability for employers serves this end. When employers know they will be answerable for the injuries a harassing jobsite boss inflicts, their incentive to provide preventative instruction is heightened. If vicarious liability is confined to supervisors formally empowered to take tangible employment actions, however, employers will have a diminished incentive to train those who control their subordinates' work activities and schedules, i.e., the supervisors who "actually interact" with employees. Ante, at 26.IV I turn now to the case before us. Maetta Vance worked as substitute server and part-time catering assistant for Ball State University's Banquet and Catering Division. During the period in question, she alleged, Saundra Davis, a catering specialist, and other Ball State employees subjected her to a racially hostile work environment. Applying controlling Circuit precedent, the District Court and Seventh Circuit concluded that Davis was not Vance's supervisor, and reviewed Ball State's liability for her conduct under a negligence standard. 646 F. 3d 461, 470-471 (2011); App. to Pet. for Cert. 53a-55a, 59a-60a. Because I would hold that the Seventh Circuit erred in restricting supervisor status to employees formally empowered to take tangible employment actions, I would remand for application of the proper standard to Vance's claim. On this record, however, there is cause to anticipate that Davis would not qualify as Vance's supervisor.8 Supervisor status is based on "job function rather than job title," and depends on "specific facts" about the working relationship. EEOC Guidance 405:7654. See supra, at 13. Vance has adduced scant evidence that Davis controlled the conditions of her daily work. Vance stated in an affidavit that the general manager of the Catering Division, Bill Kimes, was charged with "overall supervision in the kitchen," including "reassign[ing] people to perform different tasks," and "control[ling] the schedule." App. 431. The chef, Shannon Fultz, assigned tasks by preparing "prep lists" of daily duties. Id., at 277-279, 427. There is no allegation that Davis had a hand in creating these prep lists, nor is there any indication that, in fact, Davis otherwise controlled the particulars of Vance's workday. Vance herself testified that she did not know whether Davis was her supervisor. Id., at 198. True, Davis' job description listed among her responsibilities "[l]ead[ing] and direct[ing] kitchen part-time, substitute, and student employee helpers via demonstration, coaching, and overseeing their work." Id., at 13. And another employee testified to believing that Davis was "a supervisor." Id., at 386. But because the supervisor-status inquiry should focus on substance, not labels or paper descriptions, it is doubtful that this slim evidence would enable Vance to survive a motion for summary judgment. Nevertheless, I would leave it to the Seventh Circuit to decide, under the proper standard for super-visory status, what impact, if any, Davis' job description and the co-worker's statement should have on the determination of Davis' status.9V Regrettably, the Court has seized upon Vance's thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII's protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. See supra, at 5. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII. Congress has, in the recent past, intervened to correct this Court's wayward interpretations of Title VII. See Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5, superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007). See also Civil Rights Act of 1991, 105 Stat. 1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989); Martin v. Wilks, 490 U. S. 755 (1989); Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989); and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). The ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.* * * For the reasons stated, I would reverse the judgment of the Seventh Circuit and remand the case for application of the proper standard for determining who qualifies as a supervisor.FOOTNOTESFootnote 1 See, e.g., Williams v. Waste Management of Ill., 361 F. 3d 1021, 1029 (CA7 2004); McGinest v. GTE Serv. Corp., 360 F. 3d 1103, 1119 (CA9 2004); Joens v. John Morrell & Co., 354 F. 3d 938, 940 (CA8 2004); Noviello v. Boston, 398 F. 3d 76, 95 (CA1 2005); Duch v. Jakubek, 588 F. 3d 757, 762 (CA2 2009); Huston v. Procter & Gamble Paper Prods. Corp., 568 F. 3d 100, 104-105 (CA3 2009).Footnote 2 The Restatement (Third) of Agency disposed of this exception to liability, explaining that "[t]he purposes likely intended to be met by the 'aided in accomplishing' basis are satisfied by a more fully elaborated treatment of apparent authority and by the duty of reasonable care that a principal owes to third parties with whom it interacts through employees and other agents." 2 Restatement (Third) §7.08, p. 228 (2005). The parties do not argue that this change undermines our holdings in Faragher and Ellerth.Footnote 3 Faragher and Ellerth involved hostile environment claims premised on sexual harassment. Several federal courts of appeals have held that Faragher and Ellerth apply to other types of hostile environment claims, including race-based claims. See Spriggs v. Diamond Auto Glass, 242 F. 3d 179, 186, n. 9 (CA4 2001) (citing cases reflecting "the developing consensus . . . that the holdings [in Faragher and Ellerth] apply with equal force to other types of harassment claims under Title VII"). But see Ellerth, 524 U. S., at 767 (Thomas, J., dissenting) (stating that, as a result of the Court's decision in Ellerth, "employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged"). Neither party in this case challenges the application of Faragher and Ellerth to race-based hostile environment claims, and we assume that the framework announced in Faragher and Ellerth applies to cases such as this one.Footnote 4 The United States urges us to defer to the EEOC Guidance. Brief for United States as Amicus Curiae 26-29 (citing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). But to do so would be proper only if the EEOC Guidance has the power to persuade, which "depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements." Id., at 140. For the reasons explained below, we do not find the EEOC Guidance persuasive.Footnote 5 http://www.businessdictionary.com/definition/supervisor.html (all Internet materials as visited June 21, 2013, and available in Clerk of Court's case file).Footnote 6 http://management.about.com/od/policiesandprocedures/g/ supervisor1.htmlFootnote 7 One outlier that petitioner points to is the National Labor Relations Act (NLRA)C. §152(11). Petitioner argues that the NLRA's definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates. Brief for Petitioner 27-28.The NLRA certainly appears to define "supervisor" in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term "supervisor" is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect. E.g., In re Connecticut Humane Society, 358 NLRB No. 31, *33 (Apr. 12, 2012); Frenchtown Acquisition Co., Inc. v. NLRB, 683 F. 3d 298, 305 (CA6 2012); Beverly Enterprises-Massachusetts, Inc. v. NLRB, 165 F. 3d 960, 963 (CADC 1999). Indeed, in defining a supervisor for purposes of the NLRA, Congress sought to distinguish "between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action." S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). Cf. NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571, 586 (1994) (HCRA) (Ginsburg, J., dissenting) ("Through case-by-case adjudication, the Board has sought to distinguish individuals exercising the level of control that truly places them in the ranks of management, from highly skilled employees, whether professional or technical, who perform, incidentally to their skilled work, a limited supervisory role"). Accordingly, the NLRB has interpreted the NLRA's statutory definition of supervisor more narrowly than its plain language might permit. See, e.g., Connecticut Humane Society, supra, at *39 (an employee who evaluates others is not a supervisor unless the evaluation "affect[s] the wages and the job status of the employee evaluated"); In re CGLM, Inc., 350 NLRB 974, 977 (2007) (" 'If any authority over someone else, no matter how insignificant or infrequent, made an employee a supervisor, our industrial composite would be predominantly supervisory. Every order-giver is not a supervisor. Even the traffic director tells the president of the company where to park his car' " (quoting NLRB v. Security Guard Serv., Inc., 384 F. 2d 143, 151 (CA5 1967))). The NLRA therefore does not define the term "supervisor" as broadly as petitioner suggests.To be sure, the NLRA may in some instances define "supervisor" more broadly than we define the term in this case. But those differences reflect the NLRA's unique purpose, which is to preserve the balance of power between labor and management, see HCRA, supra, at 573 (explaining that Congress amended the NLRA to exclude supervisors in order to address the "imbalance between labor and management" that resulted when "supervisory employees could organize as part of bargaining units and negotiate with the employer"). That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. An employee may have a sufficient degree of authority over subordinates such that Congress has decided that the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees' interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII. The NLRA's definition of supervisor therefore is not controlling in this context.Footnote 8 The dissent suggests that it is unclear whether Terry would qualify as a supervisor under the test we adopt because his hiring decisions were subject to approval by higher management. Post, at 7, n. 1 (opinion of Ginsburg, J.). See also Faragher, 524 U. S., at 781. But we have assumed that tangible employment actions can be subject to such approval. See Ellerth, 524 U. S., at 762. In any event, the record indicates that Terry possessed the power to make employment decisions having direct economic consequences for his victims. See Brief for Petitioner in Faragher v. Boca Raton, O. T. 1997, No. 97-282, p. 9 ("No one, during the twenty years that Terry was Marine Safety Chief, was hired without his recommendation. [He] initiated firing and suspending personnel. [His] evaluations of the lifeguards translated into salary increases. [He] made recommendations regarding promotions . . ." (citing record)).Footnote 9 Moreover, it is by no means certain that Silverman lacked the authority to take tangible employment actions against Faragher. In her merits brief, Faragher stated that, as a lieutenant, Silverman "made supervisory and disciplinary decisions and had input on the evaluations as well." Id., at 9-10. If that discipline had economic consequences (such as suspension without pay), then Silverman might qualify as a supervisor under the definition we adopt today.Silverman's ability to assign Faragher significantly different work responsibilities also may have constituted a tangible employment action. Silverman told Faragher, " 'Date me or clean the toilets for a year.' " Faragher, supra, at 780. That threatened reassignment of duties likely would have constituted significantly different responsibilities for a lifeguard, whose job typically is to guard the beach. If that reassignment had economic consequences, such as foreclosing Faragher's eligibility for promotion, then it might constitute a tangible employment action.Footnote 10 The lower court did not even address this issue. See Faragher v. Boca Raton, 111 F. 3d 1530, 1547 (CA11 1997) (Anderson, J., concurring in part and dissenting in part) (noting that it was unnecessary to "decide the threshold level of authority which a supervisor must possess in order to impose liability on the employer").Footnote 11 According to the dissent, the rule that we adopt is also inconsistent with our decision in Pennsylvania State Police v. Suders, 542 U. S. 129 (2004). See post, at 7-8. The question in that case was "whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher." Suders, supra, at 140. As the dissent implicitly acknowledges, the supervisor status of the harassing employees was not before us in that case. See post, at 8. Indeed, the employer conceded early in the litigation that the relevant employees were supervisors, App. in Pennsylvania State Police v. Suders, O. T. 2003, No. 03-95, p. 20 (Answer ¶29), and we therefore had no occasion to question that unchallenged characterization.Footnote 12 The dissent attempts to find ambiguities in our holding, see post, at 15-16, and n. 5, but it is indisputable that our holding is orders of magnitude clearer than the nebulous standard it would adopt. Employment discrimination cases present an almost unlimited number of factual variations, and marginal cases are inevitable under any standard.Footnote 13 See, e.g., Gross v. FBL Financial Services, Inc., 557 U. S. 167, 179 (2009); Armstrong v. Burdette Tomlin Memorial Hospital, 438 F. 3d 240, 249 (CA3 2006) (noting in the context of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), that that "the 'prima facie case and the shifting burdens confuse lawyers and judges, much less juries, who do not have the benefit of extensive study of the law on the subject' " (quoting Mogull v. Commercial Real Estate, 162 N. J. 449, 471, 744 A. 2d 1186, 1199 (2000))); Whittington v. Nordam Group Inc., 429 F. 3d 986, 998 (CA10 2005) (noting that unnecessarily complicated instructions complicate a jury's job in employment discrimination cases, and "unnecessary complexity increases the opportunity for error"); Sanders v. New York City Human Resources Admin., 361 F. 3d 749, 758 (CA2 2004) ("Making the burden-shifting scheme of McDonnell Douglas part of a jury charge undoubtedly constitutes error because of the manifest risk of confusion it creates"); Mogull, supra, at 473, 744 A. 2d, at 1200 ("Given the confusion that often results when the first and second stages of the McDonnell Douglas test goes to the jury, we recommend that the court should decide both those issues"); Tymkovich, The Problem with Pretext, 85 Denver Univ. L. Rev. 503, 527-529 (2008) (discussing the potential for jury confusion that arises when instructions are unduly complex and proposing a simpler framework); Grebeldinger, Instructing the Jury in a Case of Circumstantial Individual Disparate Treatment: Thoroughness or Simplicity? 12 Lab. Law. 399, 419 (1997) (concluding that more straightforward instructions "provid[e] the jury with clearer guidance of their mission"); Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment Discrimination Cases, 61 Brook. L. Rev. 703, 742-743 (1995) (discussing potential for juror confusion in the face of complex instructions); Note, Toward a Motivating Factor Test for Individual Disparate Treatment Claims, 100 Mich. L. Rev. 234, 262-273 (2001) (discussing the need for a simpler approach to jury instructions in employment discrimination cases).Footnote 14 Cf. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 Boston College L. Rev. 279, 330-334 (2010) (arguing that unnecessary confusion arises when a jury must resolve different claims under different burden frameworks); Monahan, Cabrera v. Jakabovitz — A Common-Sense Proposal for Formulating Jury Instructions Regarding Shifting Burdens of Proof in Disparate Treatment Discrimination Cases, 5 Geo. Mason U. C. R. L. J. 55, 76 (1994) ("Any jury instruction that attempts to shift the burden of persuasion on closely related issues is never likely to be successful").Footnote 15 Similarly, it is unclear whether Yasharay Mack ultimately would have prevailed even under the dissent's definition of "supervisor." The Second Circuit (adopting a definition similar to that advocated by the dissent) remanded the case for the District Court to determine whether Mack " 'unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.' " Mack v. Otis Elevator Co., 326 F. 3d 116, 127-128 (2003) (quoting Ellerth, 524 U. S., at 765). But before it had an opportunity to make any such determination, Mack withdrew her complaint and the District Court dismissed her claims with prejudice. See Stipulation and Order of Dismissal in No. 1:00-cv-7778-LAP (SDNY, Oct. 21, 2004), Dkt. No. 63.Footnote 16 Starke herself lacked standing to pursue her claims, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012), but the Eighth Circuit held that the EEOC could sue in its own name to remedy the sexual harassment against Starke and other CRST employees, see id., at 682.FOOTNOTESFootnote 1 It is not altogether evident that Terry would qualify under the Court's test. His authority to hire was subject to approval by higher management, Faragher v. Boca Raton, 524 U. S. 775, 781 (1998), and there is scant indication that he possessed other powers on the Court's list. The Court observes that Terry was able to "recommen[d]," and "initiat[e]" tangible employment actions. Ante, at 15, n. 8 (internal quotation marks omitted). Nothing in the Faragher record, however, shows that Terry had authority to take such actions himself. Far-agher's complaint alleged that Terry said he would never promote a female lifeguard to the rank of lieutenant, 524 U. S., at 780, but that statement hardly suffices to establish that he had ultimate promotional authority. Had Boca Raton anticipated the position the Court today announces, the city might have urged classification of Terry as Far-agher's superior, but not her "supervisor."Footnote 2 The illustrative cases reached the appellate level after grants of summary judgment in favor of the employer. Like the Courts of Appeals in each case, I recount the facts in the light most favorable to the employee, the nonmoving party.Footnote 3 The Court misses the point of the illustrations. See ante, at 26-28, and nn. 15-16. Even under a vicarious liability rule, the Court points out, employers might escape liability for reasons other than the harasser's status as supervisor. For example, Rhodes might have avoided summary judgment in favor of her employer; even so, it would have been open to the employer to raise and prove to a jury the Faragher/ Ellerth affirmative defense, see supra, at 3-4. No doubt other barriers also might impede an employee from prevailing, for example, Whitten's and Starke's intervening bankruptcies, see Whitten v. Fred's Inc., No. 8:08-0218-HMH-BHH, 2010 WL 2757005 (D. SC, July 12, 2010); EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012), or Mack's withdrawal of her complaint for reasons not apparent from the record, see ante, at 27-28, n. 16. That, however, is no reason to restrict the definition of supervisor in a way that leaves out those genuinely in charge.Footnote 4 Respondent's amici maintain that the EEOC Guidance is ineligible for deference under Skidmore v. Swift & Co., 323 U. S. 134 (1944), because it interprets Faragher and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), not the text of Title VII. See Brief for Society for Human Resource Management et al. 11-16. They are mistaken. The EEOC Guidance rests on the employer liability framework set forth in Faragher and Ellerth, but both the framework and EEOC Guidance construe the term "agent" in 42 U. S. C. §2000e(b).Footnote 5 Even the Seventh Circuit, whose definition of supervisor the Court adopts in large measure, has candidly acknowledged that, under its definition, supervisor status is not a clear and certain thing. See Doe v. Oberweis Dairy, 456 F. 3d 704, 717 (2006) ("The difficulty of classification in this case arises from the fact that Nayman, the shift supervisor, was in between the paradigmatic classes [of supervisor and co-worker]. He had supervisory responsibility in the sense of authority to direct the work of the [ice-cream] scoopers, and he was even authorized to issue disciplinary write-ups, but he had no authority to fire them. He was either an elevated coworker or a diminished supervisor.").Footnote 6 The Court worries that the EEOC's definition of supervisor will confound jurors who must first determine whether the harasser is a supervisor and second apply the correct employer liability standard. Ante, at 22-24, and nn. 13, 14. But the Court can point to no evidence that jury instructions on supervisor status in jurisdictions following the EEOC Guidance have in fact proved unworkable or confusing to jurors. Moreover, under the Court's definition of supervisor, jurors in many cases will be obliged to determine, as a threshold question, whether the alleged harasser possessed supervisory authority. See supra, at 15-16.Footnote 7 Nor is the Court's confinement of supervisor status needed to deter insubstantial claims. Under the EEOC Guidance, a plaintiff must meet the threshold requirement of actionable harassment and then show that her supervisor's authority was of "sufficient magnitude" to assist in the harassment. See EEOC Guidance 405:7652, 405:7654.Footnote 8 In addition to concluding that Davis was not Vance's supervisor, the District Court held that the conduct Vance alleged was "neither sufficiently severe nor pervasive to be considered objectively hostile for the purposes of Title VII." App. to Pet. for Cert. 66a. The Seventh Circuit declined to address this issue. See 646 F. 3d 461, 471 (2011). If the case were remanded, the Court of Appeals could resolve the hostile environment issue first, and then, if necessary, Davis' status as supervisor or co-worker.Footnote 9 The Court agrees that Davis "would probably not qualify" as Vance's supervisor under the EEOC's definition. Ante, at 28-29. Then why, one might ask, does the Court nevertheless reach out to announce its restrictive standard in this case, one in which all parties, including the defendant-employer, accept the fitness for Title VII of the EEOC's Guidance? See supra, at 5. |
7 | [Footnote *] Together with No. 79-1754, Joint Meeting of Essex and Union Counties v. National Sea Clammers Association et al.; No. 79-1760, City of New York et al. v. National Sea Clammers Association et al; and No. 80-12, Environmental Protection Agency et al. v. National Sea Clammers Association et al., also on certiorari to the same court. Respondents (an organization whose members harvest fish and shellfish off the coast of New York and New Jersey and one individual member) brought suit in Federal District Court against petitioners (various governmental entities and officials from New York, New Jersey, and the Federal Government), alleging damage to fishing grounds caused by discharges and ocean dumping of sewage and other waste. Invoking a number of legal theories, respondents sought injunctive and declaratory relief and compensatory and punitive damages. The District Court granted summary judgment for petitioners. It rejected respondents' federal common-law nuisance claims on the ground that such a cause of action is not available to private parties. And as to claims based on alleged violations of the Federal Water Pollution Control Act (FWPCA) and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), the court refused to allow respondents to proceed with such claims independently of the provisions of the Acts, which authorize private citizens (defined as "persons having an interest which is or may be adversely affected") to sue for injunctions to enforce the Acts, because respondents had failed to give the notice to the Environmental Protection Agency, the States, and any alleged violators required for such citizen suits. The Court of Appeals reversed. With respect to the FWPCA and MPRSA, the court held that failure to comply with the notice provisions did not preclude suits under the Acts in addition to the authorized citizen suits. The court construed the citizen-suit provisions as intended to create a limited cause of action for "private attorneys general" ("non-injured" plaintiffs), as opposed to "injured" plaintiffs such as respondents, who have an alternative basis for suit under the saving clauses in the Acts preserving any right which any person may have under "any statute or common law" to enforce any standard or limitation or to seek any other relief. The court then concluded that respondents had an implied statutory right of action. With respect to the federal common-law nuisance claims, the court rejected the District Court's conclusion that private parties may not bring such claims.Held: 1. There is no implied right of action under the FWPCA and MPRSA. Pp. 11-21. (a) In view of the elaborate provisions in both Acts authorizing enforcement suits by government officials and private citizens, it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under the Acts. In the absence of strong indicia of a contrary congressional intent, it must be concluded that Congress provided precisely the remedies it considered appropriate. Pp. 13-15. (b) The saving clauses are ambiguous as to Congress' intent to "preserve" remedies under the Acts. It is doubtful that the phrase "any statute" in those clauses includes the very statute in which the phrase is contained. Since it is clear that the citizen-suit provisions apply only to persons who can claim some sort of injury, there is no reason to infer the existence of a separate cause of action for "injured," as opposed to "non-injured" plaintiffs, as the Court of Appeals did. Pp. 15-17. (c) The legislative history of the Acts does not lead to contrary conclusions with respect to implied remedies under either Act. Rather such history provides affirmative support for the view that Congress intended the limitations imposed on citizen suits to apply to all private suits under the Acts. P. 17. (d) The existence of the express remedies in both Acts demonstrates that Congress intended to supplant any remedy that otherwise might be available to respondents under 42 U.S.C. 1983 (1976 ed., Supp. III) for violation of the Acts by any municipalities and sewerage boards among petitioners. Pp. 19-21. 2. The Federal common law of nuisance has been fully pre-empted in the area of water pollution by the FWPCA, Milwaukee v. Illinois, , and, to the extent ocean waters not covered by the FWPCA are involved, by the MPRSA. Pp. 21-22. 616 F.2d 1222, vacated and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, MARSHALL, and REHNQUIST, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 22.Milton B. Conford argued the cause for petitioners in Nos. 79-1711, 79-1754, and 79-1760. With him on the brief for petitioners Middlesex County Sewerage Authority et al. In No. 79-1711 were Marvin J. Brauth and Stephen J. Moses. Charles C. Carella and Jeffrey L. Miller filed a brief for petitioners Passaic Valley Sewerage Authority et al. in No. 79-1711. George J. Minish filed a brief for petitioners in No. 79-1754. Allen G. Schwartz, Leonard Koerner, and Stephen P. Kramer filed briefs for petitioners in No. 79-1760.Alan I. Horowitz argued the cause for petitioners in No. 80-12 and the federal respondents in Nos. 79-1711, 79-1754, 79-1760. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Raymond N. Zagone, and Jacques B. Gelin.Robert P. Corbin argued the cause for respondents National Sea Clammers Association et al. in all cases. With him on the brief were Philip A. Ryan, Edward C. German, and Dean F. Murtagh. JUSTICE POWELL delivered the opinion of the Court.In these cases, involving alleged damage to fishing grounds caused by discharges and ocean dumping of sewage and other waste, we are faced with questions concerning the availability of a damages remedy, based either on federal common law or on the provisions of two Acts - the Federal Water Pollution Control Act (FWPCA), 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq. (1976 ed. and Supp. III), and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), 86 Stat. 1052, as amended, 33 U.S.C. 1401 et seq. (1976 ed. and Supp. III).IRespondents are an organization whose members harvest fish and shellfish off the coast of New York and New Jersey, and one individual member of that organization. In 1977, they brought suit in the United States District Court for the District of New Jersey against petitioners - various governmental entities and officials from New York,1 New Jersey,2 and the Federal Government.3 Their complaint alleged that sewage, sewage "sludge," and other waste materials were being discharged into New York Harbor and the Hudson River by some of the petitioners. In addition it complained of the dumping of such materials directly into the ocean from maritime vessels. The complaint alleged that, as a result of these activities, the Atlantic Ocean was becoming polluted, and it made special reference to a massive growth of algae said to have appeared offshore in 1976.4 It then stated that this pollution was causing the "collapse of the fishing, clamming and lobster industries which operate in the waters of the Atlantic Ocean."5 Invoking a wide variety of legal theories,6 respondents sought injunctive and declaratory relief, $250 million in compensatory damages, and $250 million in punitive damages. The District Court granted summary judgment to petitioners7 on all counts of the complaint.8 In holdings relevant here, the District Court rejected respondents' nuisance claim under federal common law, see Illinois v. Milwaukee, , on the ground that such a cause of action is not available to private parties. With respect to the claims based on alleged violations of the FWPCA, the court noted that respondents had failed to comply with the 60-day notice requirement of the "citizen suit" provision in 505 (b) (1) (A) of the Act, 86 Stat. 888, 33 U.S.C. 1365 (b) (1) (A). This provision allows suits under the Act by private citizens, but authorizes only prospective relief, and the citizen plaintiffs first must give notice to the EPA, the State, and any alleged violator. Ibid.9 Because cause respondents did not give the requisite notice, the court refused to allow them to proceed with a claim under the Act independent of the citizen-suit provision and based on the general jurisdictional grant in 28 U.S.C. 1331.10 The court applied the same analysis to respondents' claims under the MPRSA, which contains similar citizen-suit and notice provisions. 33 U.S.C. 1415 (g).11 Finally, the court rejected a possible claim of maritime tort both because respondents had failed to plead such claim explicitly and because they had failed to comply with the procedural requirements of the federal and state Tort Claims Acts.12 The United States Court of Appeals for the Third Circuit reversed as to the claims based on the FWPCA. the MPRSA. the federal common law of nuisance, and maritime tort. National Sea Clammers Assn. v. City of New York, 616 F.2d 1222 (1980). With respect to the FWPCA, the court held that failure to comply with the 60-day notice provision in 505 (b) (1) (A), 33 U.S.C. 1365 (b) (1) (A), does not preclude suits under the Act in addition to the specific "citizen suits" authorized in 505. It based this conclusion on the saving clause in 505 (e), 33 U.S.C. 1365 (e), preserving "any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief." 616 F.2d, at 1226-1228; see n. 10, supra. The Court of Appeals then went on to apply our precedents in the area of implied statutory rights of action,13 and concluded that "Congress intended to permit the federal courts to entertain a private cause of action implied from the terms of the [FWPCA], preserved by the savings clause of the Act, on behalf of individuals or groups of individuals who have been or will be injured by pollution in violation of its terms." 616 F.2d, at 1230-1231.The court then applied this same analysis to the MPRSA, concluding again that the District Court had erred in dismissing respondents' claims under this Act. Although the court was not explicit on this question, it apparently concluded that suits for damages, as well as for injunctive relief, could be brought under the FWPCA and the MPRSA.14 With respect to the federal common-law nuisance claims, the Court of Appeals rejected the District Court's conclusion that private parties may not bring such claims. It also held, applying common-law principles, that respondents "alleged sufficient individual damage to permit them to recover damages for this essentially public nuisance." Id., at 1234. It thus went considerably beyond Illinois v. Milwaukee, , which involved purely prospective relief sought by a state plaintiff.15 Petitions for a writ of certiorari raising a variety of arguments were filed in this Court by a group of New Jersey sewerage authorities (No. 79-1711), by the Joint Meeting of Essex and Union Counties in New Jersey (No. 79-1754), by the City and Mayor of New York (No. 79-1760), and by all of the federal defendants named in this suit (No. 80-12).16 We granted these petitions, limiting review to three questions: (i) whether FWPCA and MPRSA imply a private right of action independent of their citizen-suit provisions, (ii) whether all federal common-law nuisance actions concerning ocean pollution now are pre-empted by the legislative scheme contained in the FWPCA and the MPRSA, and (iii) if not, whether a private citizen has standing to sue for damages under the federal common law of nuisance. We hold that there is no implied right of action under these statutes and that the federal common law of nuisance has been fully pre-empted in the area of ocean pollution.17 IIThe Federal Water Pollution Control Act was first enacted in 1948. Act of June 30, 1948, 62 Stat. 1155. It emphasized state enforcement of water quality standards. When this legislation proved ineffective, Congress passed the Federal Water Pollution Control Act Amendments of 1972, Pub. L. 92-500, 86 Stat. 816, 33 U.S.C. 1251 et seq. The Amendments shifted the emphasis to "direct restrictions on discharges," EPA v. California ex rel. State Water Resources Control Board, , and made it "unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms," id., at 205.18 While still allowing for state administration and enforcement under federally approved state plans, 402 (b), (c), 33 U.S.C. 1342 (b), (c), the Amendments created various federal minimum effluent standards, 301-307, 33 U.S.C. 1311-1317.The Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. 92-532, 86 Stat. 1052, sought to create comprehensive federal regulation of the dumping of materials into ocean waters near the United States coastline. Section 101 (a) of the Act requires a permit for any dumping into ocean waters, when the material is transported from the United States or on an American vessel or aircraft. 33 U.S.C. 1411 (a).19 In addition, it requires a permit for the dumping of material transported from outside the United States into the territorial seas or in the zone extending 12 miles from the coastline, "to the extent that it may effect the territorial sea or the territory of the United States." 1411 (b).The exact nature of respondents' claims under these two Acts is not clear, but the claims appear to fall into two categories. The main contention is that the EPA and the Army Corps of Engineers have permitted the New Jersey and New York defendants to discharge and dump pollutants in amounts that are not permitted by the Acts. In addition, they seem to allege that the New York and New Jersey defendants have violated the terms of their permits. The question before us is whether respondents may raise either of these claims in a private suit for injunctive and monetary relief, where such a suit is not expressly authorized by either of these Acts.20 AIt is unnecessary to discuss at length the principles set out in recent decisions concerning the recurring question whether Congress intended to create a private right of action under a federal statute without saying so explicitly.21 The key to the inquiry is the intent of the Legislature. Texas Industries, Inc. v. Radcliff Materials, Inc., ; California v. Sierra Club, ; Universities Research Assn. v. Coutu, ; Transamerica Mortgage Advisors, Inc. v. Lewis, ; Touche Ross & Co. v. Redington, . We look first, of course, to the statutory language, particularly to the provisions made therein for enforcement and relief. Then we review the legislative history and other traditional aids of statutory interpretation to determine congressional intent.These Acts contain unusually elaborate enforcement provisions, conferring authority to sue for this purpose both on government officials and private citizens. The FWPCA, for example, authorizes the EPA Administrator to respond to violations of the Act with compliance orders and civil suits. 309, 33 U.S.C. 1319.22 He may seek a civil penalty of up to $10,000 per day, 309 (d), 33 U.S.C. 1319 (d), and criminal penalties also are available, 309 (c), 33 U.S.C. 1319 (c). States desiring to administer their own permit programs must demonstrate that state officials possess adequate authority to abate violations through civil or criminal penalties or other means of enforcement. 402 (b) (7), 33 U.S.C. 1342 (b) (7). In addition, under 509 (b), 33 U.S.C. 1369 (b), "any interested person" may seek judicial review in the United States courts of appeals of various particular actions by the Administrator, including establishment of effluent standards and issuance of permits for discharge of pollutants.23 Where review could have been obtained under this provision, the action at issue may not be challenged in any subsequent civil or criminal proceeding for enforcement. 1369 (b) (2).These enforcement mechanisms, most of which have their counterpart under the MPRSA,24 are supplemented by the express citizen-suit provisions in 505 (a) of the FWPCA, 33 U.S.C. 1365 (a), and 105 (g) of the MPRSA, 33 U.S.C. 1415 (g). See nn. 9, 11, supra. These citizen-suit provisions authorize private persons to sue for injunctions to enforce these statutes.25 Plaintiffs invoking these provisions first must comply with specified procedures - which respondents here ignored - including in most cases 60 days' prior notice to potential defendants.In view of these elaborate enforcement provisions it cannot be assumed that Congress intended to authorize by implication additional judicial remedies for private citizens suing under MPRSA and FWPCA. As we stated in Transamerica Mortgage Advisors, supra, "it is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." 444 U.S., at 19. See also Touche Ross & Co. v. Redington, supra, at 571-574. In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.As noted above, the Court of Appeals avoided this inference. Discussing the FWPCA, it held that the existence of a citizen-suit provision in 505 (a) does not rule out implied forms of private enforcement of the Act. It arrived at this conclusion by asserting that Congress intended in 505 (a) to create a limited cause of action for "private attorneys general" - "non-injured member[s] of the public" suing to promote the general welfare rather than to redress an injury to their own welfare. 616 F.2d, at 1227. It went on to conclude:"A private party who is injured by the alleged violation, as these plaintiffs allege they were, has an alternate basis for suit under section 505 (e), 33 U.S.C. 1365 (e), and the general federal question jurisdiction of the Judicial Code, 28 U.S.C. 1331 (1976). Section 505 (e) is a savings clause that preserves all rights to enforce the Act or seek relief against the Administrator. Coupled with the general federal question jurisdiction it permits this suit to be brought by these parties." Ibid. (footnotes omitted) (emphasis added). There are at least three problems with this reasoning. First, the language of the saving clause on which the Court of Appeals relied, see n. 10, supra, is quite ambiguous concerning the intent of Congress to "preserve" remedies under the FWPCA itself. It merely states that nothing in the citizen-suit provision "shall restrict any right which any person ... may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief." It is doubtful that the phrase "any statute" includes the very statute in which this statement was contained.26 Moreover, the reasoning on which the Court of Appeals relied is flawed for another reason. It draws a distinction between "non-injured" plaintiffs who may bring citizen suits to enforce provisions of these Acts, and the "injured" plaintiffs in this litigation who claim a right to sue under the Acts, not by virtue of the citizen-suit provisions, but rather under the language of the saving clauses. In fact, it is clear that the citizen-suit provisions apply only to persons who can claim some sort of injury and there is, therefore, no reason to infer the existence of a separate right of action for "injured" plaintiffs. "Citizen" is defined in the citizen-suit section of the FWPCA as "a person or persons having an interest which is or may be adversely affected." 505 (g), 33 U.S.C. 1365 (g). It is clear from the Senate Conference Report that this phrase was intended by Congress to allow suits by all persons possessing standing under this Court's decision in Sierra Club v. Morton, . See S. Conf. Rep. No. 92-1236, p. 146 (1972). This broad category of potential plaintiffs necessarily includes both plaintiffs seeking to enforce these statutes as private attorneys general, whose injuries are "noneconomic" and probably noncompensable, and persons like respondents who assert that they have suffered tangible economic injuries because of statutory violations.Finally, the Court of Appeals failed to take account of the rest of the enforcement scheme expressly provided by Congress - including the opportunity for "any interested person" to seek judicial review of a number of EPA actions within 90 days, 509 (b), 33 U.S.C. 1369 (b). See supra, at 13-14.The Court of Appeals also applied its reasoning to the MPRSA. But here again we are persuaded that Congress evidenced no intent to authorize by implication private remedies under these Acts apart from the expressly authorized citizen suits. The relevant provisions in the MPRSA are in many respects almost identical to those of the FWPCA. 33 U.S.C. 1415 (g). Although they do not expressly limit citizen suits to those who have suffered some injury from a violation of the Act, we are not persuaded by this fact alone that Congress affirmatively intended to imply the existence of a parallel private remedy, after setting out expressly the manner in which private citizens can seek to enjoin violations.In Cort v. Ash, , the Court identified several factors that are relevant to the question of implied private remedies. These include the legislative history. See ibid. ("Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?"). This history does not lead to a contrary conclusion with respect to implied remedies under either Act. Indeed, the Report and debates provide affirmative support for the view that Congress intended the limitations imposed on citizen suits to apply to all private suits under these Acts.27 Thus, both the structure of the Acts and their legislative history lead us to conclude that Congress intended that private remedies in addition to those expressly provided should not be implied.28 Where, as here, Congress has made clear that implied private actions are not contemplated, the courts are not authorized to ignore this legislative judgment. BAlthough the parties have not suggested it, there remains a possible alternative source of express congressional authorization of private suits under these Acts. "Last Term, in Maine v. Thiboutot, , the Court construed 42 U.S.C. 1983 as authorizing suits to redress violations by state officials of rights created by federal statutes. Accordingly, it could be argued that respondents may sue the municipalities and sewerage boards among the petitioners29 under the FWPCA and MPRSA by virtue of a right of action created by 1983.It is appropriate to reach the question of the applicability of Maine v. Thiboutot to this setting, despite the failure of respondents to raise it here or below. This litigation began long before that decision. Moreover, if controlling, this argument would obviate the need to consider whether Congress intended to authorize private suits to enforce these particular federal statutes. The claim brought here arguably falls within the scope of Maine v. Thiboutot because it involves a suit by a private party claiming that a federal statute has been violated under color of state law, causing an injury. The Court, however, has recognized two exceptions to the application of 1983 to statutory violations. In Pennhurst State School and Hospital v. Halderman, , we remanded certain claims for a determination (i) whether Congress had foreclosed private enforcement of that statute in the enactment itself, and (ii) whether the statute at issue there was the kind that created enforceable "rights" under 1983. Id., at 28. In the present cases, because we find that Congress foreclosed a 1983 remedy under these Acts, we need not reach the second question whether these Acts created "rights, privileges, or immunities" within the meaning of 1983. When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under 1983. As JUSTICE STEWART, who later joined the majority in Maine v. Thiboutot, stated in Chapman v. Houston Welfare Rights Organization, , n. 2 (1979) (dissenting opinion), when "a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under 1983."30 As discussed above, the FWPCA and MPRSA do provide quite comprehensive enforcement mechanisms. It is hard to believe that Congress intended to preserve the 1983 right of action when it created so many specific statutory remedies, including the two citizen-suit provisions.31 See Chesapeake Bay Foundation v. Virginia State Water Control Board, 501 F. Supp. 821 (ED Va. 1980) (rejecting a 1983 action under the FWPCA against the Chairman of a State Water Board, with reasoning based on the comprehensiveness of the remedies provided and the federalism concerns raised). We therefore conclude that the existence of these express remedies demonstrates not only that Congress intended to foreclose implied private actions but also that it intended to supplant any remedy that otherwise would be available under 1983. Cf. Carlson v. Green, .IIIThe remaining two issues on which we granted certiorari relate to respondents' federal claims based on the federal common law of nuisance. The principal precedent on which these claims were based is Illinois v. Milwaukee, , where the Court found that the federal courts have jurisdiction to consider the federal common-law issues raised by a suit for injunctive relief by the State of Illinois against various Wisconsin municipalities and public sewerage commissions, involving the discharge of sewage into Lake Michigan. In these cases, we need not decide whether a cause of action may be brought under federal common law by a private plaintiff, seeking damages. The Court has now held that the federal common law of nuisance in the area of water pollution is entirely pre-empted by the more comprehensive scope of the FWPCA, which was completely revised soon after the decision in Illinois v. Milwaukee. See Milwaukee v. Illinois, .This decision disposes entirely of respondents' federal common-law claims, since there is no reason to suppose that the pre-emptive effect of the FWPCA is any less when pollution of coastal waters is at issue. To the extent that this litigation involves ocean waters not covered by the FWPCA, and regulated under the MPRSA, we see no cause for different treatment of the pre-emption question. The regulatory scheme of the MPRSA is no less comprehensive, with respect to ocean dumping, than are analogous provisions of the FWPCA.32 We therefore must dismiss the federal common-law claims because their underlying legal basis is now pre-empted by statute. As discussed above, we also dismiss the claims under the MPRSA and the FWPCA because respondents lack a right of action under those statutes. We vacate the judgment below with respect to these two claims, and remand for further proceedings. It is so ordered. |
1 | Title 42 U. S. C. §1437d(l)(6) provides that each "public housing agency shall utilize leases ... provid[ing] that ... any drug-related criminal activity on or off [federally assisted low-income housing] premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." Respondents are four such tenants of the Oakland Housing Authority (OHA). Paragraph 9(m) of their leases obligates them to "assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in ... any drug-related criminal activity on or near the premises." Pursuant to United States Department of Housing and Urban Development (HUD) regulations authorizing local public housing authorities to evict for drug-related activity even if the tenant did not know, could not foresee, or could not control behavior by other occupants, OHA instituted state-court eviction proceedings against respondents, alleging violations of lease paragraph 9(m) by a member of each tenant's household or a guest. Respondents filed federal actions against HUD, OHA, and OHA's director, arguing that §1437d(l)(6) does not require lease terms authorizing the eviction of so-called "innocent" tenants, and, in the alternative, that if it does, the statute is unconstitutional. The District Court's issuance of a preliminary injunction against OHA was affirmed by the en banc Ninth Circuit, which held that HUD's interpretation permitting the eviction of so-called "innocent" tenants is inconsistent with congressional intent and must be rejected under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843.Held: Section 1437d(l)(6)'s plain language unambiguously requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity. Congress' decision not to impose any qualification in the statute, combined with its use of the term "any" to modify "drug-related criminal activity," precludes any knowledge requirement. See United States v. Monsanto, 491 U. S. 600, 609. Because "any" has an expansive meaning — i.e., "one or some indiscriminately of whatever kind ," United States v. Gonzales, 520 U. S. 1, 5 — any drug-related activity engaged in by the specified persons is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about. The Ninth Circuit's ruling that "under the tenant's control" modifies not just "other person," but also "member of the tenant's household" and "guest," runs counter to basic grammar rules and would result in a nonsensical reading. Rather, HUD offers a convincing explanation for the grammatical imperative that "under the tenant's control" modifies only "other person": By "control," the statute means control in the sense that the tenant has permitted access to the premises. Implicit in the terms "household member" or "guest" is that access to the premises has been granted by the tenant. Section §1437d(l)(6)'s unambiguous text is reinforced by comparing it to 21 U. S. C. §881(a)(7), which subjects all leasehold interests to civil forfeiture when used to commit drug-related criminal activities, but expressly exempts tenants who had no knowledge of the activity, thereby demonstrating that Congress knows exactly how to provide an "innocent owner" defense. It did not provide one in §1437d(l)(6). Given that Congress has directly spoken to the precise question at issue, Chevron, supra, at 842, other considerations with which the Ninth Circuit attempted to bolster its holding are unavailing, including the legislative history, the erroneous conclusion that the plain reading of the statute leads to absurd results, the canon of constitutional avoidance, and reliance on inapposite decisions of this Court to cast doubt on §1437d(l)(6)'s constitutionality under the Due Process Clause. Pp. 4-11.237 F. 3d 1113, reversed and remanded. Rehnquist, C. J., delivered the opinion of the Court, in which all other Members joined, except Breyer, J., who took no part in the consideration or decision of the cases.DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, PETITIONER00-1770 v.PEARLIE RUCKER et al.OAKLAND HOUSING AUTHORITY, et al., PETITIONERS00-1781 v.PEARLIE RUCKER et al.on writs of certiorari to the united states court of appeals for the ninth circuit[March 26, 2002] Chief Justice Rehnquist delivered the opinion of the Court. With drug dealers "increasingly imposing a reign of terror on public and other federally assisted low-income housing tenants," Congress passed the Anti-Drug Abuse Act of 1988. §5122, 102 Stat. 4301, 42 U. S. C. §11901(3) (1994 ed.). The Act, as later amended, provides that each "public housing agency shall utilize leases which ... provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." 42 U. S. C. §1437d(l)(6) (1994 ed., Supp. V). Petitioners say that this statute requires lease terms that allow a local public housing authority to evict a tenant when a member of the tenant's household or a guest engages in drug-related criminal activity, regardless of whether the tenant knew, or had reason to know, of that activity. Respondents say it does not. We agree with petitioners. Respondents are four public housing tenants of the Oakland Housing Authority (OHA). Paragraph 9(m) of respondents' leases, tracking the language of §1437d(l)(6), obligates the tenants to "assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in ... [a]ny drug-related criminal activity on or near the premise[s]." App. 59. Respondents also signed an agreement stating that the tenant "understand[s] that if I or any member of my household or guests should violate this lease provision, my tenancy may be terminated and I may be evicted." Id., at 69. In late 1997 and early 1998, OHA instituted eviction proceedings in state court against respondents, alleging violations of this lease provision. The complaint alleged: (1) that the respective grandsons of respondents William Lee and Barbara Hill, both of whom were listed as residents on the leases, were caught in the apartment complex parking lot smoking marijuana; (2) that the daughter of respondent Pearlie Rucker, who resides with her and is listed on the lease as a resident, was found with cocaine and a crack cocaine pipe three blocks from Rucker's apartment;1 and (3) that on three instances within a 2-month period, respondent Herman Walker's caregiver and two others were found with cocaine in Walker's apartment. OHA had issued Walker notices of a lease violation on the first two occasions, before initiating the eviction action after the third violation. United States Department of Housing and Urban Development (HUD) regulations administering §1437d(l)(6) require lease terms authorizing evictions in these circumstances. The HUD regulations closely track the statutory language,2 and provide that "[i]n deciding to evict for criminal activity, the [public housing authority] shall have discretion to consider all of the circumstances of the case ... ." 24 CFR §966.4(l)(5)(i) (2001). The agency made clear that local public housing authorities' discretion to evict for drug-related activity includes those situations in which "[the] tenant did not know, could not foresee, or could not control behavior by other occupants of the unit." 56 Fed. Reg. 51560, 51567 (1991). After OHA initiated the eviction proceedings in state court, respondents commenced actions against HUD, OHA, and OHA's director in United States District Court. They challenged HUD's interpretation of the statute under the Administrative Procedure Act, 5 U. S. C. §706(2)(A), arguing that 42 U. S. C. §1437d(l)(6) does not require lease terms authorizing the eviction of so-called "innocent" tenants, and, in the alternative, that if it does, then the statute is unconstitutional.3 The District Court issued a preliminary injunction, enjoining OHA from "terminating the leases of tenants pursuant to paragraph 9(m) of the ` Tenant Lease' for drug-related criminal activity that does not occur within the tenant's apartment unit when the tenant did not know of and had no reason to know of, the drug-related criminal activity." App. to Pet. for Cert. in No. 01-770, pp. 165a-166a. A panel of the Court of Appeals reversed, holding that §1437d(l)(6) unambiguously permits the eviction of tenants who violate the lease provision, regardless of whether the tenant was personally aware of the drug activity, and that the statute is constitutional. See Rucker v. Davis, 203 F. 3d 627 (CA9 2000). An en banc panel of the Court of Appeals reversed and affirmed the District Court's grant of the preliminary injunction. See Rucker v. Davis, 237 F. 3d 1113 (2001). That court held that HUD's interpretation permitting the eviction of so-called "innocent" tenants "is inconsistent with Congressional intent and must be rejected" under the first step of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). 237 F. 3d, at 1119. We granted certiorari, 533 U. S. 976 (2001), 534 U. S. ___ (2001), and now reverse, holding that 42 U. S. C. §1437d(l)(6) unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity. That this is so seems evident from the plain language of the statute. It provides that "each public housing authority shall utilize leases which ... provide that ... any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." 42 U. S. C. §1437d(l)(6) (1994 ed., Supp. V). The en banc Court of Appeals thought the statute did not address "the level of personal knowledge or fault that is required for eviction." 237 F. 3d, at 1120. Yet Congress' decision not to impose any qualification in the statute, combined with its use of the term "any" to modify "drug-related criminal activity," precludes any knowledge requirement. See United States v. Monsanto, 491 U. S. 600, 609 (1989). As we have explained, "the word `any' has an expansive meaning, that is, `one or some indiscriminately of whatever kind.' " United States v. Gonzales, 520 U. S. 1, 5 (1997). Thus, any drug-related activity engaged in by the specified persons is grounds for termination, not just drug-related activity that the tenant knew, or should have known, about. The en banc Court of Appeals also thought it possible that "under the tenant's control" modifies not just "other person," but also "member of the tenant's household" and "guest." 237 F. 3d, at 1120. The court ultimately adopted this reading, concluding that the statute prohibits eviction where the tenant "for a lack of knowledge or other reason, could not realistically exercise control over the conduct of a household member or guest." Id., at 1126. But this interpretation runs counter to basic rules of grammar. The disjunctive "or" means that the qualification applies only to "other person." Indeed, the view that "under the tenant's control" modifies everything coming before it in the sentence would result in the nonsensical reading that the statute applies to "a public housing tenant ... under the tenant's control." HUD offers a convincing explanation for the grammatical imperative that "under the tenant's control" modifies only "other person": "by `control,' the statute means control in the sense that the tenant has permitted access to the premises." 66 Fed. Reg. 28781 (2001). Implicit in the terms "household member" or "guest" is that access to the premises has been granted by the tenant. Thus, the plain language of §1437d(l)(6) requires leases that grant public housing authorities the discretion to terminate tenancy without regard to the tenant's knowledge of the drug-related criminal activity. Comparing §1437d(l)(6) to a related statutory provision reinforces the unambiguous text. The civil forfeiture statute that makes all leasehold interests subject to forfeiture when used to commit drug-related criminal activities expressly exempts tenants who had no knowledge of the activity: "[N]o property shall be forfeited under this paragraph ... by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of the owner." 21 U. S. C. §881(a)(7) (1994 ed.). Because this forfeiture provision was amended in the same Anti-Drug Abuse Act of 1988 that created 42 U. S. C. §1437d(l)(6), the en banc Court of Appeals thought Congress "meant them to be read consistently" so that the knowledge requirement should be read into the eviction provision. 237 F. 3d, at 1121-1122. But the two sec-tions deal with distinctly different matters. The "innocent owner" defense for drug forfeiture cases was already in existence prior to 1988 as part of 21 U. S. C. §881(a)(7). All that Congress did in the 1988 Act was to add leasehold interests to the property interests that might be forfeited under the drug statute. And if such a forfeiture action were to be brought against a leasehold interest, it would be subject to the pre-existing "innocent owner" defense. But 42 U. S. C. §1437(d)(1)(6), with which we deal here, is a quite different measure. It is entirely reasonable to think that the Government, when seeking to transfer private property to itself in a forfeiture proceeding, should be subject to an "innocent owner defense," while it should not be when acting as a landlord in a public housing project. The forfeiture provision shows that Congress knew exactly how to provide an "innocent owner" defense. It did not provide one in §1437d(l)(6). The en banc Court of Appeals next resorted to legislative history. The Court of Appeals correctly recognized that reference to legislative history is inappropriate when the text of the statute is unambiguous. 237 F. 3d, at 1123. Given that the en banc Court of Appeals' finding of textual ambiguity is wrong, see supra, at 4-6, there is no need to consult legislative history.4 Nor was the en banc Court of Appeals correct in concluding that this plain reading of the statute leads to absurd results.5 The statute does not require the eviction of any tenant who violated the lease provision. Instead, it entrusts that decision to the local public housing authorities, who are in the best position to take account of, among other things, the degree to which the housing project suffers from "rampant drug-related or violent crime," 42 U. S. C. §11901(2) (1994 ed. and Supp. V), "the seriousness of the offending action," 66 Fed. Reg., at 28803, and "the extent to which the leaseholder has ... taken all reasonable steps to prevent or mitigate the offending action," ibid. It is not "absurd" that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity. Such "no-fault" eviction is a common "incident of tenant responsibility under normal landlord-tenant law and practice." 56 Fed. Reg., at 51567. Strict liability maximizes deterrence and eases enforcement difficulties. See Pacific Mut. Life Ins. Co. v. Haslip. And, of course, there is an obvious reason why Congress would have permitted local public housing authorities to conduct no-fault evictions: Regardless of knowledge, a tenant who "cannot control drug crime, or other criminal activities by a household member which threaten health or safety of other residents, is a threat to other residents and the project." 56 Fed. Reg., at 51567. With drugs leading to "murders, muggings, and other forms of violence against tenants," and to the "deterioration of the physical environment that requires substantial governmental expenditures," 42 U. S. C. §11901(4) (1994 ed., Supp. V), it was reasonable for Congress to permit no-fault evictions in order to "provide public and other federally assisted low-income housing that is decent, safe, and free from illegal drugs," §11901(1) (1994 ed.). In another effort to avoid the plain meaning of the statute, the en banc Court of Appeals invoked the canon of constitutional avoidance. But that canon "has no application in the absence of statutory ambiguity." United States v. Oakland Cannabis Buyers' Cooperative, 532 U. S. 483, 494 (2001). "Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, §1, ofthe Constitution." United States v. Albertini, 472 U. S. 675, 680 (1985). There are, moreover, no "serious constitutional doubts" about Congress' affording local public housing authorities the discretion to conduct no-fault evictions for drug-related crime. Reno v. Flores, 507 U. S. 292, 314, n. 9 (1993) (emphasis deleted). The en banc Court of Appeals held that HUD's interpretation "raise[s] serious questions under the Due Process Clause of the Fourteenth Amendment," because it permits "tenants to be deprived of their property interest without any relationship to individual wrongdoing." 237 F. 3d, at 1124-1125 (citing Scales v. United States, 367 U. S 203, 224-225 (1961); Southwestern Telegraph & Telephone Co. v. Danaher, 238 U. S. 482 (1915)). But both of these cases deal with the acts of government as sovereign. In Scales, the United States criminally charged the defendant with knowing membership in an organization that advocated the overthrow of the United States Government. In Danaher, an Arkansas statute forbade discrimination among customers of a telephone company. The situation in the present cases is entirely different. The government is not attempting to criminally punish or civilly regulate respondents as members of the general populace. It is instead acting as a landlord of property that it owns, invoking a clause in a lease to which respondents have agreed and which Congress has expressly required. Scales and Danaher cast no constitutional doubt on such actions. The Court of Appeals sought to bolster its discussion of constitutional doubt by pointing to the fact that respondents have a property interest in their leasehold interest, citing Greene v. Lindsey, 456 U. S. 444 (1982). This is undoubtedly true, and Greene held that an effort to deprive a tenant of such a right without proper notice violated the Due Process Clause of the Fourteenth Amendment. But, in the present cases, such deprivation will occur in the state court where OHA brought the unlawful detainer action against respondents. There is no indi-cation that notice has not been given by OHA in thepast, or that it will not be given in the future. Any individual factual disputes about whether the lease provision was actually violated can, of course, be resolved in these proceedings.6 We hold that "Congress has directly spoken to the precise question at issue." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S., at 842. Section 1437d(l)(6) requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity. Accordingly, the judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered. Justice Breyer took no part in the consideration or decision of these cases.FOOTNOTESFootnote * Together with No. 00-1781, Oakland Housing Authority et al. v. Rucker et al., also on certiorari to the same court.FOOTNOTESFootnote 1 In February 1998, OHA dismissed the unlawful detainer action against Rucker, after her daughter was incarcerated, and thus no longer posed a threat to other tenants.Footnote 2 The regulations require public housing authorities (PHAs) to impose a lease obligation on tenants:"To assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in:"(A) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the PHA's public housing premises by other residents or employees of the PHA, or"(B) Any drug-related criminal activity on or near such premises.Any criminal activity in violation of the preceding sentence shall be cause for termination of tenancy, and for eviction from the unit." 24 CFR §966.4(f)(12)(i) (2001).Footnote 3 Respondents Rucker and Walker also raised Americans with Disabilities Act claims that are not before this Court. And all of the respondents raised state-law claims against OHA that are not before this Court.Footnote 4 Even if it were appropriate to look at legislative history, it would not help respondents. The en banc Court of Appeals relied on two passages from a 1990 Senate Report on a proposed amendment to the eviction provision. 237 F. 3d, at 1123 (citing S. Rep. No. 101-316 (1990)). But this Report was commenting on language from a Senate version of the 1990 amendment, which was never enacted. The language in the Senate version, which would have imposed a different standard of cause for eviction for drug-related crimes than the unqualified language of §1437d(l)(6), see 136 Cong. Rec. 15991, 16012 (1990) (reproducing S. 566, 101st Cong., 2d Sess., §§521(f) and 714(a) (1990)), was rejected at Conference. See H. R. Conf. Rep. No. 101-943, p. 418 (1990). And, as the dissent from the en banc decision below explained, the passages may plausibly be read as a mere suggestion about how local public housing authorities should exercise the "wide discretion to evict tenants connected with drug-related criminal behavior" that the lease provision affords them. 237 F. 3d, at 1134 (Sneed, J., dissenting). Respondents also cite language from a House Report commenting on the Civil Asset Forfeiture Reform Act of 2000, codified at 18 U. S. C. §983. Brief for Respondents 15-16. For the reasons discussed supra at 6-7, legislative history concerning forfeiture provisions is not probative on the interpretation of §1437d(l)(6). A 1996 amendment to §1437d(l)(6), enacted five years after HUD issued its interpretation of the statute, supports our holding. The 1996 amendment expanded the reach of §1437d(l)(6), changing the language of the lease provision from applying to activity taking place "on or near" the public housing premises, to activity occurring "on or off" the public housing premises. See Housing Opportunity Program Extension Act of 1996, §9(a)(2), 110 Stat. 836. But Congress, "presumed to be aware" of HUD's interpretation rejecting a knowledge requirement, made no other change to the statute. Lorillard v. Pons, 434 U. S. 575, 580 (1978).Footnote 5 For the reasons discussed above, no-fault eviction, which is specifically authorized under §1437d(l)(6), does not violate §1437d(l)(2), which prohibits public housing authorities from including "unreasonable terms and conditions [in their leases]." In addition, the general statutory provision in the latter section cannot trump the clear language of the more specific §1437d(l)(6). See Green v. Bock Laundry Machine Co., 490 U. S. 504, 524-526 (1989).Footnote 6 The en banc Court of Appeals cited only the due process constitutional concern. Respondents raise two others: the First Amendment and the Excessive Fines Clause. We agree with Judge O'Scannlain, writing for the panel that reversed the injunction, that the statute does not raise substantial First Amendment or Excessive Fines Clause concerns. Lyng v. Automobile Workers, 485 U. S. 360 (1988), forecloses respondents claim that the eviction of unknowing tenants violates the First Amendment guarantee of freedom of association. See Rucker v. Davis, 203 F. 3d 627, 647 (2000). And termination of tenancy "is neither a cash nor an in-kind payment imposed by and payable to the government" and therefore is "not subject to analysis as an excessive fine." Id., at 648. |
0 | Petitioner McFadden was arrested and charged with distributing controlled substance analogues in violation of the federal Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act), which identifies a category of substances substantially similar to those listed on the federal controlled substances schedules, 21 U. S. C. §802(32)(A), and instructs courts to treat those analogues as schedule I controlled substances if they are intended for human consumption, §813. Arguing that he did not know the "bath salts" he was distributing were regulated as controlled substance analogues, McFadden sought an instruction that would have prevented the jury from finding him guilty unless it found that he knew the substances he distributed had chemical structures and effects on the central nervous system substantially similar to those of controlled substances. Instead, the District Court instructed the jury that it need only find that McFadden knowingly and intentionally distributed a substance with substantially similar effects on the central nervous system as a controlled substance and that he intended that substance to be consumed by humans. McFadden was convicted. The Fourth Circuit affirmed, holding that the Analogue Act's intent element required only proof that McFadden intended the substance to be consumed by humans.Held: When a controlled substance is an analogue, §841(a)(1) requires the Government to establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act. Pp. 4-11. (a) In addressing the treatment of controlled substance analogues under federal law, one must look to the CSA, which, as relevant here, makes it "unlawful for any person knowingly . . . to distribute . . . a controlled substance." §841(a)(1). The ordinary meaning of that provision requires a defendant to know only that the substance he is distributing is some unspecified substance listed on the federal drug schedules. Thus, the Government must show either that the defendant knew he was distributing a substance listed on the schedules, even if he did not know which substance it was, or that the defendant knew the identity of the substance he was distributing, even if he did not know it was listed on the schedules. Because the Analogue Act extends that framework to analogous substances, the CSA's mental-state requirement applies when the controlled substance is, in fact, an analogue. It follows that the Government must prove that a defendant knew that the substance he was distributing was "a controlled substance," even in prosecutions dealing with analogues. That knowledge requirement can be established in two ways: by evidence that a defendant knew that the substance he was distributing is controlled under the CSA or Analogue Act, regardless of whether he knew the substance's identity; or by evidence that the defendant knew the specific analogue he was distributing, even if he did not know its legal status as a controlled substance analogue. A defendant with knowledge of the features defining a substance as a controlled substance analogue, §802(32)(A), knows all of the facts that make his conduct illegal. Pp. 4-8. (b) The Fourth Circuit did not adhere to §813's command to treat a controlled substance analogue as a controlled substance listed in schedule I by applying §841(a)(1)'s mental-state requirement. Instead, it concluded that the only mental-state requirement for analogue prosecutions is the one in §813 — that an analogue be "intended for human consumption." That conclusion is inconsistent with the text and structure of the statutes. Neither the Government's nor McFadden's interpretation fares any better. The Government's contention that §841(a)(1)'s knowledge requirement as applied to analogues is satisfied if the defendant knew he was dealing with a substance regulated under some law ignores §841(a)(1)'s requirement that a defendant know he was dealing with "a controlled substance." That term includes only drugs listed on the federal drug schedules or treated as such by operation of the Analogue Act; it is not broad enough to include all substances regulated by any law. McFadden contends that a defendant must also know the substance's features that cause it to fall within the scope of the Analogue Act. But the key fact that brings a substance within the scope of the Analogue Act is that the substance is "controlled," and that fact can be established in the two ways previously identified. Staples v. United States, 511 U. S. 600, distinguished. Contrary to McFadden's submission, the canon of constitutional avoidance "has no application" in the interpretation of an unambiguous statute such as this one. Warger v. Shauers, 574 U. S. ___, ___. But even if the statute were ambiguous, the scienter requirement adopted here "alleviate[s] vagueness concerns" under this Court's precedents. Gonzales v. Carhart, 550 U. S. 124, 149. Pp. 8-10. (c) The Government argues that no rational jury could have concluded that McFadden was unaware that the substances he was distributing were controlled under the CSA or Analogue Act and that any error in the jury instruction was therefore harmless. The Fourth Circuit, which did not conduct a harmless-error analysis, is to consider that issue in the first instance. Pp. 10-11.753 F. 3d 432, vacated and remanded. Thomas, J., delivered the opinion of the Court, in which Scalia, Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed an opinion concurring in part and concurring in the judgment.Opinion of the Court 576 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 14-378STEPHEN DOMINICK McFADDEN, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the fourth circuit[June 18, 2015] Justice Thomas delivered the opinion of the Court. The Controlled Substance Analogue Enforcement Act of 1986 (Analogue Act) identifies a category of substances substantially similar to those listed on the federal controlled substance schedules, 21 U. S. C. §802(32)(A), and then instructs courts to treat those analogues, if intended for human consumption, as controlled substances listed on schedule I for purposes of federal law, §813. The Controlled Substances Act (CSA) in turn makes it unlawful knowingly to manufacture, distribute, or possess with intent to distribute controlled substances. §841(a)(1). The question presented in this case concerns the knowledge necessary for conviction under §841(a)(1) when the controlled substance at issue is in fact an analogue. We hold that §841(a)(1) requires the Government to establish that the defendant knew he was dealing with "a controlled substance." When the substance is an analogue, that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the Analogue Act, even if he did not know its identity. The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a " 'controlled substance analogue.' " §802(32)(A). Because the U. S. Court of Appeals for the Fourth Circuit approved a jury instruction that did not accurately convey this knowledge requirement, we vacate its judgment and remand for that court to determine whether the error was harmless.I In 2011, law enforcement officials in Charlottesville, Virginia, began investigating individuals at a Charlottesville video store for suspected distribution of "bath salts"--various recreational drugs used to produce effects similar to those of cocaine, methamphetamine, and other controlled substances. The owner of the store, Lois McDaniel, had been purchasing bath salts from petitioner Stephen McFadden for several months. McFadden had marketed the substances to her as "Alpha," "No Speed," "Speed," "Up," and "The New Up," and had compared them to cocaine and crystal meth. He had often sold those products with labels borrowing language from the Analogue Act, asserting that the contents were "not for human consumption" or stating that a particular product "does not contain any of the following compounds or analogues of the following compounds" and listing controlled substances. McDaniel purchased the bath salts for $15 per gram and resold them for $30 to $70 per gram. After investigators had conducted two controlled buys from the store and confronted McDaniel, she agreed to cooperate in their investigation by making five controlled buys from McFadden. The Government intercepted the substances McFadden sent when they arrived at the local FedEx store. Like the substances sold in the video store, these substances were white and off-white powders packaged in small plastic bags. Chemical analysis identified the powders as containing, among other substances, 3,4-Methylenedioxypyrovalerone, also known as MDPV; 3,4-Methylenedioxy-N-methylcathinone, also known as Meth-ylone or MDMC; and 4-Methyl-N-ethylcathinone, also known as 4-MEC. When ingested, each of these sub-stances is capable of producing effects on the central nervous system similar to those that controlled substances (such as cocaine, methamphetamine, and methcathinone) produce. A federal grand jury indicted McFadden on eight counts of distribution of controlled substance analogues and one count of conspiracy. At trial, McFadden argued that he did not know the substances he was distributing were regulated as controlled substances under the Analogue Act. He and the Government also disagreed about what knowledge was required for a conviction. The Government sought an instruction requiring only "[t]hat the defendant knowingly and intentionally distributed a mixture or substance . . . [t]hat . . . was a controlled substance analogue . . . with the intent that it be consumed by humans." App. 26-27. McFadden sought a more demanding instruction requiring that he "knew that the substances that he was distributing possessed the characteristics of controlled substance analogues," including their chemical structures and effects on the central nervous system. Id., at 29-30. The District Court compromised, instructing the jury that the statute required that "the defendant knowingly and intentionally distributed a mixture or substance that has" substantially similar effects on the nervous system as a controlled substance and "[t]hat the defendant intended for the mixture or substance to be consumed by humans." Id., at 40. The jury convicted McFadden on all nine counts. On appeal, McFadden insisted that the District Court "erred in refusing to instruct the jury that the government was required to prove that he knew, had a strong suspicion, or deliberately avoided knowledge that the [substances] possessed the characteristics of controlled substance analogues." 753 F. 3d 432, 443 (CA4 2014). Rejecting that argument, the Court of Appeals affirmed. Id., at 444, 446. Stating that it was bound by Circuit precedent, the court concluded that the "intent element [in the Act] requires [only] that the government prove that the defendant meant for the substance at issue to be consumed by humans." Id., at 441; see id., at 444. We granted a writ of certiorari, 574 U. S ___ (2015), and now vacate the judgment of the Court of Appeals and remand.IIA The Analogue Act requires a controlled substance analogue, if intended for human consumption, to be treated "as a controlled substance in schedule I" for purposes of federal law. §1201, 100 Stat. 3207-13, 21 U. S. C. §813. We therefore must turn first to the statute that addresses controlled substances, the CSA. The CSA makes it "unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." §401(a)(1), 84 Stat. 1260, 21 U. S. C. §841(a)(1). Under the most natural reading of this provision, the word "knowingly" applies not just to the statute's verbs but also to the object of those verbs--"a controlled substance." See Flores-Figueroa v. United States, 556 U. S. 646, 650 (2009); id., at 657 (Scalia, J., concurring in part and concurring in judgment); id., at 660-661 (Alito, J., concurring in part and concurring in judgment). When used as an indefinite article, "a" means "[s]ome undetermined or unspecified particular." Webster's New International Dictionary 1 (2d ed. 1954). And the CSA defines "controlled substance" as "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V." §802(6) (internal quotation marks omitted). The ordinary meaning of §841(a)(1) thus requires a defendant to know only that the substance he is dealing with is some unspecified substance listed on the federal drug schedules. The Courts of Appeals have recognized as much. See, e.g., United States v. Andino, 627 F. 3d 41, 45-46 (CA2 2010); United States v. Gamez-Gonzalez, 319 F. 3d 695, 699 (CA5 2003); United States v. Martinez, 301 F. 3d 860, 865 (CA7 2002). That knowledge requirement may be met by showing that the defendant knew he possessed a substance listed on the schedules, even if he did not know which substance it was. Take, for example, a defendant whose role in a larger drug organization is to distribute a white powder to customers. The defendant may know that the white powder is listed on the schedules even if he does not know precisely what substance it is. And if so, he would be guilty of knowingly distributing "a controlled substance." The knowledge requirement may also be met by showing that the defendant knew the identity of the substance he possessed. Take, for example, a defendant who knows he is distributing heroin but does not know that heroin is listed on the schedules, 21 CFR §1308.11 (2014). Because ignorance of the law is typically no defense to criminal prosecution, Bryan v. United States, 524 U. S. 184, 196 (1998), this defendant would also be guilty of knowingly distributing "a controlled substance."1 The Analogue Act extends the framework of the CSA to analogous substances. 21 U. S. C. §813. The Act defines a "controlled substance analogue" as a substance: "(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; "(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or "(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II." §802(32)(A).It further provides, "A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I." §813. The question in this case is how the mental state requirement under the CSA for knowingly manufacturing, distributing, or possessing with intent to distribute "a controlled substance" applies when the controlled substance is in fact an analogue. The answer begins with §841(a)(1), which expressly requires the Government to prove that a defendant knew he was dealing with "a controlled substance." The Analogue Act does not alter that provision, but rather instructs courts to treat controlled substance analogues "as . . . controlled substance[s] in schedule I." §813. Applying this statutory command, it follows that the Government must prove that a defendant knew that the substance with which he was dealing was "a controlled substance," even in prosecutions involving an analogue.2 That knowledge requirement can be established in two ways. First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance — that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act — regardless of whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue. The Analogue Act defines a controlled substance analogue by its features, as a substance "the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II"; "which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than" the effect of a controlled substance in schedule I or II; or which is represented or intended to have that effect with respect to a particular person. §802(32)(A). A defendant who possesses a substance with knowledge of those features knows all of the facts that make his conduct illegal, just as a defendant who knows he possesses heroin knows all of the facts that make his conduct illegal. A defendant need not know of the existence of the Analogue Act to know that he was dealing with "a controlled substance."B The Court of Appeals did not adhere to §813's command to treat a controlled substance analogue "as a controlled substance in schedule I," and, accordingly, it did not apply the mental-state requirement in §841(a)(1). Instead, it concluded that the only mental state requirement for prosecutions involving controlled substance analogues is the one in §813 — that the analogues be "intended for human consumption." 753 F. 3d, at 436 (citing United States v. Klecker, 348 F. 3d 69, 71 (CA4 2003)). Because that interpretation is inconsistent with the text and structure of the statutes, we decline to adopt it. Unsurprisingly, neither the Government nor McFadden defends the Court of Appeals' position. But their alternative interpretations fare no better. The Government agrees that the knowledge requirement in §841(a)(1) applies to prosecutions involving controlled substance analogues, yet contends that it is met if the "defendant knew he was dealing with an illegal or regulated substance" under some law. Brief for United States 15. Section 841(a)(1), however, requires that a defendant knew he was dealing with "a controlled substance." That term includes only those drugs listed on the federal drug schedules or treated as such by operation of the Analogue Act. §§802(6), 813. It is not broad enough to include all substances regulated by any law.3 For his part, McFadden contends that, in the context of analogues, knowledge of "a controlled substance" can only be established by knowledge of the characteristics that make a substance an "analogue" under the Act. In support of that argument, he relies heavily on our conclusion in Staples v. United States, 511 U. S. 600 (1994), that a statute making it " 'unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record,' " id., at 605 (quoting 26 U. S. C. §5861(d)), required proof that a defendant "knew of the features of his AR-15 that brought it within the scope of the Act," 511 U. S., at 619. McFadden reasons by analogy that a defendant convicted under §841(a)(1) must also know the features of the substance that brought it within the scope of the Analogue Act. But that position ignores an important textual distinction between §841(a)(1) and the statute at issue in Staples. The statute at issue in Staples defined "a firearm" by its physical features such as the length of its barrel and its capacity to shoot more than one shot with a single function of the trigger. Unlike those physical features that brought the firearm "within the scope of" that statute, the feature of a substance "that br[ings] it within the scope of" §841(a)(1) is the fact that it is " 'controlled.' " §802(6). Knowledge of that fact can be established in the two ways previously discussed: either by knowledge that a substance is listed or treated as listed by operation of the Analogue Act, §§802(6), 813, or by knowledge of the physical characteristics that give rise to that treatment. Supra, at 7. McFadden also invokes the canon of constitutional avoidance, arguing that we must adopt his interpretation of the statute lest it be rendered unconstitutionally vague. But that argument fails on two grounds. Under our precedents, this canon "is a tool for choosing between competing plausible interpretations of a provision." Warger v. Shauers, 574 U. S. ___, ___ (2014) (slip op., at 10) (internal quotation marks omitted). It "has no application" in the interpretation of an unambiguous statute such as this one. See ibid. (internal quotation marks omitted). Even if this statute were ambiguous, McFadden's argument would falter. Under our precedents, a scienter requirement in a statute "alleviate[s] vagueness concerns," "narrow[s] the scope of the [its] prohibition[,] and limit[s] prosecutorial discretion." Gonzales v. Carhart, 550 U. S. 124, 149, 150 (2007). The scienter requirement in this statute does not, as McFadden suggests, render the statute vague. More-over, to the extent McFadden suggests that the substantial similarity test for defining analogues is itself indeterminate, his proposed alternative scienter requirement would do nothing to cure that infirmity.III The District Court's instructions to the jury did not fully convey the mental state required by the Analogue Act. The jury was instructed only that McFadden had to "knowingly and intentionally distribut[e] a mixture or substance that has an actual, intended, or claimed stimulant, depressant, or hallucinogenic effect on the central nervous system" substantially similar to that of a controlled substance. App. 40. The Government contends that any error in the jury instructions was harmless because no rational jury could have concluded that McFadden was unaware that the substances he was distributing were controlled. We have recognized that even the omission of an element from a jury charge is subject to harmless-error analysis. Neder v. United States, 527 U. S. 1, 15 (1999). Because the Court of Appeals did not address that issue, we remand for that court to consider it in the first instance.* * * For the foregoing reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered.Opinion of Roberts, C. J. 576 U. S. ____ (2015)No. 14-378STEPHEN DOMINICK McFADDEN, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the fourth circuit[June 18, 2015] Chief Justice Roberts, concurring in part and concurring in the judgment. I join the Court's opinion, except to the extent that it says the Government can satisfy the mental state requirement of Section 841(a)(1) "by showing that the defendant knew the identity of the substance he possessed." Ante, at 5. Section 841(a)(1) makes it "unlawful for any person knowingly . . . to manufacture, distribute, or dispense . . . a controlled substance." As the Court points out, the word "knowingly" applies "not just to the statute's verbs, but also to the object of those verbs--'a controlled substance.' " Ante, at 4 (emphasis deleted). That suggests that a defendant needs to know more than the identity of the substance; he needs to know that the substance is controlled. See, e.g., United States v. Howard, 773 F. 3d 519, 526 (CA4 2014); United States v. Washington, 596 F. 3d 926, 944 (CA8 2010); United States v. Rogers, 387 F. 3d 925, 935 (CA7 2004). In cases involving well-known drugs such as heroin, a defendant's knowledge of the identity of the substance can be compelling evidence that he knows the substance is controlled. See United States v. Turcotte, 405 F. 3d 515, 525 (CA7 2005). But that is not necessarily true for lesser known drugs. A pop quiz for any reader who doubts the point: Two drugs — dextromethorphan and hydrocodone — are both used as cough suppressants. They are also both used as recreational drugs. Which one is a controlled substance?* The Court says that knowledge of the substance's iden-tity suffices because "ignorance of the law is typically no defense to criminal prosecution." Ante, at 5. I agree that is "typically" true. But when "there is a legal element in the definition of the offense," a person's lack of knowledge regarding that legal element can be a defense. Liparota v. United States, 471 U. S. 419, 425, n. 9 (1985). And here, there is arguably a legal element in Section 841(a)(1)--that the substance be "controlled." The analogy the Court drew in Liparota was to a charge of receipt of stolen property: It is no defense that the defendant did not know such receipt was illegal, but it is a defense that he did not know the property was stolen. Here, the argument goes, it is no defense that a defendant did not know it was illegal to possess a controlled substance, but it is a defense that he did not know the substance was controlled. Ultimately, the Court's statements on this issue are not necessary to its conclusion that the District Court's jury instructions "did not fully convey the mental state required by the Analogue Act." Ante, at 10. Those statements should therefore not be regarded as controlling if the issue arises in a future case.FOOTNOTESFootnote 1 The Courts of Appeals have held that, as with most mens rea requirements, the Government can prove the requisite mental state through either direct evidence or circumstantial evidence. Direct evidence could include, for example, past arrests that put a defendant on notice of the controlled status of a substance. United States v. Abdulle, 564 F. 3d 119, 127 (CA2 2009). Circumstantial evidence could include, for example, a defendant's concealment of his activities, evasive behavior with respect to law enforcement, knowledge that a particular substance produces a "high" similar to that produced by controlled substances, and knowledge that a particular substance is subject to seizure at customs. United States v. Ali, 735 F. 3d 176, 188-189 (CA4 2013). The Government presented such circumstantial evidence in this case, and neither party disputes that this was proper.Footnote 2 The Government has accepted for the purpose of this case that it must prove two elements to show that a substance is a controlled substance analogue under the definition in §802(32)(A): First, that an alleged analogue is substantially similar in chemical structure to a controlled substance, §802(32)(A)(i). Second, that an alleged analogue either has, or is represented or intended to have, a stimulant, depressant, hallucinogenic effect on the central nervous system that is substantially similar to that of a controlled substance, §§802(32)(A)(ii), (iii). Brief for United States 3. Because we need not decide in this case whether that interpretation is correct, we assume for the sake of argument that it is.Footnote 3 Although the Government must prove that a defendant knew that the substance in question was "a controlled substance" under federal law, the Government need not introduce direct evidence of such knowledge. As with prosecutions involving substances actually listed on the drug schedules, the Government may offer circumstantial evidence of that knowledge. See n. 1, supra. In such cases, it will be left to the trier of fact to determine whether the circumstantial evidence proves that the defendant knew that the substance was a controlled substance under the CSA or Analogue Act, as opposed to under any other federal or state laws.FOOTNOTESFootnote 1* The answer is hydrocodone. |
0 | Respondent was indicted in Federal District Court for transporting one Romero-Morales in violation of 8 U.S.C. 1324(a)(2), which prohibits the knowing transportation of an alien illegally in the United States who last entered the country within three years prior to the date of the transportation. Two other illegal aliens - who, with Romero-Morales, were passengers in the car being driven by respondent and were apprehended with respondent - were deported after an Assistant United States Attorney concluded that they possessed no evidence material to respondent's prosecution. Romero-Morales was detained to provide a nonhearsay basis for establishing that respondent had violated 1324(a)(2). The District Court denied respondent's motion to dismiss the indictment on the asserted ground that the deportation of the other passengers deprived him of the opportunity to interview them to determine whether they could aid in his defense and thus violated his Fifth Amendment right to due process and his Sixth Amendment right to compulsory process for obtaining witnesses. Following a bench trial respondent was convicted, but the Court of Appeals reversed, holding that although a constitutional violation occurs only when "the alien's testimony could conceivably benefit the defendant," the "conceivable benefit" test was satisfied - without requiring the defendant to explain what beneficial evidence would have been provided by the alien - whenever, as here, the deported alien was an eyewitness to the crime.Held: Respondent failed to establish a violation of the Fifth or Sixth Amendment. Pp. 863-874. (a) In cases like this, the Executive Branch's responsibility faithfully to execute Congress' immigration policy of prompt deportation of illegal aliens justifies deportation of illegal-alien witnesses upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution. In addition to satisfying such policy, the prompt deportation of such witnesses is justified by practical considerations, including the financial and physical burdens imposed upon the Government in detaining alien eyewitnesses. Pp. 863-866. (b) Respondent cannot establish a violation of the Sixth Amendment, which guarantees a criminal defendant the right to compulsory process for obtaining witnesses "in his favor," merely by showing that deportation of the aliens deprived him of their testimony. He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense. Cf. Washington v. Texas, . While a relaxation of the specificity required in showing materiality may be supported by the fact that, because the witnesses were deported, neither respondent nor his attorney had an opportunity to interview the witnesses to determine what favorable information they possessed, this does not afford a basis for wholly dispensing with a showing of materiality. Cf. Roviaro v. United States, . Moreover, respondent was present throughout the commission of the crime, and no one knew better than he what the deported witnesses said in his presence that might bear upon whether he knew that Romero-Morales was an illegal alien who had entered the country within the past three years. Pp. 867-871. (c) At least the same materiality requirement obtains with respect to a due process claim. In order to establish a denial of due process, the acts complained of must be of such quality as necessarily prevents a fair trial. Such an absence of fairness is not made out by the Government's deportation of the witnesses here unless there is some explanation of how their testimony would have been favorable and material. P. 872. (d) Sanctions against the Government are warranted for deportation of alien witnesses only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact. In this case, respondent made no effort to explain what material, favorable evidence the deported aliens would have provided for his defense. Pp. 872-874. 647 F.2d 72, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., post, p. 874, and O'CONNOR, J., post, p. 875, filed opinions concurring in the judgment. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 879.Carter G. Phillips argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, and Deputy Solicitor General Frey.Eugene G. Iredale argued the cause for respondent. With him on the brief were John J. Cleary and Craig E. Weinerman. JUSTICE REHNQUIST delivered the opinion of the Court.Respondent, a citizen of Mexico, was indicted in the United States District Court for the Southern District of California for transporting one Romero-Morales in violation of 8 U.S.C. 1324(a)(2). That section generally prohibits the knowing transportation of an alien illegally in the United States who last entered the country within three years prior to the date of the transportation.1 Respondent was found guilty after a bench trial, but his conviction was overturned by the United States Court of Appeals for the Ninth Circuit. That court held that the action of the Government in deporting two aliens other than Romero-Morales violated respondent's right under the Sixth Amendment to the United States Constitution to compulsory process, and his right under the Fifth Amendment to due process of law. We granted certiorari in order to review the Court of Appeals' application of these constitutional provisions to this case, ,2 and we now reverse.IRespondent entered the United States illegally on March 23, 1980, and was taken by smugglers to a house in Escondido, Cal. Six days later, in exchange for his not having to pay the smugglers for bringing him across the border, respondent agreed to drive himself and five other passengers to Los Angeles. When the car which respondent was driving approached the Border Patrol checkpoint at Temecula, agents noticed the five passengers lying down inside the car and motioned to respondent to stop. Respondent accelerated through the checkpoint and was chased at high speed for approximately one mile before stopping the car and fleeing on foot along with the five passengers. Three of the passengers and respondent were apprehended by the Border Patrol agents.Following their arrest, respondent and the other passengers were interviewed by criminal investigators. Respondent admitted his illegal entry into the country and explained his reason for not stopping at the checkpoint: "I was bringing the people [and] I already knew I had had it - too late - it was done." App. 27. The three passengers also admitted that they were illegally in the country and each identified respondent as the driver of the car. Id., at 66. An Assistant United States Attorney concluded that the passengers possessed no evidence material to the prosecution or defense of respondent for transporting illegal aliens, and two of the passengers were deported to Mexico. The third, Enrique Romero-Morales, was detained to provide a nonhearsay basis for establishing that respondent had transported an illegal alien in violation of 8 U.S.C. 1324(a)(2).Respondent moved in the District Court to dismiss the indictment, claiming that the Government's deportation of the two passengers other than Romero-Morales violated his Fifth Amendment right to due process of law and his Sixth Amendment right to compulsory process for obtaining favorable witnesses. He claimed that the deportation had deprived him of the opportunity to interview the two remaining passengers to determine whether they could aid in his defense. Although he had been in their presence throughout the allegedly criminal activity, respondent made no attempt to explain how the deported passengers could assist him in proving that he did not know that Romero-Morales was an illegal alien who had last entered the United States within the preceding three years. At least one evidentiary hearing was held on respondent's motion, at which Romero-Morales testified that he had not spoken to respondent during the entire time that they were together. At the same hearing the Government offered, without obtaining agreement by respondent, to stipulate that none of the passengers in the car told respondent that they were in the United States illegally. The District Court denied respondent's motion and, following a bench trial on stipulated evidence, found respondent guilty as charged.3 The Court of Appeals reversed the conviction. The court relied upon the rule, first stated in United States v. Mendez-Rodriguez, 450 F.2d 1 (CA9 1971), that the Government violates the Fifth and Sixth Amendments when it deports alien witnesses before defense counsel has an opportunity to interview them. 647 F.2d 72, 73-75 (1981). Although it stated that a constitutional violation occurs only when "the alien's testimony could conceivably benefit the defendant," id., at 74, the court's application of the "conceivable benefit" test demonstrated that the test will be satisfied whenever the deported aliens were eyewitnesses to the crime.4 Respondent's failure to explain what beneficial evidence would have been provided by the two passengers was thus inapposite, for "the deported aliens were eyewitnesses to, and active participants in, the crime charged, thus establishing a strong possibility that they could have provided material and relevant information concerning the events constituting the crime." Id., at 75. Accordingly, the Court of Appeals held that respondent's motion to dismiss the indictment should have been granted by the District Court.IIWe think that the decision of the Court of Appeals in this case, and some of the additional arguments made in support of it by respondent, misapprehend the varied nature of the duties assigned to the Executive Branch by Congress. The Constitution imposes on the President the duty to "take Care that the Laws be faithfully executed." U.S. Const., Art. II, 3. One of the duties of the Executive Branch, and a vitally important one, is that of apprehending and obtaining the conviction of those who have violated criminal statutes of the United States. The prosecution of respondent is of course one example of the Executive's effort to discharge that responsibility. But the Government is charged with a dual responsibility when confronted with incidents such as that which resulted in the apprehension of respondent. One or more of the persons in the car may have violated the criminal laws enacted by Congress; but some or all of the persons in the car may also be subject to deportation as provided by Congress. The Government may, therefore, find itself confronted with the obligation of prosecuting persons in the position of respondent on criminal charges, and at the same time obligated to deport other persons involved in the event in order to carry out the immigration policies that Congress has enacted.The power to regulate immigration - an attribute of sovereignty essential to the preservation of any nation - has been entrusted by the Constitution to the political branches of the Federal Government. See Mathews v. Diaz, . "The Court without exception has sustained Congress' `plenary power to make rules for the admission of aliens.'" Kleindienst v. Mandel, (quoting Boutilier v. INS, . In exercising this power, Congress has adopted a policy of apprehending illegal aliens at or near the border and deporting them promptly. Border Patrol agents are authorized by statute to make warrantless arrests of aliens suspected of "attempting to enter the United States in violation of ... law," 8 U.S.C. 1357(a)(2), and are directed to examine them without "unnecessary delay" to determine whether "there is prima facie evidence establishing" their attempted illegal entry. 8 CFR 287.3 (1982). Aliens against whom such evidence exists may be granted immediate voluntary departure from the country. See 8 U.S.C. 1252(b); 8 CFR 242.5(a)(2)(i) (1982). Thus, Congress has determined that prompt deportation, such as occurred in this case, constitutes the most effective method for curbing the enormous flow of illegal aliens across our southern border.5 In addition to satisfying immigration policy, the prompt deportation of alien witnesses who are determined by the Government to possess no material evidence relevant to a criminal trial is justified by several practical considerations. During fiscal year 1979, almost one-half of the more than 11,000 inmates incarcerated in federal facilities in the Southern District of California were material witnesses who had neither been charged with nor convicted of a criminal offense. App. 18. The average period of detention for such witnesses exceeded 5 days, and many were detained for more than 20 days. Id., at 20. The resulting overcrowded conditions forced the Government to house many detainees in federal facilities located outside the Southern District of California or in state-operated jails. Id., at 21-22; Brief for United States 19. Thus, the detention of alien eyewitnesses imposes substantial financial and physical burdens upon the Government, not to mention the human cost to potential witnesses who are incarcerated though charged with no crime. In addition, the rule adopted by the Court of Appeals significantly constrains the Government's prosecutorial discretion. As explained by the United States:"Because of budget limitations and the unavailability of adequate detention facilities, it is simply impossible as a practical matter to prosecute many cases involving the transportation or harboring of large numbers of illegal aliens, where all the aliens must be incarcerated for a substantial period of time to avoid dismissal of the charges, even though the prosecution's case may be overwhelming. As a consequence, many valid and appropriate prosecutions are foregone." Id., at 21-22. It simply will not do, therefore, to minimize the Government's dilemma in cases like this with statements such as "[t]he prosecution may not deny access to a witness by hiding him out. See Freeman v. State of Georgia, 599 F.2d 65 (5th Cir. 1979) (police detective concealed location of witness)." Brief for Respondent 35. Congress' immigration policy and the practical considerations discussed above demonstrate that the Government had good reason to deport respondent's passengers once it concluded that they possessed no evidence relevant to the prosecution or the defense of respondent's criminal charge. No onus, in the sense of "hiding out" or "concealing" witnesses, attached to the Government by reason of its discharge of the obligations imposed upon it by Congress; its exercise of these manifold responsibilities is not to be judged by standards which might be appropriate if the Government's only responsibility were to prosecute criminal offenses.IIIViewing the Government's conduct in this light, we turn to the evaluation of the Court of Appeals' "conceivable benefit" test. There seems to us to be little doubt that this test is a virtual "per se" rule which requires little if any showing on the part of the accused defendant that the testimony of the absent witness would have been either favorable or material. As we said with respect to a similar test - phrased in terms of information "that might affect the jury's verdict" - for determining when a prosecutor must disclose information to a criminal defendant:"If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of routine practice." United States v. Agurs, . So it is with the "conceivable benefit" test. Given the vagaries of a typical jury trial, it would be a bold statement indeed to say that the testimony of any missing witness could not have "conceivably benefited" the defense. To us, the number of situations which will satisfy this test is limited only by the imaginations of judges or defense counsel.6 AThe only recent decision of this Court dealing with the right to compulsory process guaranteed by the Sixth Amendment suggests that more than the mere absence of testimony is necessary to establish a violation of the right. See Washington v. Texas, . Indeed, the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him "compulsory process for obtaining witnesses in his favor." U.S. Const., Amdt. 6 (emphasis added). In Washington, this Court found a violation of this Clause of the Sixth Amendment when the defendant was arbitrarily deprived of "testimony [that] would have been relevant and material, and ... vital to the defense." 388 U.S., at 16 (emphasis added). This language suggests that respondent cannot establish a violation of his constitutional right to compulsory process merely by showing that deportation of the passengers deprived him of their testimony. He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense.7 When we turn from Washington to other cases in what might loosely be called the area of constitutionally guaranteed access to evidence, we find Washington's intimation of a materiality requirement more than borne out. Brady v. Maryland, , held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., at 87. This materiality requirement was emphasized in Moore v. Illinois, , where we stated that a defendant will prevail upon a Brady claim "where the evidence is favorable to the accused and is material either to guilt or to punishment." Id., at 794. And in United States v. Agurs, supra, we noted that "[a] fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." Id., at 104. We further explained: "The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt... . This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." Id., at 112-113 (footnotes omitted). Similarly, when the Government has been responsible for delay resulting in a loss of evidence to the accused, we have recognized a constitutional violation only when loss of the evidence prejudiced the defense. In United States v. Marion, , for example, the Court held that pre-indictment delay claims were governed by the Due Process Clause of the Fifth Amendment, not by the speedy-trial guarantee of the Sixth Amendment. Elaborating on the nature of the guarantee provided by the Due Process Clause in such cases, the Court emphasized the requirement of materiality:"Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them." Id., at 325. Five Terms later, in United States v. Lovasco, , we summarized this aspect of Marion:"Thus Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Id., at 790. The same "prejudice" requirement has been applied to cases of postindictment delay. In Barker v. Wingo, , the Court set forth several factors to be considered in determining whether an accused has been denied his Sixth Amendment right to a speedy trial by the Government's pretrial delay. One of the four factors identified by the Court, and a factor more fully discussed in United States v. MacDonald, , was whether there had been any "prejudice to the defendant from the delay." Id., at 858. Although the Court recognized that prejudice may take the form of "`oppressive pretrial incarceration'" or "`anxiety and concern of the accused,'" the "`most serious'" consideration, analogous to considerations in this case, was impairment of the ability to mount a defense. See ibid. (quoting Barker v. Wingo, supra, at 532). Thus, other interests protected by the Sixth Amendment look to the degree of prejudice incurred by a defendant as a result of governmental action or inaction. The principal difference between these cases in related areas of the law and the present case is that respondent simply had no access to the witnesses who were deported after he was criminally charged. Respondent contends that requiring him to show materiality is unreasonable in light of the fact that neither he nor his attorney was afforded an opportunity to interview the deported witnesses to determine what favorable information they possessed. But while this difference may well support a relaxation of the specificity required in showing materiality, we do not think that it affords the basis for wholly dispensing with such a showing.The closest case in point is Roviaro v. United States, . While Roviaro was not decided on the basis of constitutional claims, its subsequent affirmation in McCray v. Illinois, , where both due process and confrontation claims were considered by the Court, suggests that Roviaro would not have been decided differently if those claims had actually been called to the Court's attention.Roviaro deals with the obligation of the prosecution to disclose to the defendant the name of an informer-eyewitness, and was cast in terms of the traditional governmental privilege to refuse disclosure of such an identity. The Roviaro Court held that the informer's identity had to be disclosed, but only after it concluded that the informer's testimony would be highly relevant: "This is a case where the Government's informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that [the informer] denied knowing petitioner or ever having seen him before. We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure." 353 U.S., at 64-65."What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity," McCray v. Illinois, supra, at 311, despite the fact that criminal defendants otherwise have no access to such informers to determine what relevant information they possess. Roviaro supports the conclusion that while a defendant who has not had an opportunity to interview a witness may face a difficult task in making a showing of materiality, the task is not an impossible one. In such circumstances it is of course not possible to make any avowal of how a witness may testify. But the events to which a witness might testify, and the relevance of those events to the crime charged, may well demonstrate either the presence or absence of the required materiality. In addition, it should be remembered that respondent was present throughout the commission of this crime. No one knows better than he what the deported witnesses actually said to him, or in his presence, that might bear upon whether he knew that Romero-Morales was an illegal alien who had entered the country within the past three years. And, in light of the actual charge made in the indictment, it was only the status of Romero-Morales, of course, remained fully available for examination by the defendant and his attorney. We thus conclude that the respondent can establish no Sixth Amendment violation without making some plausible explanation of the assistance he would have received from the testimony of the deported witnesses.8 BHaving borrowed much of our reasoning with respect to the Compulsory Process Clause of the Sixth Amendment from cases involving the Due Process Clause of the Fifth Amendment, we have little difficulty holding that at least the same materiality requirement obtains with respect to a due process claim. Due process guarantees that a criminal defendant will be treated with "that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." Lisenba v. California, . In another setting, we recognized that Jencks Act violations, wherein the Government withholds evidence required by statute to be disclosed, rise to the level of due process violations only when they so infect the fairness of the trial as to make it "more a spectacle or trial by ordeal than a disciplined contest." United States v. Augenblick, (citations omitted). Such an absence of fairness is not made out by the Government's deportation of the witnesses in this case unless there is some explanation of how their testimony would have been favorable and material. See United States v. Lovasco, ; United States v. Marion, .IVTo summarize, the responsibility of the Executive Branch faithfully to execute the immigration policy adopted by Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution. The mere fact that the Government deports such witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. A violation of these provisions requires some showing that the evidence lost would be both material and favorable to the defense.Because prompt deportation deprives the defendant of an opportunity to interview the witnesses to determine precisely what favorable evidence they possess, however, the defendant cannot be expected to render a detailed description of their lost testimony. But this does not, as the Court of Appeals concluded, relieve the defendant of the duty to make some showing of materiality. Sanctions may be imposed on the Government for deporting witnesses only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses. In some cases such a showing may be based upon agreed facts, and will be in the nature of a legal argument rather than a submission of additional facts. In other cases the criminal defendant may advance additional facts, either consistent with facts already known to the court or accompanied by a reasonable explanation for their inconsistency with such facts, with a view to persuading the court that the testimony of a deported witness would have been material and favorable to his defense.9 Because in the latter situation the explanation of materiality is testimonial in nature, and constitutes evidence of the prejudice incurred as a result of the deportation, it should be verified by oath or affirmation of either the defendant or his attorney. See Fed. Rule Evid. 603; Fed. Rule Crim. Proc. 47.As in other cases concerning the loss of material evidence, sanctions will be warranted for deportation of alien witnesses only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact. See Giglio v. United States, . In making such a determination, courts should afford some leeway for the fact that the defendant necessarily proffers a description of the material evidence rather than the evidence itself. Because determinations of materiality are often best made in light of all of the evidence adduced at trial, judges may wish to defer ruling on motions until after the presentation of evidence.10 In this case the respondent made no effort to explain what material, favorable evidence the deported passengers would have provided for his defense. Under the principles set forth today, he therefore failed to establish a violation of the Fifth or Sixth Amendment, and the District Court did not err in denying his motion to dismiss the indictment. Accordingly, the judgment of the Court of Appeals is Reversed. |
7 | Petitioner sued the United States under the Public Vessels Act to recover damages resulting from a collision between its ship and a government dredge. The United States filed a cross-libel, and the District Court held that the collision had occurred through the mutual fault of both vessels and that, under the settled admiralty rule, each party was entitled to recover from the other one-half of its provable damages and court costs. A government employee aboard the dredge had sustained personal injuries in the collision, for which he received compensation under the Federal Employees' Compensation Act. He sued petitioner for damages, obtained a settlement of $16,000 and repaid to the United States the amount he had received under the Compensation Act. Held: Section 7 (b) of the Federal Employees' Compensation Act, which provides that the liability thereunder "shall be exclusive, and in place, of all other liability of the United States" to the employee and his representatives and dependents, does not limit the admiralty rule of divided damages in mutual fault collisions, and the amount paid by petitioner to the government employee should be included in computing the amount of petitioner's recovery from the Government. Pp. 597-604. 294 F.2d 179, reversed.Henry R. Rolph argued the cause for petitioner. With him on the briefs was Chalmers G. Graham.Anthony L. Mondello argued the cause for the United States. With him on the brief were Solicitor General Cox, Acting Assistant Attorney General Guilfoyle and John G. Laughlin, Jr.MR. JUSTICE STEWART delivered the opinion of the Court.In September of 1955 the United States Army Dredge Pacific and the petitioner's vessel F. E. Weyerhaeuser were in a collision off the Oregon coast. To recover for its resultant damages the petitioner brought this action against the United States under the Public Vessels Act.1 A cross-libel was filed, and the District Court after a hearing found that the collision had occurred through the mutual fault of both vessels. Applying the settled admiralty rule of divided damages, the court held that each party was entitled to recover from the other one-half of its provable damages and court costs. 174 F. Supp. 663. supplemented at 178 F. Supp. 496.A United States Civil Service employee aboard the Pacific, Reynold E. Ostrom, had sustained personal injuries in the collision. He had received compensation for these injuries under the Federal Employees' Compensation Act,2 and had then filed a suit against the petitioner to recover damages. That lawsuit was subsequently settled by the payment to Ostrom of $16,000 by the petitioner, and Ostrom then repaid to the United States the amount which had previously been awarded him as statutory compensation, as required by the Compensation Act.3 The United States objected to the inclusion, as part of the petitioner's damages from the collision, of the $16,000 which the petitioner had paid to Ostrom. The Government stipulated that the amount was a reasonable settlement of Ostrom's claim, and agreed that such a payment would ordinarily be includible as a proper item of the damages to be divided pursuant to the accepted admiralty formula. The Government took the position, however, that with respect to the amount paid Ostrom the established admiralty rule has been qualified by 7 (b) of the Federal Employees' Compensation Act, which provides that the liability of the United States under the Act for"injury or death of an employee shall be exclusive, and in place, of all other liability of the United States or such instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States ... on account of such injury or death, in any direct judicial proceedings in a civil action or in admiralty, or by proceedings, whether administrative or judicial, under any other workmen's compensation law or under any Federal tort liability statute ... ."4 The District Court rejected the Government's argument and entered a decree which recognized the amount paid by the petitioner to Ostrom as part of the petitioner's provable damages from the collision. The Court of Appeals reversed, remanding the case to the District Court with directions to recompute the damages after excluding the Ostrom settlement, holding that the exclusive liability provision of 7 (b) of the Compensation Act precluded any liability of the United States on account of the petitioner's payment for Ostrom's personal injuries. 294 F.2d 179.We granted certiorari to consider the single question whether the historic admiralty rule of divided damages in mutual fault collisions has been qualified, as the Court of Appeals held, by the exclusive liability provision of the federal compensation statute. . For the reasons stated in this opinion, we hold that this provision of the compensation statute does not so limit the admiralty rule, and we accordingly reverse the judgment of the Court of Appeals.As this Court has pointed out, the Public Vessels Act "was intended to impose on the United States the same liability (apart from seizure or arrest under a libel in rem) as is imposed by the admiralty law on the private shipowner ... ." Canadian Aviator, Ltd., v. United States, . And there can be no question that a private shipowner in a case such as this would be liable for half of all the petitioner's provable damages, including the $16,000 paid to Ostrom. The Government argues, however, that the "plain words" of the federal compensation statute nevertheless operate to limit the Government's liability in this case.Section 7 (b) provides that the compensation remedy shall be exclusive with respect to the Government's liability "to the employee, his legal representative, spouse, dependents, next of kin, and anyone otherwise entitled to recover damages from the United States ... ." The Government points out that the general words "anyone otherwise entitled to recover damages" literally would cover a shipowner entitled to recover divided damages after a mutual fault collision. But the general language upon which the Government relies follows explicit enumeration of specific categories: employees, their representatives, and their dependents. Under the traditional rule of statutory construction which counsels against giving to general words a meaning totally unrelated to the more specific terms of a statute, we think the meaning of the statutory language is far from "plain."The legislative history of the Federal Employees' Compensation Act, originally passed in 1916, shows that the concern of Congress was to provide federal employees a swift, economical, and assured right of compensation for injuries arising out of the employment relationship, regardless of the negligence of the employee or his fellow servants, or the lack of fault on the part of the United States. The purpose of 7 (b), added in 1949, was to establish that, as between the Government on the one hand and its employees and their representatives or dependents on the other, the statutory remedy was to be exclusive. There is no evidence whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law affecting the mutual rights and liabilities of private shipowners in collision cases.5 Section 5 of the Longshoremen's and Harbor Workers' Compensation Act is nearly identical to 7 (b) of the Federal Employees' Compensation Act in providing that "[t]he liability of an employer ... shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ... ."6 In Ryan Co. v. Pan-Atlantic Corp., , it was held that despite this exclusive liability provision, a shipowner was entitled to reimbursement from a longshoreman's employer for damages recovered against the shipowner by the longshoreman injured by the employer's negligence. The Court's decision in Ryan was based upon the existence of a contractual relationship between the shipowner and the employer. In a series of subsequent cases, the same result was reached, although the contractual relationship was considerably more attenuated. Weyerhaeuser S. S. Co. v. Nacirema Co., ; Crumady v. The J. H. Fisser, ; Waterman Co. v. Dugan & McNamara, .In the present case there was no contractual relationship between the United States and the petitioner, governing their correlative rights and duties. There is involved here, instead, a rule of admiralty law which, for more than 100 years, has governed with at least equal clarity the correlative rights and duties of two shipowners whose vessels have been involved in a collision in which both were at fault. The Schooner Catharine v. Dickinson, 17 How. 170, 177; The North Star, . See Halcyon Lines v. Haenn Ship Corp., . Long ago this Court held that the full scope of the divided damages rule must prevail over a statutory provision which, like the one involved in the present case, limited the liability of one of the shipowners with respect to an element of damages incurred by the other in a mutual fault collision. The Chattahoochee, . The statute at issue in that case was the Harter Act, which categorically provides that cargo cannot collect directly from the carrying vessel for damages as a result of faults in navigation.7 The Court held that despite this statutory provision, the carrying vessel must share, according to the divided damages rule, damages sustained by the noncarrying vessel resulting from liability to the carrying vessel's cargo. See also Aktslsk. Cuzco v. The Sucarseco, .In this case, as in The Chattahoochee, we hold that the scope of the divided damages rule in mutual fault collisions is unaffected by a statute enacted to limit the liability of one of the shipowners to unrelated third parties. The judgment is Reversed. |
7 | In Massachusetts v. EPA, 549 U. S. 497, this Court held that the Clean Air Act authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases, and that the Environmental Protection Agency (EPA) had misread that Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. In response, EPA commenced a rulemaking under §111 of the Act, 42 U. S. C. §7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a final rule by May 2012. The lawsuits considered here began well before EPA initiated efforts to regulate greenhouse gases. Two groups of plaintiffs, respondents here, filed separate complaints in a Federal District Court against the same five major electric power companies, petitioners here. One group of plaintiffs included eight States and New York City; the second joined three nonprofit land trusts. According to the complaint, the defendants are the largest emitters of carbon dioxide in the Nation. By contributing to global warming, the plaintiffs asserted, the defendants' emissions substantially and unreasonably interfered with public rights, in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. All plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The District Court dismissed both suits as presenting nonjusticiable political questions, but the Second Circuit reversed. On the threshold questions, the Circuit held that the suits were not barred by the political question doctrine and that the plaintiffs had adequately alleged Article III standing. On the merits, the court held that the plaintiffs had stated a claim under the "federal common law of nuisance," relying on this Court's decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry, see, e.g., Illinois v. Milwaukee, 406 U. S. 91, 93 (Milwaukee I). The court further determined that the Clean Air Act did not "displace" federal common law. Held: 1. The Second Circuit's exercise of jurisdiction is affirmed by an equally divided Court. P. 6. 2. The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Pp. 6-16. (a) Since Erie R. Co. v. Tompkins, 304 U. S. 64, 78, recognized that there "is no federal general common law," a new federal common law has emerged for subjects of national concern. When dealing "with air and water in their ambient or interstate aspects, there is a federal common law." Milwaukee I, 406 U. S., at 103. Decisions of this Court predating Erie, but compatible with the emerging distinction between general common law and the new federal common law, have approved federal common-law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. Illinois, 180 U. S. 208, 241-243. The plaintiffs contend that their right to maintain this suit follows from such cases. But recognition that a subject is meet for federal law governance does not necessarily mean that federal courts should create the controlling law. The Court need not address the question whether, absent the Clean Air Act and the EPA actions it authorizes, the plaintiffs could state a federal common-law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions. Pp. 6-9. (b) "[W]hen Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of law-making by federal courts disappears." Milwaukee v. Illinois, 451 U. S. 304, 314 (Milwaukee II). Legislative displacement of federal common law does not require the "same sort of evidence of a clear and manifest [congressional] purpose" demanded for preemption of state law. Id., at 317. Rather, the test is simply whether the statute "speak[s] directly to [the] question" at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625. Here, Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Clean Air Act. 549 U. S., at 528-529. And it is equally plain that the Act "speaks directly" to emissions of carbon dioxide from the defendants' plants. The Act directs EPA to establish emissions standards for categories of stationary sources that, "in [the Administrator's] judgment," "caus[e], or contribut[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." §7411(b)(1)(A). Once EPA lists a category, it must establish performance standards for emission of pollutants from new or modified sources within that category, §7411(b)(1)(B), and, most relevant here, must regulate existing sources within the same category, §7411(d). The Act also provides multiple avenues for enforcement. If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA's response will be reviewable in federal court. See §7607(b)(1). The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants — the same relief the plaintiffs seek by invoking federal common law. There is no room for a parallel track. Pp. 9-11. (c) The Court rejects the plaintiffs' argument, and the Second Circuit's holding, that federal common law is not displaced until EPA actually exercises its regulatory authority by setting emissions standards for the defendants' plants. The relevant question for displacement purposes is "whether the field has been occupied, not whether it has been occupied in a particular manner." Milwaukee II, 451 U. S., at 324. The Clean Air Act is no less an exercise of the Legislature's "considered judgment" concerning air pollution regulation because it permits emissions until EPA acts. The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation displaces federal common law. If the plaintiffs in this case are dissatisfied with the outcome of EPA's forthcoming rulemaking, their recourse is to seek Court of Appeals review, and, ultimately, to petition for certiorari. The Act's prescribed order of decisionmaking — first by the expert agency, and then by federal judges — is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regulation in a particular greenhouse gas-producing sector requires informed assessment of competing interests. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. The expert agency is surely better equipped to do the job than federal judges, who lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. The plaintiffs' proposal to have federal judges determine, in the first instance, what amount of carbon-dioxide emissions is "unreasonable" and what level of reduction is necessary cannot be reconciled with Congress' scheme. Pp. 12-15. (d) The plaintiffs also sought relief under state nuisance law. The Second Circuit did not reach those claims because it held that federal common law governed. In light of the holding here that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Because none of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law, the matter is left for consideration on remand. Pp. 15-16.582 F. 3d 309, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Sotomayor, J., took no part in the consideration or decision of the case.AMERICAN ELECTRIC POWER COMPANY, INC.,et al., PETITIONERS v. CONNECTICUT et al.on writ of certiorari to the united states court of appeals for the second circuit[June 20, 2011] Justice Ginsburg delivered the opinion of the Court. We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.I In Massachusetts v. EPA, this Court held that the Clean Air ActC. §7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. "[N]aturally present in the atmosphere and ... also emitted by human activities," greenhouse gases are so named because they "trap ... heat that would otherwise escape from the [Earth's] atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life." 74 Fed. Reg. 66499 (2009).1 Massachusetts held that the Environmental Protection Agency (EPA) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U. S., at 510-511. Greenhouse gases, we determined, qualify as "air pollutant[s]" within the meaning of the governing Clean Air Act provision, id., at 528-529 (quoting §7602(g)); they are therefore within EPA's regulatory ken. Because EPA had authority to set greenhouse gas emission standards and had offered no "reasoned explanation" for failing to do so, we concluded that the agency had not acted "in accordance with law" when it denied the requested rulemaking. Id., at 534-535 (quoting §7607(d)(9)(A)). Responding to our decision in Massachusetts, EPA un-dertook greenhouse gas regulation. In December 2009, the agency concluded that greenhouse gas emissions from motor vehicles "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare," the Act's regulatory trigger. §7521(a)(1); 74 Fed. Reg. 66496. The agency observed that "atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels," almost entirely "due to anthropogenic emissions," id., at 66517; mean global temperatures, the agency continued, demonstrate an "unambiguous warming trend over the last 100 years," and particularly "over the past 30 years," ibid. Acknowledging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523-66524, EPA concluded that "compelling" evidence supported the "attribution of observed climate change to anthropogenic" emissions of greenhouse gases, id., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other "extreme weather events" that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially "significant disruptions" of food production. Id., at 66524-66535.2 EPA and the Department of Transportation subsequently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed. Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavy-duty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified "[m]ajor [greenhouse gas] emitting facilities" use the "best available control technology." §7475(a)(4); 75 Fed. Reg. 31520-31521. Fin-ally, EPA commenced a rulemaking under §111 of the Act, 42 U. S. C. §7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18.II The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States3 and New York City, the second joined three nonprofit land trusts4; both groups are respondents here. The defendants, now petitioners, are four private companies5 and the Tennessee Valley Authority, a federally owned corporation that operates fossil-fuel fired power plants in several States. According to the complaints, the defendants "are the five largest emitters of carbon dioxide in the United States." App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a. By contributing to global warming, the plaintiffs asserted, the defendants' carbon-dioxide emissions created a "substantial and unreasonable interference with public rights," in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. App. 103-105, 145-147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. App. 88-93. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. App. 139-145. All plaintiffs sought injunctive relief requiring each defendant "to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade." App. 110, 153. The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U. S. 186 (1962), but the Second Circuit reversed, 582 F. 3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349. Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the "federal common law of nuisance." Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court's decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry. Id., at 350-351; see, e.g., Illinois v. Milwaukee, 406 U. S. 91, 93, (1972) (Milwaukee I) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan). The Court of Appeals further determined that the Clean Air Act did not "displace" federal common law. In Milwaukee v. Illinois, 451 U. S. 304, 316-319 (1981) (Milwaukee II), this Court held that Congress had displaced the federal common law right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U. S. C. §1251 et seq. That legislation installed an all-encompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U. S., at 310-311 (citing §1311). At the time of the Second Circuit's decision, by contrast, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive. 582 F. 3d, at 379-381. "Until EPA completes the rulemaking process," the court reasoned, "we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact 'spea[k] directly' to the 'particular issue' raised here by Plaintiffs." Id., at 380. We granted certiorari. 562 U. S. ___ (2010).III The petitioners contend that the federal courts lack au-thority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA's refusal to regulate greenhouse gas emissions, 549 U. S., at 520-526; and, further, that no other threshold obstacle bars review.6 Four members of the Court, adhering to a dissenting opinion in Massachusetts, 549 U. S., at 535, or regarding that decision as distinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equally divided Court, the Second Circuit's exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U. S. 33, 44 (1941).IVA "There is no federal general common law," Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938), famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). Erie "le[ft] to the states what ought be left to them," id., at 405, and thus required "federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states," id., at 422. Erie also sparked "the emergence of a federal decisional law in areas of national concern." Id., at 405. The "new" federal common law addresses "subjects within national legislative power where Congress has so directed" or where the basic scheme of the Constitution so demands. Id., at 408, n. 119, 421-422. Environmental protection is undoubtedly an area "within national legislative power," one in which federal courts may fill in "statutory interstices," and, if necessary, even "fashion federal law." Id., at 421-422. As the Court stated in Milwaukee I: "When we deal with air and water in their ambient or interstate aspects, there is a federal common law." 406 U. S., at 103. Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between "general common law" and "specialized federal common law," Friendly, supra, at 405, have approved federal common law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. Illinois, 180 U. S. 208, 241-243 (1901) (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New Jersey v. City of New York, 283 U. S. 473, 477, 481-483 (1931) (ordering New York City to stop dumping garbage off New Jersey coast); Georgia v. Tennessee Copper Co., 240 U. S. 650 (1916) (ordering private copper companies to curtail sulfur-dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee I, 406 U. S., at 107 (post-Erie decision upholding suit by Illinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions. Recognition that a subject is meet for federal law governance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demonstrated need for a federal rule of decision, the Court has taken "the prudent course" of "adopt[ing] the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation." United States v. Kimbell Foods, Inc., 440 U. S. 715, 740 (1979); see Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U. S. 29, 32-34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court remains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. Illinois, 200 U. S. 496, 519 (1906) ("fact that this court must decide does not mean, of course, that it takes the place of a legislature"); cf. United States v. Standard Oil Co. of Cal., 332 U. S. 301, 308, 314 (1947) (holding that federal law determines whether Government could secure indemnity from a company whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, "the primary and most often the exclusive arbiter of federal fiscal affairs"). In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens' health and welfare. We have not yet decided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of-state pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders. The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted "become well mixed in the atmosphere," 74 Fed. Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York than emissions in China. Cf. Brief for Petitioners 18-19. The plaintiffs, on the other hand, contend that an equitable remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondents Open Space In-stitute et al. 32-35. And we have recognized that public nuisance law, like common law generally, adapts to changing scientific and factual circumstances. Missouri, 200 U. S., at 522 (adjudicating claim though it did not concern "nuisance of the simple kind that was known to the older common law"); see also D'Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 472 (1942) (Jackson, J., concurring) ("federal courts are free to apply the traditional common-law technique of decision" when fashioning federal common law). We need not address the parties' dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.B "[W]hen Congress addresses a question previously governed by a decision rested on federal common law," the Court has explained, "the need for such an unusual exercise of law-making by federal courts disappears." Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the "same sort of evidence of a clear and manifest [congressional] purpose" demanded for preemption of state law. Id., at 317. " '[D]ue regard for the presuppositions of our embracing federal system ... as a promoter of democracy,' " id., at 316 (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest. TVA v. Hill, 437 U. S. 153, 194 (1978). The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute "speak[s] directly to [the] question" at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); see Milwaukee II, 451 U. S., at 315; County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 236-237 (1985). We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528-529. And we think it equally plain that the Act "speaks directly" to emissions of carbon dioxide from the defendants' plants. Section 111 of the Act directs the EPA Administrator to list "categories of stationary sources" that "in [her] judgment ... caus[e], or contribut[e] significantly to, air pol-lution which may reasonably be anticipated to endanger public health or welfare." §7411(b)(1)(A). Once EPA lists a category, the agency must establish standards of performance for emission of pollutants from new or modified sources within that category. §7411(b)(1)(B); see also §7411(a)(2). And, most relevant here, §7411(d) then requires regulation of existing sources within the same category.7 For existing sources, EPA issues emissions guidelines, see 40 C. F. R. §60.22, .23 (2009); in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, §7411(d)(1). The Act provides multiple avenues for enforcement. See County of Oneida, 470 U. S., at 237-239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate im-plementation and enforcement authority to the States, §7411(c)(1), (d)(1), but the agency retains the power to in-spect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court. §§7411(c)(2), (d)(2), 7413, 7414. In specified circumstances, the Act im-poses criminal penalties on any person who knowingly violates emissions standards issued under §7411. See §7413(c). And the Act provides for private enforcement. If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits "any person" to bring a civil enforcement action in federal court. §7604(a). If EPA does not set emissions limits for a particular pol-lutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA's response will be reviewable in federal court. See §7607(b)(1); Massachusetts, 549 U. S., at 516-517, 529. As earlier noted, see supra, at 3, EPA is currently engaged in a §7411 rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants. To settle litigation brought under §7607(b) by a group that included the majority of the plaintiffs in this very case, the agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants — the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.C The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., until it sets standards governing emissions from the defendants' plants. We disagree. The sewage discharges at issue in Milwaukee II, we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, "[e]very point source discharge" of water pollution was "prohibited unless covered by a permit." 451 U. S., at 318-320 (emphasis deleted). As Milwaukee II made clear, however, the relevant question for purposes of displacement is "whether the field has been occupied, not whether it has been occupied in a particular manner." Id., at 324. Of necessity, Congress se-lects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing. The Clean Air Act is no less an exercise of the legislature's "considered judgment" concerning the regulation of air pollution because it permits emissions until EPA acts. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 22, n. 32 (1981) (finding displacement although Congress "allowed some continued dumping of sludge" prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency's expert determination. EPA's judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed, see supra, at 11, can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see supra, at 10, the Clean Air Act directs EPA to establish emissions standards for categories of stationary sources that, "in [the Administrator's] judgment," "caus[e], or contri-but[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." §7411(b)(1)(A). "[T]he use of the word 'judgment,' " we explained in Massachusetts, "is not a roving license to ignore the statutory text." 549 U. S., at 533. "It is but a direction to exercise discretion within defined statutory limits." Ibid. EPA may not decline to regulate carbon-dioxide emissions from power plants if refusal to act would be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." §7607(d)(9)(A). If the plaintiffs in this case are dissatisfied with the outcome of EPA's forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court. Indeed, this prescribed order of decisionmaking — the first decider under the Act is the expert administrative agency, the second, federal judges — is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation's energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. Each "standard of performance" EPA sets must "tak[e] into account the cost of achieving [emissions] reduction and any nonair quality health and environmental impact and energy requirements." §7411(a)(1), (b)(1)(B), (d)(1); see also 40 C. F. R. §60.24(f) (EPA may permit state plans to deviate from generally applicable emissions standards upon demonstration that costs are "[u]n-reasonable"). EPA may "distinguish among classes, types, and sizes" of stationary sources in apportioning responsibility for emissions reductions. §7411(b)(2), (d); see also 40 C. F. R. §60.22(b)(5). And the agency may waive compliance with emission limits to permit a facility to test drive an "innovative technological system" that has "not [yet] been adequately demonstrated." §7411(j)(1)(A). The Act envisions extensive cooperation between federal and state authorities, see §7401(a), (b), generally permitting each State to take the first cut at determining how best to achieve EPA emissions standards within its domain, see §7411(c)(1), (d)(1)-(2). It is altogether fitting that Congress designated an ex-pert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865-866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court. Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is "unreasonable," App. 103, 145, and then decide what level of reduction is "practical, feasible and economically viable," App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against "thousands or hundreds or tens" of other defendants fitting the description "large contributors" to carbon-dioxide emissions. Tr. of Oral Arg. 57. The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action "arbitrary, capricious, ... or otherwise not in accordance with law." §7607(d)(9).V The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate power plants. See App. 105, 147. The Second Circuit did not reach the state law claims because it held that federal common law governed. 582 F. 3d, at 392; see International Paper Co. v. Ouellette, 479 U. S. 481, 488 (1987) (if a case "should be resolved by reference to federal common law[,] ... state common law [is] preempted"). In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a "nuisance claim pursuant to the law of the source State"). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.* * * For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.It is so ordered. Justice Sotomayor took no part in the consideration or decision of this case.AMERICAN ELECTRIC POWER COMPANY, INC., et al., PETITIONERS v. CONNECTICUT et al.on writ of certiorari to the united states court of appeals for the second circuit[June 20, 2011] Justice Alito, with whom Justice Thomas joins, concurring in part and concurring in the judgment. I concur in the judgment, and I agree with the Court's displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act, 42 U. S. C. §7401 et seq., adopted by the majority in Massachusetts v. EPA, 549 U. S. 497 (2007), is correct.FOOTNOTESFootnote 1 In addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 66499.Footnote 2 For views opposing EPA's, see, e.g., Dawidoff, The Civil Heretic, N. Y. Times Magazine 32 (March 29, 2009). The Court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change.Footnote 3 California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondents Connecticut et al. 3, n. 1.Footnote 4 Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.Footnote 5 American Electric Power Company, Inc. (and a wholly owned subsidiary), Southern Company, Xcel Energy Inc., and Cinergy Corporation.Footnote 6 In addition to renewing the political question argument made below, the petitioners now assert an additional threshold obstacle: They seek dismissal because of a "prudential" bar to the adjudication of generalized grievances, purportedly distinct from Article III's bar. See Brief for Tennessee Valley Authority 14-24; Brief for Petitioners 30-31.Footnote 7 There is an exception: EPA may not employ §7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§7408-7410, or the "hazardous air pollutants" program, §7412. See §7411(d)(1). |
2 | Federal-law limits on the amount of contributions a House of Representatives candidate and his authorized committee may receive from an individual, and the amount his party may devote to coordinated campaign expenditures, 2 U. S. C. §§441a(a)(1)(A), (a)(3)(A), (c), and (d), normally apply equally to all competitors for a seat and their authorized committees. However, §319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 2 U. S. C. §441a-1(a), part of the so-called "Millionaire's Amendment," fundamentally alters this scheme when, as a result of a candidate's expenditure of personal funds, the "opposition personal funds amount" (OPFA) exceeds $350,000. The OPFA is a statistic comparing competing candidates' personal expenditures and taking account of certain other fundraising. When a "self-financing" candidate's personal expenditure causes the OPFA to pass $350,000, a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the normal limitations, but his opponent, the "non-self-financing" candidate, may receive individual contributions at treble the normal limit from individuals who have reached the normal limit on aggregate contributions, and may accept coordinated party expenditures without limit. See §§441a-1(a)(1)(A)-(C). Because calculating the OPFA requires certain information about the self-financing candidate's campaign assets and personal expenditures, §319(b) requires him to file an initial "declaration of intent" revealing the amount of personal funds the candidate intends to spend in excess of $350,000, and to make additional disclosures to the other candidates, their national parties, and the Federal Election Commission (FEC) as his personal expenditures exceed certain benchmarks. Appellant Davis, a candidate for a House seat in 2004 and 2006 who lost both times to the incumbent, notified the FEC for the 2006 election, in compliance with §319(b), that he intended to spend $1 million in personal funds. After the FEC informed him it had reason to believe he had violated §319 by failing to report personal expenditures during the 2004 campaign, he filed this suit for a declaration that §319 is unconstitutional and an injunction preventing the FEC from enforcing the section during the 2006 election. The District Court concluded sua sponte that Davis had standing, but rejected his claims on the merits and granted the FEC summary judgment. Held: 1. This Court has jurisdiction to hear Davis' appeal. Pp. 6-10. (a) Davis has standing to challenge §319(b)'s disclosure requirements. When he filed suit, he had already declared his 2006 candidacy and had been forced by §319(b) to disclose to his opponent that he intended to spend more than $350,000 in personal funds. He also faced the imminent threat that he would have to follow up on that disclosure with further notifications once he passed the $350,000 mark. Securing a declaration that §319(b) is unconstitutional and an injunction against its enforcement would have spared him from making those disclosures and also would have removed the real threat that the FEC would pursue an enforcement action based on alleged §319(b) violations during his 2004 campaign. Davis also has standing to challenge §319(a)'s asymmetrical contribution limits. The standing inquiry focuses on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed, see, e.g., Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180, and a party facing prospective injury has standing where the threatened injury is real, immediate, and direct, see, e.g., Los Angeles v. Lyons, 461 U. S. 95, 102. Davis faced the requisite injury from §319(a) when he filed suit: He had already declared his candidacy and his intent to spend more than $350,000 of personal funds in the general election campaign whose onset was rapidly approaching. Section 319(a) would shortly burden his personal expenditure by allowing his opponent to receive contributions on more favorable terms, and there was no indication that his opponent would forgo that opportunity. Pp. 6-8. (b) The FEC's argument that the Court lacks jurisdiction because Davis' claims are moot also fails. In Federal Election Comm'n v. Wisconsin Right to Life, Inc. (WRTL), 551 U. S. ___, this Court rejected a very similar claim of mootness, finding that the case "fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review." Id., at ___. That "exception applies where '(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.' " Ibid. First, despite BCRA's command that the case be expedited to the greatest possible extent and Davis' request that his case be resolved before the 2006 election, the case could not be resolved before the 2006 election. See id., at ___. Second, the FEC has conceded that Davis' §319(a) claim would be capable of repetition if he planned to self-finance another bid for a House seat, and he subsequently made a public statement expressing his intent to do so. See id., at ___ . Pp. 8-9. 2. Sections 319(a) and (b) violate the First Amendment. If §319(a)'s elevated contribution limits applied across the board to all candidates, Davis would have no constitutional basis for challenging them. Section 319(a), however, raises the limits only for non-self-financing candidates and only when the self-financing candidate's expenditure of personal funds causes the OPFA threshold to be exceeded. This Court has never upheld the constitutionality of a law that imposes different contribution limits for candidates competing against each other, and it agrees with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech. In Buckley v. Valeo, 424 U. S. 1, the Court soundly rejected a cap on a candidate's expenditure of personal funds to finance campaign speech, holding that a "candidate ... has a First Amendment right to ... vigorously and tirelessly ... advocate his own election," and that a cap on personal expenditures imposes "a substantial," "clea[r,]" and "direc[t]" restraint on that right, id., at 52-53. It found the cap at issue not justified by "[t]he primary governmental interest" in "the prevention of actual and apparent corruption of the political process," id., at 53, or by "[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office," id., at 54. Buckley is instructive here. While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right, requiring him to choose between the right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. The resulting drag on First Amendment rights is not constitutional simply because it attaches as a consequence of a statutorily imposed choice. Id., at 54-57, and n. 65, distinguished. The burden is not justified by any governmental interest in eliminating corruption or the perception of corruption, see id., at 53. Nor can an interest in leveling electoral opportunities for candidates of different personal wealth justify §319(a)'s asymmetrical limits, see id., at 56-57. The Court has never recognized this interest as a legitimate objective and doing so would have ominous implications for the voters' authority to evaluate the strengths of candidates competing for office. Finally, the Court rejects the Government's argument that §319(a) is justified because it ameliorates the deleterious effects resulting from the tight limits federal election law places on individual campaign contributions and coordinated party expenditures. Whatever this argument's merits as an original matter, it is fundamentally at war with Buckley's analysis of expenditure and contributions limits, which this Court has applied in subsequent cases. Pp. 10-17. (c) Because §319(a) is unconstitutional, §319(b)'s disclosure requirements, which were designed to implement the asymmetrical contribution limits, are as well. "[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment," Buckley, 424 U. S., at 64, so the Court closely scrutinizes such requirements, id., at 75. For significant encroachments to survive, there must be "a 'relevant correlation' or 'substantial relation' between the governmental interest and the information required to be disclosed" and the governmental interest must reflect the seriousness of the burden on First Amendment rights. Ibid. Given §319(a)'s unconstitutionality, the burden imposed by the §319(b) requirements cannot be justified. P. 18. 501 F. Supp. 2d 22, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Part II. Ginsburg, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined.JACK DAVIS, APPELLANT v. FEDERALELECTION COMMISSIONon appeal from the united states district court for the district of columbia[June 26, 2008] Justice Alito delivered the opinion of the Court in which Justice Stevens, Justice Souter, Justice Ginsburg, and Justice Breyer joined as to Part II. In this appeal, we consider the constitutionality of federal election law provisions that, under certain circumstances, impose different campaign contribution limits on candidates competing for the same congressional seat.IA Federal law limits the amount of money that a candidate for the House of Representatives and the candidate's authorized committee may receive from an individual, as well as the amount that the candidate's party may devote to coordinated campaign expenditures. 2 U. S. C. §441a (2006 ed.).1 Under the usual circumstances, the same restrictions apply to all the competitors for a seat and their authorized committees. Contributions from individual donors during a 2-year election cycle are subject to a cap, which is currently set at $2,300. See §§441a(a)(1)(A), (c); 72 Fed. Reg. 5295 (2007). In addition, no funds may be accepted from an individual whose aggregate contributions to candidates and their committees during the election cycle have reached the legal limit, currently $42,700. See 2 U. S. C. §§441a(a)(3)(A), (c); 72 Fed. Reg. 5295. A candidate also may not accept general election coordinated expenditures by national or state political party committees that exceed an imposed limit. See 2 U. S. C. §§441a(c), (d). Currently, the limit for candidates in States with more than one House seat is $40,900. 72 Fed. Reg. 5294.2 Section 319(a) of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 109, 2 U. S. C. §441a-1(a),3 part of the so-called "Millionaire's Amendment," fundamentally alters this scheme when, as a result of a candidate's expenditure of personal funds, the "opposition personal funds amount" (OPFA) exceeds $350,000.4 The OPFA, in simple terms, is a statistic that compares the expenditure of personal funds by competing candidates and also takes into account to some degree certain other fundraising.5 See §441a-1(a). When a candidate's expenditure of personal funds causes the OPFA to pass the $350,000 mark (for convenience, such candidates will be referred to as "self-financing"), a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the limitations noted above, but the candidate's opponent (the "non-self-financing" candidate) may receive individual contributions at treble the normal limit (e.g., $6,900 rather than the current $2,300), even from individuals who have reached the normal aggregate contributions cap, and may accept coordinated party expenditures without limit. See §§441a-1(a)(1)(A)-(C). Once the non-self-financing candidate's receipts exceed the OPFA, the prior limits are revived. §441a-1(a)(3). A candidate who does not spend the contributions received under the asymmetrical limits must return them. §441a-1(a)(4). In order to calculate the OPFA, certain information is needed about the self-financing candidate's campaign assets and personal expenditures. Section 319(b) thus requires self-financing candidates to make three types of disclosures. First, within 15 days after entering a race, a candidate must file a "[d]eclaration of intent" revealing the amount of personal funds the candidate intends to spend in excess of $350,000. 2 U. S. C. §441a-1(b)(1)(B). A candidate who does not intend to cross this threshold may simply declare an intent to spend no personal funds. 11 CFR §400.20(a)(2) (2008). Second, within 24 hours of crossing or becoming obligated to cross the $350,000 mark, the candidate must file an "[i]nitial notification." 2 U. S. C. §441a-1(b)(1)(C). Third, the candidate must file an "[a]dditional notification" within 24 hours of making or becoming obligated to make each additional expenditure of $10,000 or more using personal funds. §441a-1(b)(1)(D). The initial and additional notifications must provide the date and amount of each expenditure from personal funds, and all notifications must be filed with the Federal Election Commission (FEC), all other candidates for the seat, and the national parties of all those candidates. §441a-1(b)(1)(E). Failure to comply with the reporting requirements may result in civil and criminal penalties. §§437g(a)(5)-(6), (d)(1). A non-self-financing candidate and the candidate's committee face less extensive disclosure requirements. Within 24 hours after receiving an "initial" or "additional" notification filed by a self-financing opponent, a non-self-financing candidate must provide notice to the FEC and the national and state committees of the candidate's party if the non-self-financing candidate concludes based on the newly acquired information that the OPFA has passed the $350,000 mark. 11 CFR §400.30(b)(2). In addition, when the additional contributions that a non-self-financing candidate is authorized to receive pursuant to the asymmetrical limitations scheme equals the OPFA, the non-self-financing candidate must notify the FEC and the appropriate national and state committees within 24 hours. §400.31(e)(1)(ii). The non-self-financing candidate must also provide notice regarding any refunds of "excess funds" (funds received under the increased limits but not used in the campaign). §§400.50, 400.54. For their part, political parties must notify the FEC and the candidate they support within 24 hours of making any expenditures that exceed the normal limit for coordinated party expenditures. §400.30(c)(2).B Appellant Jack Davis was the Democratic candidate for the House of Representatives from New York's 26th Congressional District in 2004 and 2006. In both elections, he lost to the incumbent. In his brief, Davis discloses having spent $1.2 million, principally his own funds, on his 2004 campaign. Brief for Appellant 4. He reports spending $2.3 million in 2006, all but $126,000 of which came from personal funds. Id., at 13. His opponent in 2006 spent no personal funds. Indeed, although the OPFA calculation provided the opportunity for Davis' opponent to raise nearly $1.5 million under §319(a)'s asymmetrical limits, Davis' opponent adhered to the normal contribution limits. Davis' 2006 candidacy began in March 2006, when he filed with the FEC a "Statement of Candidacy" and, in compliance with §319(b), declared that he intended to spend $1 million in personal funds during the general election. Two months later, in anticipation of this expenditure and its §319 consequences, Davis filed suit against the FEC, requesting that §319 be declared unconstitutional and that the FEC be enjoined from enforcing it during the 2006 election. After Davis declared his candidacy but before he filed suit, the FEC's general counsel notified him that it had reason to believe that he had violated §319 by failing to report personal expenditures during the 2004 campaign. The FEC proposed a conciliation agreement under which Davis would pay a substantial civil penalty. Davis responded by agreeing to toll the limitations period for an FEC enforcement action until resolution of this suit. Davis filed this action in the United States District Court for the District of Columbia, and a three-judge panel was convened. BCRA §403, 116 Stat. 113, note following 2 U. S. C. §437h. While Davis requested that the case be decided before the general election campaign began on September 12, 2006, the FEC opposed the request, asserting the need for extensive discovery, and the request was denied. Ultimately, the parties filed cross-motions for summary judgment. Ruling on those motions, the District Court began by addressing Davis' standing sua sponte. The Court concluded that Davis had standing, but rejected his claims on the merits and granted summary judgment for the FEC. 501 F. Supp. 2d 22 (2007). Davis then invoked BCRA's exclusive avenue for appellate review — direct appeal to this Court. Note following §437h. We deferred full consideration of our jurisdiction, 552 U. S. ___ (2008), and we now reverse.II Like the District Court, we must first ensure that we have jurisdiction to hear Davis' appeal. Article III restricts federal courts to the resolution of cases and controversies. Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997). That restriction requires that the party invoking federal jurisdiction have standing — the "personal interest that must exist at the commencement of the litigation." Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000) (internal quotation marks omitted). But it is not enough that the requisite interest exist at the outset. "To qualify as a case fit for federal-court adjudication, 'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.' " Arizonans for Official English, supra, at 67. The FEC argues that Davis' appeal fails to present a constitutional case or controversy because Davis lacks standing and because his claims are moot. We address each of these issues in turn.A As noted, the requirement that a claimant have "standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992); see also Arizonans for Official English, supra, at 64. To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged behavior; and likely to be redressed by a favorable ruling. Lujan, supra, at 560-561. The District Court held, and the parties do not dispute, that Davis possesses standing to challenge the disclosure requirements of §319(b). When Davis filed suit, he had already declared his 2006 candidacy and had been forced by §319(b) to disclose to his opponent that he intended to spend more than $350,000 in personal funds. At that time, Davis faced the imminent threat that he would have to follow up on that disclosure with further notifications after he in fact passed the $350,000 mark. Securing a declaration that §319(b)'s requirements are unconstitutional and an injunction against their enforcement would have spared him from making those disclosures. That relief also would have removed the real threat that the FEC would pursue an enforcement action based on alleged violations of §319(b) during his 2004 campaign. As a result, Davis possesses standing to challenge §319(b)'s disclosure requirement. The fact that Davis has standing to challenge §319(b) does not necessarily mean that he also has standing to challenge the scheme of contribution limitations that applies when §319(a) comes into play. "[S]tanding is not dispensed in gross." Lewis v. Casey, 518 U. S. 343, 358, n. 6 (1996). Rather, "a plaintiff must demonstrate standing for each claim he seeks to press" and " 'for each form of relief' " that is sought. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 352 (2006) (quoting Friends of Earth, supra, at 185). In light of these principles, the FEC argues that Davis lacks standing to attack §319(a)'s asymmetrical limits. When Davis commenced this action, his opponent had not yet qualified for the asymmetrical limits, and later, when his opponent did qualify to take advantage of those limits, he chose not to do so. Accordingly, the FEC argues that §319(a) did not cause Davis any injury. While the proof required to establish standing increases as the suit proceeds, see Lujan, supra, at 561, the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed. Friends of Earth, supra, at 180; Arizonans for Official English, supra, at 68, n. 22. As noted above, the injury required for standing need not be actualized. A party facing prospective injury has standing to sue where the threatened injury is real, immediate, and direct. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983); see also Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979) (A plaintiff may challenge the prospective operation of a statute that presents a realistic and impending threat of direct injury). Davis faced such an injury from the operation of §319(a) when he filed suit. Davis had declared his candidacy and his intent to spend more than $350,000 of personal funds in the general election campaign whose onset was rapidly approaching. Section 319(a) would shortly burden his expenditure of personal funds by allowing his opponent to receive contributions on more favorable terms, and there was no indication that his opponent would forgo that opportunity. Indeed, the record at summary judgment indicated that most candidates who had the opportunity to receive expanded contributions had done so. App. 89. In these circumstances, we conclude that Davis faced the requisite injury from §319(a) when he filed suit and has standing to challenge that provision's asymmetrical contribution scheme.B The FEC's mootness argument also fails. This case closely resembles Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U. S. ___ (2007). There, Wisconsin Right to Life (WRTL), a nonprofit, ideological advocacy corporation, wished to run radio and TV ads within 30 days of the 2004 Washington primary, contrary to a restriction imposed by BCRA. WRTL sued the FEC, seeking declaratory and injunctive relief. Although the suit was not resolved before the 2004 election, we rejected the FEC's claim of mootness, finding that the case "fit comfortably within the established exception to mootness for disputes capable of repetition, yet evading review." Id., at ___ (slip op., at 8). That "exception applies where '(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.' " Ibid. (quoting Spencer v. Kemna, 523 U. S. 1, 17 (1998)). In WRTL, "despite BCRA's command that the cas[e] be expedited 'to the greatest possible extent,' " WRTL's claims could not reasonably be resolved before the election concluded. 551 U. S., at ___ (slip op., at 8) (quoting §403(a)(4), 116 Stat. 113, note following 2 U. S. C. §437h). Similarly, in this case despite BCRA's mandate to expedite and Davis' request that his case be resolved before the 2004 general election season commenced, Davis' case could not be resolved before the 2006 election concluded, demonstrating that his claims are capable of evading review. As to the second prong of the exception, even though WRTL raised an as-applied challenge, we found its suit capable of repetition where "WRTL credibly claimed that it planned on running 'materially similar' future" ads subject to BCRA's prohibition and had, in fact, sought an injunction that would permit such an ad during the 2006 election. 551 U. S., at ___ (slip op., at 9) (some internal quotation marks omitted). Here, the FEC conceded in its brief that Davis' §319(a) claim would be capable of repetition if Davis planned to self-finance another bid for a House seat. Brief for Appellee 14, 20-21, and n. 5. Davis subsequently made a public statement expressing his intent to do so. See Reply Brief 16 (citing Terreri, Democrat Davis Confirms He'll Run Again for Congress, Rochester Democrat and Chronicle, Mar. 27, 2008, p. 5B). As a result, we are satisfied that Davis' facial challenge is not moot.6III We turn to the merits of Davis' claim that the First Amendment is violated by the contribution limits that apply when §319(a) comes into play. Under this scheme, as previously noted, when a candidate spends more than $350,000 in personal funds and creates what the statute apparently regards as a financial imbalance, that candidate's opponent may qualify to receive both larger individual contributions than would otherwise be allowed and unlimited coordinated party expenditures. Davis contends that §319(a) unconstitutionally burdens his exercise of his First Amendment right to make unlimited expenditures of his personal funds because making expenditures that create the imbalance has the effect of enabling his opponent to raise more money and to use that money to finance speech that counteracts and thus diminishes the effectiveness of Davis' own speech.A If §319(a) simply raised the contribution limits for all candidates, Davis' argument would plainly fail. This Court has previously sustained the facial constitutionality of limits on discrete and aggregate individual contributions and on coordinated party expenditures. Buckley v. Valeo, 424 U. S. 1, 23-35, 38, 46-47, and n. 53 (1976) (per curiam); Federal Election Comm'n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431, 437, 465 (2001) (Colorado II). At the same time, the Court has recognized that such limits implicate First Amendment interests and that they cannot stand unless they are "closely drawn" to serve a "sufficiently important interest," such as preventing corruption and the appearance of corruption. See, e.g., McConnell v. Federal Election Comm'n, 540 U. S. 93, 136, 138, n. 40 (2003); Colorado II, supra, at 456; Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387-388 (2000); Buckley, supra, at 25-30, 38. When contribution limits are challenged as too restrictive, we have extended a measure of deference to the judgment of the legislative body that enacted the law. See, e.g., Randall v. Sorrell, 548 U. S. 230, 248 (2006) (plurality opinion); Nixon, supra, at 396-397; Buckley, supra, at 30, 111, 103-104. But we have held that limits that are too low cannot stand. Randall, supra, at 246-262; id., at 263 (Alito, J., concurring in part and concurring in judgment). There is, however, no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all; and if Congress concludes that allowing contributions of a certain amount does not create an undue risk of corruption or the appearance of corruption, a candidate who wishes to restrict an opponent's fundraising cannot argue that the Constitution demands that contributions be regulated more strictly. Consequently, if §319(a)'s elevated contribution limits applied across the board, Davis would not have any basis for challenging those limits.B Section 319(a), however, does not raise the contribution limits across the board. Rather, it raises the limits only for the non-self-financing candidate and does so only when the self-financing candidate's expenditure of personal funds causes the OPFA threshold to be exceeded. We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech. In Buckley, we soundly rejected a cap on a candidate's expenditure of personal funds to finance campaign speech. We held that a "candidate ... has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election" and that a cap on personal expenditures imposes "a substantial," "clea[r]" and "direc[t]" restraint on that right. 424 U. S., at 52-53. We found that the cap at issue was not justified by "[t]he primary governmental interest" proffered in its defense, i.e., "the prevention of actual and apparent corruption of the political process." Id., at 53. Far from preventing these evils, "the use of personal funds," we observed, "reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which ... contribution limitations are directed." Ibid. We also rejected the argument that the expenditure cap could be justified on the ground that it served "[t]he ancillary interest in equalizing the relative financial resources of candidates competing for elective office." Id., at 54. This putative interest, we noted, was "clearly not sufficient to justify the ... infringement of fundamental First Amendment rights." Ibid. Buckley's emphasis on the fundamental nature of the right to spend personal funds for campaign speech is instructive. While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. Section 319(a) requires a candidate to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations. Many candidates who can afford to make large personal expenditures to support their campaigns may choose to do so despite §319(a), but they must shoulder a special and potentially significant burden if they make that choice. See Day v. Holahan, 34 F. 3d 1356, 1359-1360 (CA8 1994) (concluding that a Minnesota law that increased a candidate's expenditure limits and eligibility for public funds based on independent expenditures against her candidacy burdened the speech of those making the independent expenditures); Brief for Appellee 29 (conceding that "[§]319 does impose some consequences on a candidate's choice to self-finance beyond certain amounts"). Under §319(a), the vigorous exercise of the right to use personal funds to finance campaign speech produces fundraising advantages for opponents in the competitive context of electoral politics. Cf. Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1, 14 (1986) (plurality opinion) (finding infringement on speech rights where if the plaintiff spoke it could "be forced ... to help disseminate hostile views"). The resulting drag on First Amendment rights is not constitutional simply because it attaches as a consequence of a statutorily imposed choice. In Buckley, we held that Congress "may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations" even though we found an independent limit on overall campaign expenditures to be unconstitutional. 424 U. S., at 57, n. 65; see id., at 54-58. But the choice involved in Buckley was quite different from the choice imposed by §319(a). In Buckley, a candidate, by forgoing public financing, could retain the unfettered right to make unlimited personal expenditures. Here, §319(a) does not provide any way in which a candidate can exercise that right without abridgment. Instead, a candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits. The choice imposed by §319(a) is not remotely parallel to that in Buckley. Because §319(a) imposes a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech, that provision cannot stand unless it is "justified by a compelling state interest," Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 256 (1986); see also, e.g., McConnell, 540 U. S., at 205; Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 657-658 (1990); id., at 680 (Scalia, J., dissenting); id., at 701, 702-703 (Kennedy, J., dissenting); Federal Election Comm'n v. National Conservative Political Action Comm., 470 U. S. 480, 500-501 (1985); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 786 (1978); Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. 604, 609 (1996) (principal opinion) (Colorado I); id., at 640-641 (Thomas, J., concurring in judgment and dissenting in part). No such justification is present here.7 The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. Similarly, given Congress' judgment that liberalized limits for non-self-financing candidates do not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the resulting constitutional burden. The Government maintains that §319(a)'s asymmetrical limits are justified because they "level electoral opportunities for candidates of different personal wealth." Brief for Appellee 34. "Congress enacted Section 319," the Government writes," "to reduce the natural advantage that wealthy individuals possess in campaigns for federal office." Id., at 33 (emphasis added). Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective. See Nixon, 528 U. S., at 428 (Thomas, J., dissenting) (" '[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances' " (quoting National Conservative Political Action Comm., supra, at 496-497)); Randall, 548 U. S., at 268 (Thomas, J., concurring in judgment) (noting "the interests the Court has recognized as compelling, i.e., the prevention of corruption or the appearance thereof"). On the contrary, in Buckley, we held that "[t]he interest in equalizing the financial resources of candidates" did not provide a "justification for restricting" candidates' overall campaign expenditures, particularly where equalization "might serve ... to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign." 424 U. S., at 56-57. We have similarly held that the interest "in equalizing the relative ability of individuals and groups to influence the outcome of elections" cannot support a cap on expenditures for "express advocacy of the election or defeat of candidates," as "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." Id., at 48-49; see also McConnell, supra, at 227 (noting, in assessing standing, that there is no legal right to have the same resources to influence the electoral process). Cf. Austin, supra, at 705 (Kennedy, J., dissenting) (rejecting as "antithetical to the First Amendment" "the notion that the government has a legitimate interest in restricting the quantity of speech to equalize the relative influence of speakers on elections"). The argument that a candidate's speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office. See Bellotti, supra, at 791-792 ("[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments" and "may consider, in making their judgment, the source and credibility of the advocate"). Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, §2, and it is a dangerous business for Congress to use the election laws to influence the voters' choices. See Bellotti, 435 U. S., at 791, n. 31 (The "[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves"). Finally, the Government contends that §319(a) is justified because it ameliorates the deleterious effects that result from the tight limits that federal election law places on individual campaign contributions and coordinated party expenditures. These limits, it is argued, make it harder for candidates who are not wealthy to raise funds and therefore provide a substantial advantage for wealthy candidates. Accordingly, §319(a) can be seen, not as a legislative effort to interfere with the natural operation of the electoral process, but as a legislative effort to mitigate the untoward consequences of Congress' own handiwork and restore "the normal relationship between a candidate's financial resources and the level of popular support for his candidacy." Brief for Appellee 33. Whatever the merits of this argument as an original matter, it is fundamentally at war with the analysis of expenditure and contributions limits that this Court adopted in Buckley and has applied in subsequent cases. The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise8 — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest. If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a "public perception that wealthy people can buy seats in Congress," Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.IV The remaining issue that we must consider is the constitutionality of §319(b)'s disclosure requirements. "[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment." Buckley, 424 U. S., at 64. As a result, we have closely scrutinized disclosure requirements, including requirements governing independent expenditures made to further individuals' political speech. Id., at 75. To survive this scrutiny, significant encroachments "cannot be justified by a mere showing of some legitimate governmental interest." Id., at 64. Instead, there must be "a 'relevant correlation' or 'substantial relation' between the governmental interest and the information required to be disclosed," and the governmental interest "must survive exacting scrutiny." Ibid. (footnotes omitted). That is, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights. Id., at 68, 71. The §319(b) disclosure requirements were designed to implement the asymmetrical contribution limits provided for in §319(a), and as discussed above, §319(a) violates the First Amendment. In light of that holding, the burden imposed by the §319(b) requirements cannot be justified, and it follows that they too are unconstitutional.9* * * In sum, we hold that §§319(a) and (b) violate the First Amendment. The judgment of the District Court is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered.AppendixBCRA §319(a) provides:"(a) Availability of increased limit "(1) In general "Subject to paragraph (3), if the opposition personal funds amount with respect to a candidate for election to the office of Representative in, or Delegate or Resident Commissioner to, the Congress exceeds $350,000-- "(A) the limit under subsection (a)(1)(A) with respect to the candidate shall be tripled; "(B) the limit under subsection (a)(3) shall not apply with respect to any contribution made with respect to the candidate if the contribution is made under the increased limit allowed under subparagraph (A) during a period in which the candidate may accept such a contribution; and "(C) the limits under subsection (d) with respect to any expenditure by a State or national committee of a political party on behalf of the candidate shall not apply. "(2) Determination of opposition personal funds amount "(A) In general "The opposition personal funds amount is an amount equal to the excess (if any) of-- "(i) the greatest aggregate amount of expenditures from personal funds (as defined in subsection (b)(1) of this section) that an opposing candidate in the same election makes; over "(ii) the aggregate amount of expenditures from personal funds made by the candidate with respect to the election. "(B) Special rule for candidate's campaign funds "(i) In general "For purposes of determining the aggregate amount of expenditures from personal funds under subparagraph (A), such amount shall include the gross receipts advantage of the candidate's authorized committee. "(ii) Gross receipts advantage "For purposes of clause (i), the term "gross receipts advantage" means the excess, if any, of-- "(I) the aggregate amount of 50 percent of gross receipts of a candidate's authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held, over "(II) the aggregate amount of 50 percent of gross receipts of the opposing candidate's authorized committee during any election cycle (not including contributions from personal funds of the candidate) that may be expended in connection with the election, as determined on June 30 and December 31 of the year preceding the year in which a general election is held. "(3) Time to accept contributions under increased limit "(A) In general "Subject to subparagraph (B), a candidate and the candidate's authorized committee shall not accept any contribution, and a party committee shall not make any expenditure, under the increased limit under paragraph (1)-- "(i) until the candidate has received notification of the opposition personal funds amount under subsection (b)(1) of this section; and "(ii) to the extent that such contribution, when added to the aggregate amount of contributions previously accepted and party expenditures previously made under the increased limits under this subsection for the election cycle, exceeds 100 percent of the opposition personal funds amount. "(B) Effect of withdrawal of an opposing candidate "A candidate and a candidate's authorized committee shall not accept any contribution and a party shall not make any expenditure under the increased limit after the date on which an opposing candidate ceases to be a candidate to the extent that the amount of such increased limit is attributable to such an opposing candidate. "(4) Disposal of excess contributions "(A) In general "The aggregate amount of contributions accepted by a candidate or a candidate's authorized committee under the increased limit under paragraph (1) and not otherwise expended in connection with the election with respect to which such contributions relate shall, not later than 50 days after the date of such election, be used in the manner described in subparagraph (B). "(B) Return to contributors "A candidate or a candidate's authorized committee shall return the excess contribution to the person who made the contribution.""(b) Notification of expenditures from personal funds "(1) In general "(A) Definition of expenditure from personal fundsIn this paragraph, the term "expenditure from personal funds" means-- "(i) an expenditure made by a candidate using personal funds; and "(ii) a contribution or loan made by a candidate using personal funds or a loan secured using such funds to the candidate's authorized committee. "(B) Declaration of intent "Not later than the date that is 15 days after the date on which an individual becomes a candidate for the office of Representative in, or Delegate or Resident Commissioner to, the Congress, the candidate shall file a declaration stating the total amount of expenditures from personal funds that the candidate intends to make, or to obligate to make, with respect to the election that will exceed $350,000. "(C) Initial notification "Not later than 24 hours after a candidate described in subparagraph (B) makes or obligates to make an aggregate amount of expenditures from personal funds in excess of $350,000 in connection with any election, the candidate shall file a notification. "(D) Additional notification "After a candidate files an initial notification under subparagraph (C), the candidate shall file an additional notification each time expenditures from personal funds are made or obligated to be made in an aggregate amount that exceeds $10,000. Such notification shall be filed not later than 24 hours after the expenditure is made. "(E) Contents "A notification under subparagraph (C) or (D) shall include-- "(i) the name of the candidate and the office sought by the candidate; "(ii) the date and amount of each expenditure; and "(iii) the total amount of expenditures from personal funds that the candidate has made, or obligated to make, with respect to an election as of the date of the expenditure that is the subject of the notification. "(F) Place of filing "Each declaration or notification required to be filed by a candidate under subparagraph (C), (D), or (E) shall be filed with-- "(i) the Commission; and "(ii) each candidate in the same election and the national party of each such candidate. "(2) Notification of disposal of excess contributions "In the next regularly scheduled report after the date of the election for which a candidate seeks nomination for election to, or election to, Federal office, the candidate or the candidate's authorized committee shall submit to the Commission a report indicating the source and amount of any excess contributions (as determined under subsection (a) of this section) and the manner in which the candidate or the candidate's authorized committee used such funds. "(3) Enforcement "For provisions providing for the enforcement of the reporting requirements under this subsection, see section 437g of this title." 2 U. S. C. §441a-1 (footnotes omitted).SUPREME COURT OF THE UNITED STATESJACK DAVIS, APPELLANT v. FEDERAL ELECTION COMMISSIONon appeal from the united states district court for the district of columbia[June 26, 2008] Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join as to Part II, concurring in part and dissenting in part. The "Millionaire's Amendment" of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 109, 2 U. S. C. §441a-1 (2006 ed.), is the product of a congressional judgment that candidates who are willing and able to spend over $350,000 of their own money in seeking election to Congress enjoy an advantage over opponents who must rely on contributions to finance their campaigns. To reduce that advantage, and to combat the perception that congressional seats are for sale to the highest bidder, Congress has relaxed the restrictions that would otherwise limit the amount of contributions that the opponents of self-funding candidates may accept from their supporters. In a thorough and well-reasoned opinion, the District Court held that because the Millionaire's Amendment does not impose any burden whatsoever on the self-funding candidate's freedom to speak, it does not violate the First Amendment, and because it does no more than diminish the unequal strength of the self-funding candidate, it does not violate the equal protection component of the Fifth Amendment. I agree completely with the District Court's opinion, specifically its adherence to our decision in McConnell v. Federal Election Comm'n, 540 U. S. 93 (2003). While I would affirm for the reasons given by the District Court, I believe it appropriate to add these additional comments on the premise that underlies the constitutional prohibition on expenditure limitations, and on my reasons for concluding that the Millionaire's Amendment represents a modest, sensible, and plainly constitutional attempt by Congress to minimize the advantages enjoyed by wealthy candidates vis-À-vis those who must rely on the support of others to fund their pursuit of public office.I According to the Court's decision in Buckley v. Valeo, 424 U. S. 1, 18 (1976) (per curiam), the vice that condemns expenditure limitations is that they "impose direct quantity restrictions" on political speech.1 A limitation on the amount of money that a candidate is permitted to spend, the Buckley Court concluded, "reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." Id., at 19. Accordingly, the Court determined that any regulation of the quantity of money spent on campaigns for office ought to be viewed as a direct regulation of speech itself. Justice White firmly disagreed with the Buckley Court's holding on expenditure limitations, explaining that such regulations should be analyzed, not as direct restrictions on speech, but rather as akin to time, place, and manner regulations, which will be upheld "so long as the purposes they serve are legitimate and sufficiently substantial." Id., at 264 (opinion concurring in part and dissenting in part). Although I did not participate in the Court's decision in Buckley, I have since been persuaded that Justice White — who maintained his steadfast opposition to Buckley's view of expenditure limits, see, e.g., Federal Election Comm'n v. National Conservative Political Action Comm., 470 U. S. 480, 507-512 (1985) (dissenting opinion)--was correct. Indeed, it was Buckley that represented a break from 65 years of established practice, as well as a probable departure from the views of the Framers of the relevant provisions of the Constitution itself. See Randall v. Sorrell, 548 U. S. 230, 274, 280-281 (Stevens, J., dissenting). In my view, a number of purposes, both legitimate and substantial, may justify the imposition of reasonable limitations on the expenditures permitted during the course of any single campaign. For one, such limitations would "free candidates and their staffs from the interminable burden of fundraising." Colorado Republican Federal Campaign Comm. v. Federal Election Comm'n, 518 U. S. 604, 649 (1996) (Stevens, J., dissenting). Moreover, the imposition of reasonable limitations would likely have the salutary effect of improving the quality of the exposition of ideas. After all, orderly debate is always more enlightening than a shouting match that awards points on the basis of decibels rather than reasons. Quantity limitations are commonplace in any number of other contexts in which high-value speech occurs. Litigants in this Court pressing issues of the utmost importance to the Nation are allowed only a fixed time for oral debate and a maximum number of pages for written argument. As listeners and as readers, judges need time to reflect on the merits of an issue; repetitious arguments are disfavored and are usually especially unpersuasive. Indeed, experts in the art of advocacy agree that "lawyers go on for too long, and when they do it doesn't help their case."2 It seems to me that Congress is entitled to make the judgment that voters deserve the same courtesy and the same opportunity to reflect as judges; flooding the airwaves with slogans and sound-bites may well do more to obscure the issues than to enlighten listeners. At least in the context of elections, the notion that rules limiting the quantity of speech are just as offensive to the First Amendment as rules limiting the content of speech is plainly incorrect.3 If, as I have come to believe, Congress could attempt to reduce the millionaire candidate's advantage by imposing reasonable limits on all candidates' expenditures, it follows a fortiori that the eminently reasonable scheme before us today survives constitutional scrutiny.II Even accepting the Buckley Court's holding that expenditure limits as such are uniquely incompatible with the First Amendment, it remains my firm conviction that the Millionaire's Amendment represents a good-faith attempt by Congress to regulate, within the bounds of the Constitution, one particularly pernicious feature of many contemporary political campaigns.4 It cannot be gainsaid that the twin rationales at the heart of the Millionaire's Amendment — reducing the importance of wealth as a criterion for public office and countering the perception that seats in the United States Congress are available for purchase by the wealthiest bidder — are important Government interests. It is also evident that Congress, in enacting the provision, crafted a solution that was carefully tailored to those concerns. Davis insists, however, that the Government's interests are insufficiently weighty to justify what he believes are intrusions upon his rights under the First Amendment and the equal protection component of the Fifth Amendment, and that, regardless of the strength of the justifications offered, Congress' solution is not sufficiently tailored to addressing the twin concerns it has identified. His arguments are unpersuasive on all counts.A The thrust of Davis' First Amendment challenge is that by relaxing the contribution limits applicable to the opponent of a self-funding candidate, the Millionaire's Amendment punishes the candidate who chooses to self-fund. Extrapolating from the zero-sum nature of a political race, Davis insists that any benefit conferred upon a self-funder's opponent thereby works a detriment to the self-funding candidate. Accordingly, he argues, the scheme burdens the self-funding candidate's First Amendment right to speak freely and to participate fully in the political process. But Davis cannot show that the Millionaire's Amendment causes him — or any other self-funding candidate — any First Amendment injury whatsoever. The Millionaire's Amendment quiets no speech at all. On the contrary, it does no more than assist the opponent of a self-funding candidate in his attempts to make his voice heard; this amplification in no way mutes the voice of the millionaire, who remains able to speak as loud and as long as he likes in support of his campaign. Enhancing the speech of the millionaire's opponent, far from contravening the First Amendment, actually advances its core principles. If only one candidate can make himself heard, the voter's ability to make an informed choice is impaired.5 And the self-funding candidate's ability to engage meaningfully in the political process is in no way undermined by this provision.6 Even were we to credit Davis' view that the benefit conferred on the self-funding candidate's opponent burdens the self-funder's First Amendment rights, the purposes of the Amendment surely justify its effects. The Court is simply wrong when it suggests that the "governmental interest in eliminating corruption or the perception of corruption," ante, at 14, is the sole governmental interest sufficient to support campaign finance regulations. See ante, at 15-17. It is true, of course, that in upholding the Federal Election Campaign Act of 1971's (FECA) limits on the size of contributions to political campaigns, the Buckley Court held that preventing both actual corruption and the appearance of corruption were Government interests of sufficient weight that they justified any infringement upon First Amendment freedoms that resulted from FECA's contribution limits; the Court explained that, "[t]o the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. ... Of almost equal concern ... is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions." 424 U. S., at 26-27. It is also true that the Court found that same interest insufficient to justify FECA's expenditure limitations. Id., at 45-46, 52-56. But it does not follow that the Buckley Court concluded that only the interest in combating corruption and the appearance of corruption can justify congressional regulation of campaign financing. Indeed, we have long recognized the strength of an independent governmental interest in reducing both the influence of wealth on the outcomes of elections, and the appearance that wealth alone dictates those results. In case after case, we have held that statutes designed to protect against the undue influence of aggregations of wealth on the political process — where such statutes are responsive to the identified evil — do not contravene the First Amendment. See, e.g., Austin v. Michigan Chamber of Commerce, 494 U. S. 652, 660 (1990) (upholding statute designed to combat "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas"); Federal Election Comm'n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 257 (1986) ("Th[e] concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas. ... Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace"); cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969) (upholding constitutionality of several components of the FCC's "fair coverage" requirements, and explaining that "[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market"). Although the focus of our cases has been on aggregations of corporate rather than individual wealth, there is no reason that their logic — specifically, their concerns about the corrosive and distorting effects of wealth on our political process — is not equally applicable in the context of individual wealth. For, as we explained in McConnell, "Congress' historical concern with the 'political potentialities of wealth' and their 'untoward consequences for the democratic process'... has long reached beyond corporate money," 540 U. S., at 116 (quoting United States v. Automobile Workers, 352 U. S. 567, 577-578 (1957)). Minimizing the effect of concentrated wealth on our political process, and the concomitant interest in addressing the dangers that attend the perception that political power can be purchased, are, therefore, sufficiently weighty objectives to justify significant congressional action. And, not only was Congress motivated by proper and weighty goals in crafting the Millionaire's Amendment, the details of the scheme it devised are genuinely responsive to the problems it identified. The statute's "Opposition Personal Funds Amount" formula permits a self-funding candidate to spend as much money as he wishes, while taking into account fundraising by the relevant campaigns; it thereby ensures that a candidate who happens to enjoy a significant fundraising advantage against a self-funding opponent does not reap a windfall as a result of the enhanced contribution limits. Rather, the self-funder's opponent may avail himself of the enhanced contribution limits only until parity is achieved, at which point he becomes again ineligible for contributions above the normal maximum. See §§441a-1(a)(1)(A)-(C). It seems uncontroversial that "there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other." Sunstein, Political Equality and Unintended Consequences, 94 Colum. L. Rev. 1390 (1994). In light of that clear truth, Congress' carefully crafted attempt to reduce the distinct advantages enjoyed by wealthy candidates for congressional office does not offend the First Amendment.B Davis' equal protection argument, which the Court finds unnecessary to address, ante, at 18, n. 9, fares no better. He claims that by permitting only the self-funder's opponent to avail himself of the increased contribution limits, the statute creates an unwarranted disparity between the self-funder and his opponent. But, as we explained in McConnell, "Congress is fully entitled to consider ... real-world differences ... when crafting a system of campaign finance regulation." 540 U. S., at 188. And Buckley itself acknowledged, in the course of upholding FECA's public financing scheme, that "the Constitution does not require Congress to treat all declared candidates the same." 424 U. S., at 97. It blinks reality to contend that the millionaire candidate is situated identically to a nonmillionaire opponent, and Congress was under no obligation to indulge any such fiction. Accordingly, Davis has failed to establish that he was deprived of the equal protection guarantees of the Fifth Amendment.III In sum, I share Judge Wright's view that nothing in the Constitution "prevents us, as a political community, from making certain modest but important changes in the kind of process we want for selecting our political leaders," Wright, Politics and the Constitution: Is Money Speech? 85 Yale L. J. 1001, 1005 (1976). In my judgment, the Millionaire's Amendment represents just such a change. I therefore respectfully dissent.JACK DAVIS, APPELLANT v. FEDERAL ELECTION COMMISSIONon appeal from the united states district court for the district of columbia[June 26, 2008] Justice Ginsburg, with whom Justice Breyer joins, concurring in part and dissenting in part. Agreeing with the Court that appellant Jack Davis has standing and that this case is not moot, I join Part II of the Court's opinion. On the merits, however, I part ways with the Court. The District Court's careful and persuasive opinion, as I see it, correctly concluded that the provisions challenged in this case are entirely consistent with Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), and all other relevant decisions of this Court. I therefore join Part II of Justice Stevens' opinion. I resist joining other portions of Justice Stevens' opinion, however, to the extent that they address Buckley's distinction between expenditure and contribution limits and, correspondingly, Buckley's holding that expenditure limits impose "direct quantity restrictions on political communication," id., at 18. Appellee Federal Election Commission has not asked us to overrule Buckley; consequently, the issue has not been briefed. Convinced that the challenged statute encounters no constitutional shoal under our precedents, I would leave reconsideration of Buckley for a later day and case.FOOTNOTESFootnote 1 All undesignated references in this opinion to 2 U. S. C. are to the 2006 edition.Footnote 2 These limits are adjusted for inflation every two years. 2 U. S. C. §441a(c).Footnote 3 BCRA §319(a) is set out in an Appendix to this opinion. Although what we refer to as §§319(a) and (b) are actually §315A(a) and (b) of the Federal Election Campaign Act of 1971, which were added to that Act by BCRA §319(a), we follow the convention of the parties in making reference to §§319(a) and (b).Footnote 4 BCRA §304 similarly regulates self-financed Senate bids. 116 Stat. 97, 2 U. S. C. §441a(i).Footnote 5 The OPFA is calculated as follows. For each candidate, expenditures of personal funds are added to 50% of the funds raised for the election at issue measured at designated dates in the year preceding the election. The resulting figures are compared, and if the difference is greater than $350,000, the asymmetrical limits take effect. See §§441a-1(a)(1), (2).Footnote 6 In light of this conclusion, we need not decide whether the threat of an FEC enforcement action for alleged 2004 violations would be sufficient to keep this controversy alive.Footnote 7 Even if §319(a) were characterized as a limit on contributions rather than expenditures, it is doubtful whether it would survive. A contribution limit involving " ' "significant interference" with associational rights' " must be " ' "closely drawn" ' " to serve a " ' "sufficiently important interest." ' " McConnell v. Federal Election Comm'n, 540 U. S. 93, 136 (2003). For the reasons explained infra, at 15-16, the chief interest proffered in support of the asymmetrical contribution scheme — leveling electoral opportunities — cannot justify the infringement of First Amendment interests.Footnote 8 Justice Stevens would revisit and reject Buckley's treatment of expenditure limits. Post, at 2-4 (opinion concurring in part and dissenting in part). The Government has not urged us to take that step, and in any event, Justice Stevens' proposal is unsound. He suggests that restricting the quantity of campaign speech would improve the quality of that speech, but it would be dangerous for the Government to regulate core political speech for the asserted purpose of improving that speech. And in any event, there is no reason to suppose that restricting the quantity of campaign speech would have the desired effect.Footnote 9 Because we conclude that §§319(a) and (b) violate the First Amendment, we need not address Davis' claim that they also violate the equal protection component of the Fifth Amendment's Due Process Clause.FOOTNOTESFootnote 1 The Buckley Court invalidated two different types of limits on campaign expenditures: limits on the amount of "personal or family resources" a candidate could spend on his own campaign, 424 U. S., at 51-54, and overall limits on campaign expenditures, id., at 54-60. In my judgment the Court was mistaken in striking down both of those provisions; I treat them together here.Footnote 2 Brust, A Voice for the Write: Tips on Making Your Case From a Supremely Reliable Source, 94 A. B. A. J. 37 (May 2008) (interview with Justice Scalia and Bryan Garner).Footnote 3 The Court is of course correct that "it would be dangerous for the Government to regulate core political speech for the asserted purpose of improving that speech." Ante, at 17, n. 8. But campaign expenditures are not themselves "core political speech"; they merely may enable such speech (as well as its repetition ad nauseam). In my judgment, it is simply not the case that the First Amendment "provides the same measure of protection" to the use of money to enable speech as it does to speech itself. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 398 (2000) (Stevens, J., concurring).Footnote 4 I note at the outset of this discussion, however, that I agree with the Court's conclusion that Davis has standing to challenge §§319(a) and (b), and that the case is not moot; I therefore join Part II of the Court's opinion.Footnote 5 "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." Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam).Footnote 6 The self-funder retains the choice to structure his campaign's funding as he pleases: He may choose to fund his own campaign subject to no limitations whatsoever and still accept limited donations from supporters; alternatively, he may forgo self-financing and rely on contributions alone, at the same level as his opponent. In neither event is his engagement in the political process in any sense impeded. |
0 | PER CURIAM.In Zant v. Stephens, , we held that a death sentence supported by multiple aggravating circumstances need not always be set aside if one aggravator is found to be invalid. Id., at 886-888. We noted that our holding did not apply in States in which the jury is instructed to weigh aggravating circumstances against mitigating circumstances in determining whether to impose the death penalty. Id., at 874, n. 12, 890. In this case, the Virginia Supreme Court and the Court of Appeals for the Fourth Circuit construed Zant as establishing a rule that in nonweighing States a death sentence may be upheld on the basis of one valid aggravating circumstance, regardless of the reasons for which another aggravating factor may have been found to be invalid. Because this interpretation of our holding in Zant is incorrect, we now grant the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari and vacate the judgment of the Court of Appeals.IPetitioner Tuggle was convicted of murder in Virginia state court. At his sentencing hearing, the Commonwealth presented unrebutted psychiatric testimony that petitioner demonstrated "`a high probability of future dangerousness.'" Tuggle v. Commonwealth, 230 Va. 99, 107, 334 S.E.2d 838, 844 (1985), cert. denied, Tuggle v. Virginia, . After deliberations, the jury found that the Commonwealth had established Virginia's two statutory aggravating [ TUGGLE v. NETHERLAND, ___ U.S. ___ (1995), 2] circumstances, "future dangerousness" and "vileness"; it exercised its discretion to sentence petitioner to death.1 230 Va., at 108-109, 334 S.E.2d, at 844-845.Shortly after the Virginia Supreme Court affirmed petitioner's conviction and sentence, Tuggle v. Commonwealth, 228 Va. 493, 323 S.E.2d 539 (1984), we held in Ake v. Oklahoma, , that when the prosecutor presents psychiatric evidence of an indigent defendant's future dangerousness in a capital sentencing proceeding, due process requires that the State provide the defendant with the assistance of an independent psychiatrist. Id., at 83-84. Because petitioner had been denied such assistance, we vacated the State Supreme Court's judgment and remanded for further consideration in light of Ake. Tuggle v. Virginia, .On remand, the Virginia Supreme Court invalidated the future dangerousness aggravating circumstance because of the Ake error. See Tuggle v. Commonwealth, 230 Va., at 108-111, 334 S.E.2d, at 844-846. The court nevertheless reaffirmed petitioner's death sentence, reasoning that Zant permitted the sentence to survive on the basis of the vileness aggravator. Id., at 110-111, 334 S.E.2d, at 845-846. The Court of Appeals agreed with this analysis on federal habeas review, Tuggle v. Thompson, 57 F.3d 1356, 1362-1363 (CA4 1995), as it had in the past.2 Quoting the Virginia Supreme Court, the Court of Appeals stated:"`When a jury makes separate findings of specific statutory aggravating circumstances, any of which could support a sentence of death, and one of the circumstances subsequently is invalidated, the remaining valid circumstance, or [ TUGGLE v. NETHERLAND, ___ U.S. ___ (1995), 3] circumstances, will support the sentence.'" Id., at 1363 (quoting 230 Va., at 110 and citing Zant, supra).IIOur opinion in Zant stressed that the evidence offered to prove the invalid aggravator was "properly adduced at the sentencing hearing and was fully subject to explanation by the defendant." 462 U.S., at 887. As we explained:"[I]t is essential to keep in mind the sense in which [the stricken] aggravating circumstance is `invalid.' ... [T]he invalid aggravating circumstance found by the jury in this case was struck down ... because the Georgia Supreme Court concluded that it fails to provide an adequate basis for distinguishing a murder case in which the death penalty may be imposed from those cases in which such a penalty may not be imposed. The underlying evidence is nevertheless fully admissible at the sentencing phase." Id., at 885-886 (internal citations omitted). Zant was thus predicated on the fact that even after elimination of the invalid aggravator, the death sentence rested on firm ground. Two unimpeachable aggravating factors remained and there was no claim that inadmissible evidence was before the jury during its sentencing deliberations or that the defendant had been precluded from adducing relevant mitigating evidence.In this case, the record does not provide comparable support for petitioner's death sentence. The Ake error prevented petitioner from developing his own psychiatric evidence to rebut the Commonwealth's evidence and to enhance his defense in mitigation. As a result, the Commonwealth's psychiatric evidence went unchallenged, which may have unfairly increased its persuasiveness in the eyes of the jury. We may assume, as the Virginia Supreme Court and Court of Appeals found, that petitioner's psychiatric evidence would not have influenced the jury's determination concerning vileness. Nevertheless, the absence of such evidence may well have [ TUGGLE v. NETHERLAND, ___ U.S. ___ (1995), 4] affected the jury's ultimate decision, based on all of the evidence before it, to sentence petitioner to death rather than life imprisonment.Although our holding in Zant supports the conclusion that the invalidation of one aggravator does not necessarily require that a death sentence be set aside, that holding does not support the quite different proposition that the existence of a valid aggravator always excuses a constitutional error in the admission or exclusion of evidence. The latter circumstance is more akin to the situation in Johnson v. Mississippi, , in which we held that Zant does not apply to support a death sentence imposed by a jury that was allowed to consider materially inaccurate evidence, id., at 590, than to Zant itself. Because the Court of Appeals misapplied Zant in this case, its judgment must be vacated.IIIHaving found no need to remedy the Ake error in petitioner's sentencing, the Virginia Supreme Court did not consider whether, or by what procedures, the sentence might be sustained or reimposed; and neither the state court nor the Court of Appeals addressed whether harmless-error analysis is applicable to this case. Because this Court customarily does not address such an issue in the first instance, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. So ordered. |
7 | Petitioner company (Warren) asked the Federal Energy Regulatory Commission (FERC) to renew federal licenses for five of the hydroelectric dams it operates on a Maine river to generate power for its paper mill. Each dam impounds water, which is then run through turbines and returned to the riverbed, passing around a section of the river. Under protest, Warren applied for water quality certifications from respondent Maine Board of Environmental Protection pursuant to §401 of the Clean Water Act, which requires state approval of "any activity" "which may result in any discharge into the [Nation's] navigable waters." FERC licensed the dams subject to compliance with those certifications, which require Warren to maintain a minimum stream flow and to allow passage for certain fish and eels. After losing state administrative appeals, Warren filed suit in a state court, which rejected Warren's claim that its dams do not result in a "discharge" under §401. The State Supreme Judicial Court affirmed.Held: Because a dam raises a potential for a discharge, §401 is triggered and state certification is required. Pp. 3-15. (a) The Clean Water Act does not define "discharge," but provides that the term "when used without qualification includes a discharge of a pollutant, and a discharge of pollutants," 33 U. S. C. §1362(16). But "discharge" is presumably broader, else superfluous, and since it is neither defined nor a term of art, it should be construed "in accordance with its ordinary or natural meaning," FDIC v. Meyer, 510 U. S. 471, 476. When applied to water, discharge commonly means "flowing or issuing out," Webster's New International Dictionary 742. This Court has consistently intended that meaning in prior water cases, including the only case focused on §401, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, in which no one questioned that the discharge of water from a dam fell within §401's ambit. The Environmental Protection Agency and FERC have also regularly read "discharge" to cover releases from hydroelectric dams. Pp. 3-6. (b) Warren's three arguments for avoiding this common reading are unavailing. The canon noscitur a sociis--"a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U. S. 561, 575 — does not apply here. Warren claims that since "discharge" is keeping company with "discharge" defined as adding one or more pollutants, see §1362(12), discharge standing alone must also require the addition of something foreign to the water. This argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage of language this way. Warren also relies on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, but that case is not on point. It addressed §402, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Thus, that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401. Finally, the Clean Water Act's legislative history, if it means anything, goes against Warren's reading of "discharge." Pp. 6-12. (c) Warren's arguments against reading "discharge" in its common sense also miss the forest for the trees. Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. §1251(a), the "national goal" being to achieve "water quality [providing] for the protection and propagation of fish ... and ... for recreation," §1251(a)(2). To do this, the Act deals with "pollution" generally, see §1251(b), which it defines as "the man-made or man-induced alteration of the [water's] chemical, physical, biological, and radiological integrity," §1362(19). Because the alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines, changes in the river's flow, movement, and circulation fall within a State's legitimate legislative business. State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution. Reading §401 to give "discharge" its common and ordinary meaning preserves the state authority apparently intended. Pp. 12-15.2005 ME 27, 868 A. 2d 210, affirmed. Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined, and in which Scalia, J., joined as to all but Part III-C.S. D. WARREN COMPANY, PETITIONER v. MAINEBOARD OF ENVIRONMENTAL PROTECTION et al.on writ of certiorari to the supreme judicial courtof maine[May 15, 2006] Justice Souter delivered the opinion of the Court.** The issue in this case is whether operating a dam to produce hydroelectricity "may result in any discharge into the navigable waters" of the United States. If so, a federal license under §401 of the Clean Water Act requires state certification that water protection laws will not be violated. We hold that a dam does raise a potential for a discharge, and state approval is needed.I The Presumpscot River runs through southern Maine from Sebago Lake to Casco Bay, and in the course of its 25 miles petitioner, S. D. Warren Company, operates several hydropower dams to generate electricity for its paper mill. Each dam creates a pond, from which water funnels into a "power canal," through turbines, and back to the riverbed, passing around a section of the river just below the impoundment. It is undisputed that since 1935, Warren has needed a license to operate the dams, currently within the authority of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act. 16 U. S. C. §§817(1), 792; see also Public Utility Act of 1935, §210, 49 Stat. 846. FERC grants these licenses for periods up to 50 years, 16 U. S. C. §799, after a review that looks to environmental issues as well as the rising demand for power, §797(e). Over 30 years ago, Congress enacted a specific provision for licensing an activity that could cause a "discharge" into navigable waters; a license is conditioned on a certification from the State in which the discharge may originate that it will not violate certain water quality standards, including those set by the State's own laws. See Water Quality Improvement Act of 1970, §103, 84 Stat. 108. Today, this requirement can be found in §401 of the Clean Water Act, 86 Stat. 877, codified at 33 U. S. C. §1341: "Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable water[s] shall provide the licensing or permitting agency a certification from the State in which the discharge originates ... ." §1341(a)(1). "Any certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with [§§1311, 1312, 1316, and 1317] and with any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section."1 §1341(d). In 1999, Warren sought to renew federal licenses for five of its hydroelectric dams. It applied for water quality certifications from the Maine Department of Environmental Protection (the state agency responsible for what have come to be known as "401 state certifications"), but it filed its application under protest, claiming that its dams do not result in any "discharge into" the river triggering application of §401. The Maine agency issued certifications that required Warren to maintain a minimum stream flow in the bypassed portions of the river and to allow passage for various migratory fish and eels. When FERC eventually licensed the five dams, it did so subject to the Maine conditions, and Warren continued to deny any need of §401 state certification. After appealing unsuccessfully to Maine's administrative appeals tribunal, the Board of Environmental Protection, Warren filed this suit in the State's Cumberland County Superior Court. That court rejected Warren's argument that its dams do not result in discharges, and the Supreme Judicial Court of Maine affirmed. S. D. Warren Co. v. Board of Environmental Protection, 2005 ME 27, 868 A. 2d 210. We granted certiorari, 546 U. S. ___ (2005), and now affirm as well.II The dispute turns on the meaning of the word "discharge," the key to the state certification requirement under §401.2 The Act has no definition of the term, but provides that "[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants."3 33 U. S. C. §1362(16). It does define "discharge of a pollutant" and "discharge of pollutants," as meaning "any addition of any pollutant to navigable waters from any point source." §1362(12). But "discharge" presumably is broader, else superfluous, and since it is neither defined in the statute nor a term of art, we are left to construe it "in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U. S. 471, 476 (1994). When it applies to water, "discharge" commonly means a "flowing or issuing out," Webster's New International Dictionary 742 (2d ed. 1949); see also ibid. ("[t]o emit; to give outlet to; to pour forth; as, the Hudson discharges its waters into the bay"), and this ordinary sense has consistently been the meaning intended when this Court has used the term in prior water cases. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 364 (1989) (describing a dam's " 'multiport' structure, which will permit discharge of water from any of five levels"); Arizona v. California, 373 U. S. 546, 619, n. 25 (1963) (Harlan, J., dissenting in part) (quoting congressional testimony regarding those who " 'take ... water out of the stream which has been discharged from the reservoir' "); United States v. Arizona, 295 U. S. 174, 181 (1935) ("Parker Dam will intercept waters discharged at Boulder Dam"). In fact, this understanding of the word "discharge" was accepted by all Members of the Court sitting in our only other case focused on §401 of the Clean Water Act, PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700 (1994). At issue in PUD No. 1 was the State of Washington's authority to impose minimum stream flow rates on a hydroelectric dam, and in posing the question presented, the Court said this: "There is no dispute that petitioners were required to obtain a certification from the State pursuant to §401. Petitioners concede that, at a minimum, the project will result in two possible discharges — the release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity." Id., at 711.The Pud No. 1 petitioners claimed that a state condition imposing a stream flow requirement on discharges of water from a dam exceeded the State's §401 authority to prevent degradation of water quality, but neither the parties nor the Court questioned that the "discharge of water" from the dam was a discharge within the ambit of §401. Ibid. And although the Court's opinion made no mention of the dam as adding anything to the water, the majority's use of the phrase "discharge of water" drew no criticism from the dissent, which specifically noted that "[t]he term 'discharge' is not defined in the [Clean Water Act] but its plain and ordinary meaning suggests 'a flowing or issuing out,' or 'something that is emitted.' " Id., at 725 (opinion of Thomas, J.) (quoting Webster's Ninth New Collegiate Dictionary 360 (1991)). In resort to common usage under §401, this Court has not been alone, for the Environmental Protection Agency (EPA) and FERC have each regularly read "discharge" as having its plain meaning and thus covering releases from hydroelectric dams. See, e.g., EPA, Water Quality Standards Handbook §7.6.3, p. 7-10 (2d ed. 1994) ("EPA has identified five Federal permits and/or licenses that authorize activities that may result in a discharge to the waters[, including] licenses required for hydroelectric projects issued under the Federal Power Act"); FPL Energy Maine Hydro LLC, 111 FERC ¶61,104, P. 61,505 (2005) (rejecting, in a recent adjudication, the argument that Congress "used the term 'discharge' as nothing more than a shorthand expression for 'discharge of a pollutant or pollutants' ").4 Warren is, of course, entirely correct in cautioning us that because neither the EPA nor FERC has formally settled the definition, or even set out agency reasoning, these expressions of agency understanding do not command deference from this Court. See Gonzales v. Oregon, 546 U. S. ___, ___ (2006) (slip op., at 11) ("Chevron deference ... is not accorded merely because the statute is ambiguous and an administrative official is involved"); Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). But even so, the administrative usage of "discharge" in this way confirms our understanding of the everyday sense of the term. III Warren makes three principal arguments for reading the term "discharge" differently from the ordinary way. We find none availing.A The first involves an interpretive canon we think is out of place here. The canon, noscitur a sociis, reminds us that "a word is known by the company it keeps," Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995), and is invoked when a string of statutory terms raises the implication that the "words grouped in a list should be given related meaning," Dole v. Steelworkers, 494 U. S. 26, 36 (1990) (internal quotation marks omitted); see also Beecham v. United States, 511 U. S. 368, 371 (1994) ("That several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well"). Warren claims that the canon applies to §502(16) of the Clean Water Act, which provides that "[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, and a discharge of pollutants." 33 U. S. C. §1362(16). Warren emphasizes that the "include[d]" terms, pollutant discharges, are themselves defined to require an "addition" of pollutants to water. §1362(12). Since "discharge" pure and simple is keeping company with "discharge" defined as adding one or more pollutants, Warren says "discharge" standing alone must require the addition of something foreign to the water into which the discharge flows. And because the release of water from the dams adds nothing to the river that was not there above the dams, Warren concludes that water flowing out of the turbines cannot be a discharge into the river.5 The problem with Warren's argument is that it purports to extrapolate a common feature from what amounts to a single item (discharge of a pollutant plus the plural variant involving more than one pollutant). See Beecham, supra, at 371. The argument seems to assume that pairing a broad statutory term with a narrow one shrinks the broad one, but there is no such general usage; giving one example does not convert express inclusion into restrictive equation, and noscitur a sociis is no help absent some sort of gathering with a common feature to extrapolate. It should also go without saying that uncritical use of interpretive rules is especially risky in making sense of a complicated statute like the Clean Water Act, where technical definitions are worked out with great effort in the legislative process. Cf. H. R. Rep. No. 92-911, p. 125 (1972) ("[I]t is extremely important to an understanding of [§402] to know the definition of the various terms used and acareful reading of the definitions ... is recommended.Of particular significance [are] the words 'discharge of pollutants' ").B Regardless, Warren says the statute should, and even must, be read its way, on the authority of South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95 (2004). But that case is not on point. Miccosukee addressed §402 of the Clean Water Act, not §401, and the two sections are not interchangeable, as they serve different purposes and use different language to reach them. Section 401 recast pre-existing law and was meant to "continu[e] the authority of the State ... to act to deny a permit and thereby prevent a Federal license or permit from issuing to a discharge source within such State." S. Rep. No. 92-414, p. 69 (1971). Its terms have a broad reach, requiring state approval any time a federally licensed activity "may" result in a discharge ("discharge" of course being without any qualifiers here), 33 U. S. C. §1341(a)(1), and its object comprehends maintaining state water quality standards, see n. 1, supra. Section 402 has a historical parallel with §401, for the legislative record suggests that it, too, was enacted to consolidate and ease the administration of some predecessor regulatory schemes, see H. R. Rep. No. 92-911, at 124-125. But it contrasts with §401 in its more specific focus. It establishes what Congress called the National Pollutant Discharge Elimination System, requiring a permit for the "discharge of any pollutant" into the navigable waters of the United States, 33 U. S. C. §1342(a). The triggering statutory term here is not the word "discharge" alone, but "discharge of a pollutant," a phrase made narrower by its specific definition requiring an "addition" of a pollutant to the water. §1362(12). The question in Miccosukee was whether a pump between a canal and an impoundment produced a "discharge of a pollutant" within the meaning of §402, see 541 U. S., at 102-103, and the Court accepted the shared view of the parties that if two identified volumes of water are "simply two parts of the same water body, pumping water from one into the other cannot constitute an 'addition' of pollutants," id., at 109. Miccosukee was thus concerned only with whether an "addition" had been made (phosphorous being the substance in issue) as required by the definition of the phrase "discharge of a pollutant"; it did not matter under §402 whether pumping the water produced a discharge without any addition. In sum, the understanding that something must be added in order to implicate §402 does not explain what suffices for a discharge under §401.6C Warren's third argument for avoiding the common meaning of "discharge" relies on the Act's legislative history, but we think that if the history means anything it actually goes against Warren's position. Warren suggests that the word "includes" in the definition of "discharge" should not be read with any spacious connotation, because the word was simply left on the books inadvertently after a failed attempt to deal specifically with "thermal discharges." As Warren describes it, several Members of Congress recognized that "heat is not as harmful as what most of us view as 'pollutants,' because it dissipates quickly in most bodies of receiving waters," 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 273 (1973) (remarks of Cong. Clark), and they proposed to regulate thermal discharges less stringently than others. They offered an amendment to exclude thermal discharges from the requirements under §402, but they also wanted to ensure that thermal discharges remained within the scope of §401 and so sought to include them expressly in the general provision covering "discharge." See id., at 1069-1070, 1071. The proposed definition read, "[t]he term 'discharge' when used without qualification includes a discharge of a pollutant, a discharge of pollutants, and a thermal discharge." Id., at 1071. Of course, Congress omitted the reference to "thermal discharge," and settled on the definition we have today. See Federal Water Pollution Control Act Amendments of 1972, §502(16), 86 Stat. 887. Warren reasons that once Congress abandoned the special treatment for thermal pollutants, it merely struck the words "thermal discharge" from 33 U. S. C. §1362(16) and carelessly left in the word "includes." Thus, Warren argues, there is no reason to assume that describing "discharge" as including certain acts was meant to extend the reach of §401 beyond acts of the kind specifically mentioned;7 the terminology of §401 simply reflects a failed effort to narrow the scope of §402. This is what might be called a lawyer's argument. We will assume that Warren is entirely correct about the impetus behind the failed attempt to rework the scope of pollutant discharge under §402. It is simply speculation, though, to say that the word "includes" was left in the description of a "discharge" by mere inattention, and for reasons given in Part IV of this opinion it is implausible speculation at that. But if we confine our view for a moment strictly to the drafting history, the one thing clear is that if Congress had left "thermal discharge" as an included subclass of a "discharge" under §502(16), Warren would have a stronger noscitur a sociis argument. For a thermal discharge adds something, the pollutant heat, see n. 3, supra. Had the list of examples of discharge been lengthened to include thermal discharges, there would have been at least a short series with the common feature of addition. As it stands, however, the only thing the legislative history cited by Warren demonstrates is the congressional rejection of language that would have created a short series of terms with a common implication of an addition. Warren's theory, moreover, has the unintended consequence of underscoring that Congress probably distinguished the terms "discharge" and "discharge of pollutants" deliberately, in order to use them in separate places and to separate ends. Warren hypothesizes that Congress attempted to tinker with the definition of "discharge" because it wanted to subject thermal discharges to the requirements of §401, but not §402. But this assumption about Congress's motives only confirms the point that when Congress fine-tunes its statutory definitions, it tends to do so with a purpose in mind. See Bates v. United States, 522 U. S. 23, 29-30 (1997) (if "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 thedisparate inclusion or exclusion" (internal quotation marks omitted)).IV Warren's arguments against reading the word "discharge" in its common sense fail on their own terms. 8 They also miss the forest for the trees. Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters," 33 U. S. C. §1251(a); see also PUD No. 1, 511 U. S., at 714, the "national goal" being to achieve "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water." 33 U. S. C. §1251(a)(2). To do this, the Act does not stop at controlling the "addition of pollutants," but deals with "pollution" generally, see §1251(b), which Congress defined to mean "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water." §1362(19). The alteration of water quality as thus defined is a risk inherent in limiting river flow and releasing water through turbines. Warren itself admits that its dams "can cause changes in the movement, flow, and circulation of a river ... caus[ing] a river to absorb less oxygen and to be less passable by boaters and fish." Brief for Petitioner 23. And several amici alert us to the chemical modification caused by the dams, with "immediate impact on aquatic organisms, which of course rely on dissolved oxygen in water to breathe." Brief for Trout Unlimited et al. as Amici Curiae 13; see also, e.g., Brief for National Wildlife Federation et al. as Amici Curiae 6 (explaining that when air and water mix in a turbine, nitrogen dissolves in the water and can be potentially lethal to fish). Then there are the findings of the Maine Department of Environmental Protection that led to this appeal:"The record in this case demonstrates that Warren's dams have caused long stretches of the natural river bed to be essentially dry and thus unavailable as habitat for indigenous populations of fish and other aquatic organisms; that the dams have blocked the passage of eels and sea-run fish to their natural spawning and nursery waters; that the dams have eliminated the opportunity for fishing in long stretches of river, and that the dams have prevented recreational access to and use of the river." In re S. D. Warren Co., Maine Board of Environmental Protection (2003), in App. to Pet. for Cert. A-49. Changes in the river like these fall within a State's legitimate legislative business, and the Clean Water Act provides for a system that respects the States' concerns. See 33 U. S. C. §1251(b) ("It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution"); §1256(a) (federal funds for state efforts to prevent pollution); see also §1370 (States may impose standards on the discharge of pollutants that are stricter than federal ones). State certifications under §401 are essential in the scheme to preserve state authority to address the broad range of pollution, as Senator Muskie explained on the floor when what is now §401 was first proposed:"No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements." 116 Cong. Rec. 8984 (1970).These are the very reasons that Congress provided the States with power to enforce "any other appropriate requirement of State law," 33 U. S. C. §1341(d), by imposing conditions on federal licenses for activities that may result in a discharge, ibid. Reading §401 to give "discharge" its common and ordinary meaning preserves the state authority apparently intended. The judgment of the Supreme Judicial Court of Maine is therefore affirmed.It is so ordered.FOOTNOTESFootnote ** Justice Scalia joins all but Part III-C of this opinion.Footnote 1 The statutes cross-referenced go to effluent limitations and other limitations, 33 U. S. C. §§1311, 1312, standards of performance, §1316, and toxic effluent standards, §1317. As we have explained before, "state water quality standards adopted pursuant to §303 [of the Clean Water Act, 33 U. S. C. §1313,] are among the 'other limitations' with which a State may ensure compliance through the §401 certification process." PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology, 511 U. S. 700, 713 (1994).Footnote 2 No one disputes that the Presumpscot River is a navigable water of the United States.Footnote 3 The term "pollutant" is defined in the Act to mean "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water." 33 U. S. C. §1362(6).Footnote 4 Warren relies on a document from the EPA as a counterexample of the EPA's position in this regard. See Memorandum from Ann R. Klee, EPA General Counsel et al., to Regional Administrators, regarding "Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers" (Aug. 5, 2005), available at http://www.epa.gov/ogc/documents/water_transfers.pdf (as visited Apr. 13, 2006, and available in Clerk of Court's case file). The memorandum does not help Warren, however; it interprets §402 of the Clean Water Act, not §401, and construes the statutory phrase "discharge of a pollutant," which, as explained below, implies a meaning different under the statute from the word "discharge" used alone. The memorandum, in fact, declares that "[i]t does not address any ... terms under the statute other than 'addition.' " Id., at 18.Footnote 5 We note that the Supreme Judicial Court of Maine accepted the assertion that "[a]n 'addition' is the fundamental characteristic of any discharge." 2005 Me 27, ¶11, 868 A. 2d 210, 215. It then held that Warren's dams add to the Presumpscot River because the water "los[es its] status as waters of the United States" when diverted from its natural course, and becomes an addition to the waters of the United States when redeposited into the river. 868 A. 2d, at 216 (emphasis deleted). We disagree that an addition is fundamental to any discharge, nor can we agree that one can denationalize national waters by exerting private control over them. Cf. United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 69 (1913) ("[T]hat the running water in a great navigable stream is capable of private ownership is inconceivable"). Thus, though we affirm the Maine judgment, we do so on different reasoning.Footnote 6 The fact that the parties in Miccosukee conceded that the water being pumped was polluted does not transform the Court's analysis from one centered on the word "addition" to one centered on the word "discharge." Before Miccosukee, one could have argued that transferring polluted water from a canal to a connected impoundment constituted an "addition." Miccosukee is at odds with that construction of the statute, but it says nothing about whether the transfer of polluted water from the canal to the impoundment constitutes a "discharge." Likewise, we are not persuaded by Warren's claim that the word "into" somehow changes the meaning of the word "discharge" so as to require an addition. See Reply Brief for Petitioner 1-2 ("However one might read the lone word 'discharge' by itself, the complete statutory phrase 'discharge into the navigable waters' entails the introduction of something into the waters"). The force of this argument escapes us, since one can easily refer to water being poured or discharged out of one place into another without implying that an addition of some hitherto unencountered mixture or quality of water is made. Indeed, the preposition "into" was used without connoting an addition in the Miccosukee analogy cited by Warren. See 541 U. S., at 110 ("[I]f one takes a ladle of soup from a pot ... and pours it back into the pot, one has not 'added' soup or anything else to the pot" (internal quotation marks and brackets omitted)).Footnote 7 Warren is hesitant to follow its own logic to completion by simply claiming that §401 covers nothing but what §502(16) mentions, the discharge of a pollutant or pollutants.Footnote 8 Warren briefly makes another argument for disregarding the plain meaning of the word "discharge," relying on §511(c)(2) of the Clean Water Act, 33 U. S. C. §1371(c)(2). This section addresses the intersection of the Act with another statute, the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. §4321 et seq. NEPA "imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions." Department of Transportation v. Public Citizen, 541 U. S. 752, 756-757 (2004). Section 511(c)(2) makes the point that nothing in NEPA authorizes any federal agency "authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant" to review "any effluent limitation or other requirement established pursuant to this chapter or the adequacy of any certification under [§401] of this title." 33 U. S. C. §1371(c)(2). Warren argues that reading §401 to cover discharges generally would preclude duplicative NEPA review of certifications involving pollutant discharges, but allow such review of those involving nonpollutant discharges. But Warren overlooks the fact that "discharge of a pollutant" is used in §511(c)(2) in the course of identifying the agency, not the activity to be certified. Whether a §401 certification involves an activity that discharges pollutants or one that simply discharges, FERC (as an agency that may be described, always, as one with "author[ity] to license or permit the conduct of any activity which may result in the discharge of a pollutant," ibid.) may not review it. Thus, nothing in §511(c)(2) is disturbed by our holding that hydroelectric dams require §401 state certifications. It is still the case that, when a State has issued a certification covering a discharge that adds no pollutant, no federal agency will be deemed to have authority under NEPA to "review" any limitations or the adequacy of the §401 certification. |
7 | [ Halliburton Oil Well Cementing Co. v. Walker Mr.Earl Babcock, of Duncan, Okl. (Harry C. Robb, of Washington, D.C., on the brief), for petitioner. Mr. Harold W. Mattingly, of Los Angeles, Cal., for respondents. Mr. Justice BLACK delivered the opinion of the Court. Cranford P. Walker, owner of Patent No. 2,156,519, and the other respondents, licensees under the patent, brought this suit in a federal district court alleging that petitioner, Halliburton Oil Well Cementing Company, had infringed certain of the claims of the Walker patent. The district court held the claims in issue valid and infringed by Halliburton. The circuit court of appeals affirmed, 9 Cir., 146 F.2d 817, and denied Halliburton's petition for rehearing. 149 F.2d 896. Petitioner's application to this Court for certiorari urged, among other grounds, that the claims held valid failed to make the 'full, clear, concise, and exact' description of the alleged invention required by Rev.Stat. 4888C. 33, 35 U.S.C.A. 33,1 as that statute was interpreted by us in General Electric Co. v. Wabash Appliance Corporation, .2 This statutory requirement of distinctness and certainty in claims is important in patent law. We granted certiorari to consider whether it was correctly applied in this case. .3 The patent in suit was sustained as embodying an improvement over a past patent of Lehr and Wyatt (No. 2,047,974) upon an apparatus designed to facilitate the pumping of oil out of wells which do not have sufficient natural pressures to force the oil to gush. An outline of the background and setting of these patents is helpful to an understanding of the problem presented. In order to operate a pump in an oil well most efficiently, cheaply, and with the least waste, the pump must be placed in an appropriate relationship to the fluid surface of the oil. Properly to place the pump in this relationship requires knowledge of the distance from the well top to the fluid surface. At least by the latter 1920's problems of waste and expense in connection with non-gusher oil wells pressed upon the industry. See Railroad Commission of Texas v. Rowan & Nichols Oil Co., ; Burford v. Sun Oil Co., . It became apparent that inefficient pumping, one cause of waste, was in some measure attributable to lack of accurate knowledge of distance from well top to fluid surface. Ability to measure this distance in each separate non-gusher oil well became an obvious next step in the solution of this minor aspect of the problem of waste. The surface and internal machinery and the corkscrew conformation of some oil wells make it impractical to measure depth by the familiar method of lowering a rope or cable. In casting about for an alternative method it was quite natural to hit upon the possibility of utilizing a sound-echo- time method. Unknown distances had frequently been ascertained by this method. Given the time elapsing between the injection of a sound into an oil well and the return of its echo from the fluid surface, and assuming the velocity of the sound to be about 1,100 feet per second, as it is in the open air, it would be easy to find the distance. Not only had this sound-echo-time method been long known and generally used to find unknown distances, but in 1898 Batcheller, in Patent No. 602,422, had described an apparatus to find a distance in a tubular space. Obviously an oil well is such a space. He described a device whereby the noise from a gun might be injected into a tube; the returning echoes from obstructions agitated a diaphragm, which in turn moved a stylus. The stylus recorded on a piece of paper a graph or diagram showing the variant movements of the diaphragm caused by its response to all the different echo waves. In the late 1920's the oil industry began to experiment in the use of this same sound-echo-time method for measur- ing the distance to the fluid surface in deep oil wells. A product of this experimentation was the Lehr and Wyatt patent, upon which the present patent claims to be an improvement. It proposed to measure the distance by measuring the time of travel of the echo of 'an impulse wave' generated by a 'sudden change in pressure.' The apparatus described included a gas cylinder with a quick operating valve by means of which a short blast of gas could be injected into a well. It was stated in the patent that the time elapsing between the release of the gas and the return of the echo of the waves produced by it could be observed in any desired manner. But the patentee's application and drawings noted that the wave impulses could be recorded by use of a microphone which might include an amplifier and an appropriate device to record a picture of the wave impulses. This Lehr and Wyatt patent, it is therefore apparent, simply provided an apparatus composed of old and well-known devices to measure the time required for pressure waves to move to and back from the fluid surface of an oil well. But the assumption that sound and pressure waves would travel in oil wells at open-air velocity of 1,100 feet per second proved to be erroneous. For this reason the timevelocity computation of Lehr and Wyatt for measuring the distance to the fluid surface produced inaccurate results. After conferences with Lehr, Walker undertook to search for a method which would more accurately indicate the sound and pressure wave velocity in each well. Walker was familiar with the structure of oil wells. The oil flow pipe in a well, known as a tubing string, is jointed and where these joints occur there are collars or shoulders. There are also one or more relatively prominent projections on the oil flow pipe known as tubing catchers. In wells where the distance to the tubing catcher is known, Walker observed that the distance to the fluid surface could be measured by a simple time-distance proportion formula. 4 For those wells in which the distance to the tubing catcher was unknown, Walker also suggested another idea. The sections of tubing pipe used in a given oil well are generally of equal length. Therefore the shoulders in a given well ordinarily are at equal intervals from each other. But the section length and therefore the interval may vary from well to well. Walker concluded that he could measure the unknown distance to the tubing catcher if he could observe and record the shoulder echo waves. Thus multiplication of the number of shoulders observed by the known length of a pipe section would produce the distance to the tubing catcher. With this distance, he could solve the distance to the fluid surface by the same proportion formula used when the distance to the tubing catcher was a matter of record. The Lehr and Wyatt instrument could record all these echo waves. But the potential usefulness of the echoes from the shoulders and the tubing catcher which their machine recorded had not occurred to Lehr and Wyatt and consequently they had made no effort better to observe and record them. Walker's contribution which he claims to be invention was in effect to add to Lehr and Wyatt's apparatus a well-known device which would make the regularly appearing shoulder echo waves more prominent on the graph and easier to count. The device added was a mechanical acoustical resonator. This was a short pipe which would receive wave impulses at the mouth of the well. Walker's testimony was, and his specifications state, that by making the length of this tubal resonator one-third the length of the tubing joints, the resonator would serve as a tuner, adjusted to the frequency of the shoulder echo waves. It would simultaneously amplify these echo waves and eliminate unwanted echoes from other obstructions thus producing a clearer picture of the shoulder echo waves. His specifications show, attached to the tubal resonator, a coupler, the manipulation of which would adjust the length of the tube to one-third of the interval between shoulders in a particular well. His specifications and drawings also show the physical structure of a complete apparatus, designed to inject pressure impulses into a well, and to receive, note, record and time the impulse waves. The District Court held the claims here in suit valid upon its finding that Walker's 'apparatus differs from and is an improvement over the prior art in the incorporation in such apparatus of a tuned acoustical means which performs the functions of a sound filter ....' The circuit court of appeals affirmed this holding, stating that the trial court had found 'that the only part of this patent constituting invention over the prior art is the 'tuned acoustical means which performs the functions of a sound filter." For our purpose in passing upon the sufficiency of the claims against prohibited indefiniteness we can accept without ratifying the findings of the lower court that the addition of '(a) tuned acoustical means' performing the 'functions of a sound filter' brought about a new patentable combination, even though it advanced only a narrow step beyond Lehr and Wyatt's old combination. 5 We must, however, determine whether, as petitioner charges, the claims here held valid run afoul of Rev.Stat. 4888 because they do not describe the invention but use 'conveniently functional language at the exact point of novelty.' General Electric Co. v. Wabash Appliance Corporation supraat page 371, 58 S.Ct. at page 903 Walker, in some of his claims, e.g., claims 2 and 3, does describe the tuned acoustical pipe as an integral part of his invention, showing its structure, its working arrangement in the alleged new combination, and the manner of its connection with the other parts. But no one of the claims on which this judgment rests has even suggested the physical structure of the acoustical resonator. 6 No one of these claims describes the physical relation of the Walker addition to the old Lehr and Wyatt machine. No one of these claims describes the manner in which the Walker addition will operate together with the old Lehr and Wyatt machine so as to make the 'new' unitary apparatus perform its designed function. Thus the claims failed adequately to depict the structure, mode, and operation of the parts in combination. A claim typical of all of those held valid only describes the resonator and its relation with the rest of the apparatus as 'means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing section to clearly distinguish the echoes of said couplings from each other.' 7 The language of the claim thus describes this most crucial element in the 'new' combination in terms of what it will do rather than in terms of its own physical characteristics or its arrangement in the new combination apparatus. We have held that a claim with such a description of a product is invalid as a violation of Rev.Stat. 4888. Holland Furniture Co. v. Perkins Glue Co., , 257 S., 48 S.Ct. 474, 478, 479; General Electric Co. v. Wabash Appliance Corporation, supra. We understand that the circuit court of appeals held that the same rigid standards of description required for product claims is not required for a combination patent embodying old elements only. We have a different view. Rev.Stat. 4888 pointedly provides that 'in the case of a machine, he (the patentee) shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctively claim the part, improvement, or combination which he claims as his invention or discovery.' It has long been held that the word 'machine' includes a combination. Corning et al. v. Burden, 15 How. 252, 267. We are not persuaded that the public and those affected by patents should lose the protection of this statute merely because the patented device is a combination of old elements. Patents on machines which join old and well-known devices with the declared object of achieving new results, or patents which add an old element to improve a preexisting combination, easily lend themselves to abuse. And to prevent extension of a patent's scope beyond what was actually invented, courts have viewed claims to combinations and improvements or additions to them with very close scrutiny. Cf. Lincoln Engineering Co. of Illinois v. Stewart Warner Corporation, , 549-551, 58 S.Ct. 662. For the same reason, courts have qualified the scope of what is meant by the equivalent of an ingredient of a combination of old elements. Gill v. Wells, 22 Wall. 1, 28, 29. Fuller v. Yentzer, , 298 S.. It is quite consistent with this strict interpretation of patents for machines which combine old elements to require clear description in combination claims. This view, clearly expressed in Gill v. Wells, supra, is that'Where the ingredients are all old the invention ... consists entirely in the combination, and the requirement of the Patent Act that the invention shall be fully and exactly described applies with as much force to such an invention as to any other class, because if not fulfilled all three of the great ends intended to be accomplished by that requirement would be defeated. ... (1.) That the Government may know what they have granted and what will become public property when the term of the monopoly expires. (2.) That licensed persons desiring to practice the invention may know, during the term, how to make, construct, and use the invention. (3.) That other inventors may know what part of the field of invention is unoccupied.'Purposes such as these are of great importance in every case, but the fulfillment of them is never more necessary than when such inquiries arise in respect to a patent for a machine which consists of a combination of old ingredients. Patents of that kind are much more numerous than any other, and consequently it is of the greatest importance that the description of the combination, which is the invention, should be full, clear, concise, and exact.' Gill v. Wells, supra, 22 Wall. at pages 25, 26. These principles were again emphasized in Merrill v. Yeomans, , 570, where it was said that '... in cases where the invention is a new combination of old devices, he (the patentee) is bound to describe with particularity all these old devices, and then the new mode of combining them, for which he desires a patent.' This view has most recently been reiterated in General Electric Co. v. Wabash Appliance Corporation, supraat pages 368, 369, 58 S.Ct. at pages 901, 902. Cogent reasons would have to be presented to persuade us to depart from this established doctrine. The facts of the case before us, far from undermining our confidence in these earlier pronouncements, reinforce the conclusion that the statutory requirement for a clear description of claims applies to a combination of old devices. This patent and the infringement proceedings brought under it illustrate the hazards of carving out an exception to the sweeping demand Congress made in Rev.Stat. 4888. Neither in the specification, the drawing, nor in the claims here under consideration, was there any indication that the patentee contemplated any specific structural alternative for the acoustical resonator or for the resonator's relationship to the other parts of the machine. Petitioner was working in a field crowded almost, if not completely, to the point of exhaustion. In 1920, Tucker, in Patent No. 1,451,356, had shown a tuned acoustical resonator in a sound detecting device which measured distances. Lehr and Wyatt had provided for amplification of their waves. Sufficient amplification and exaggeration of all the differ- ent waves which Lehr and Wyatt recorded on their machine would have made it easy to distinguish the tubing catcher and regular shoulder waves from all others. For, even without this amplification, the echo waves from tubing collars could by proper magnification have been recorded and accurately counted, had Lehr and Wyatt recognized their importance in computing the velocity. Cf. General Electric Co. v. Jewel Incandescent Lamp Co., . Under these circumstances the broadness, ambiguity, and overhanging threat of the functional claim of Walker become apparent. What he claimed in the court below and what he claims here is that his patent bars anyone from using in an oil well any device heretofore or hereafter invented which combined with the Lehr and Wyatt machine performs the function of clearly and distinctly catching and recording echoes from tubing joints with regularity. Just how many different devices there are of various kinds and characters which would serve to emphasize these echoes, we do not know. The Halliburton device, alleged to infringe, employs an electric filter for this purpose. In this age of technological development there may be many other devices beyond our present information or indeed our imagination which will perform that function and yet fit these claims. And unless frightened from the course of experimentation by broad functional claims like these, inventive genius may evolve many more devices to accomplish the same purpose. See United Carbon Co. et al. v. Binney & Smith Co., ; Burr v. Duryee, 1 Wall. 531, 568; O'Reilly et al. v. Morse et al., 15 How. 62, 112, 113. Yet if Walker's blanket claims be valid, no device to clarify echo waves, now known or hereafter invented, whether the device be an actual equivalent of Walker's ingredient or not, could be used in a combination such as this, during the life of Walker's patent. Had Walker accurately described the machine he claims to have invented, he would have had no such broad rights to bar the use of all devices now or hereafter known which could accent waves. For had he accurately described the resonator together with the Lehr and Wyatt apparatus, and sued for infringement, charging the use of something else used in combination to accent the waves, the alleged infringer could have prevailed if the substituted device (1) performed a substantially different function; (2) was not known at the date of Walker's patent as a proper substitute for the resonator; or (3) had been actually invented after the date of the patent. Fuller v. Yentzer, supraat pages 296, 297; Gill v. Wells, supra, 22 Wall. at page 29. Certainly, if we are to be consistent with Rev.Stat. 4888, a patentee cannot obtain greater coverage by failing to describe his invention than by describing it as the statute commands. It is urged that our conclusion is in conflict with the decision of Continental Paper Bag Co. v. Eastern Paper Bag Co., . In that case, however, the claims structurally described the physical and operating relationship of all the crucial parts of the novel combination. 8 The court there decided only that there had been an infringement of this adequately described invention. That case is not authority for sustaining the claims before us which fail adequately to describe the alleged invention.REVERSED. Mr. Justice FRANKFURTER concurs with the Court's opinion in so far as it finds this claim lacking in the definiteness required by Rev.Stat. 4888, 35 U.S.C. 33, 35 U.S.C.A. 33, but reserves judgment as to considerations that may be peculiar to combination patents in satisfying that requirement. Mr. Justice BURTON dissents. |
7 | Petitioner brought a suit in admiralty in a Federal District Court against the United States to recover under a war risk policy issued under the War Risk Insurance Act of 1940, as amended, for the loss of a ship by enemy action; but the case had not been reached for trial when that Act was repealed by the Joint Resolution of July 25, 1947. Held: The District Court was not deprived of jurisdiction, since existing rights and remedies were preserved by the General Savings Statute, R. S. 13, now 1 U.S.C. 109. Pp. 386-391. 198 F.2d 182, reversed. In a suit in admiralty against the United States, the District Court entered a final decree for the libellant. 98 F. Supp. 514. The Court of Appeals reversed. 198 F.2d 182. This Court granted certiorari. . Reversed, p. 391.Harold M. Kennedy argued the cause for petitioner. With him on the brief were Roscoe H. Hupper, Norman M. Barron and Hervey C. Allen.Benjamin Forman argued the cause for the United States. With him on the brief were Solicitor General Cummings, Assistant Attorney General Baldridge, Samuel D. Slade, Hubert H. Margolies and Cornelius J. Peck.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a suit in admiralty against the United States, in which the libellant, petitioner here, sought to recover for its loss of the M. V. Dona Aurora, which was sunk by enemy action on December 25, 1942. The basis of the libel was a war risk policy issued by the War Shipping Administration under the War Risk Insurance Act of June 29, 1940, 54 Stat. 689, 690, as amended, 46 U.S.C. 1128d. The libel was filed on December 22, 1944. On July 25, 1947, Congress passed a Joint Resolution putting an end to a large body of war powers. Among the hundred-odd statutory provisions thus repealed was the War Risk Insurance Act. 61 Stat. 449, 450. On October 4, 1948, determination of damages in advance of trial was referred to a Commissioner; his report was filed on March 23, 1950; it was confirmed (subject to some exceptions) on July 27, 1950, 92 F. Supp. 243; the case was reached for trial on March 6, 1951. The Government for the first time then raised the jurisdictional issue on which this case turns here, namely, whether the District Court had, as of July 25, 1947, been deprived of jurisdiction to retain this suit by the Joint Resolution.The District Court rejected the Government's contention, holding that 13 of the Revised Statutes, as amended,* saved the libellant's cause of action from being extinguished by the Joint Resolution of July 25, 1947. The court properly called attention to the fact that 13, originally 4 of the Act of February 25, 1871, 16 Stat. 431, 432, was reenacted, as amended, 58 Stat. 118, as 1 U.S.C. (Supp. I) 109, 61 Stat. 633, 635, after passage of the Joint Resolution, to wit, on July 30, 1947. 98 F. Supp. 514. However, the Government's view prevailed in the Court of Appeals. That court held that "the district court on July 25, 1947 lost its power to deal further with the litigation." 198 F.2d 182, 186. The Government recognized the importance of this ruling, and we brought the case here, limiting our grant of certiorari to the question of the jurisdiction of the District Court. .The precise contention which the Government made in the Court of Appeals, and which prevailed there, goes a long way toward disposing of itself. The Government did not contend that its liability to the petitioner came to an end with the Joint Resolution's repeal of the War Risk Insurance Act. Apart from R. S. 13, the Constitution precludes extinction of the Government's liability. Lynch v. United States, . The Government realized that its liability under the War Risk Insurance Act survived the Joint Resolution, but claimed that the mode provided by the Act for its enforcement did not. In this Court, the Government receded even from that position. It here took the academic position of giving the arguments pro and con, of stating the reasons why R. S. 13, the General Savings Statute, now 1 U.S.C. (Supp. I) 109, should be held to govern this situation, and also the reasons why it should be held inapplicable. We find the latter considerations more subtle than persuasive, and conclude that the arguments urged in support of the continuing jurisdiction of district courts to hear causes of action which arose under the War Risk Insurance Act prior to its repeal must prevail.In dealing with the present problem it is idle to thresh over the old disputation as to when the Government is, and when the Government is not, bound by a statute unrestricted in its terms. R. S. 13, as reenacted, lays down a general rule regarding the implications for existing rights of the repeal of the law which created them. It embodies a principle of fair dealing. When the Government has entered upon a conventional commercial endeavor, such as the insurance business, it as much offends standards of fairness for it to violate the principle of R. S. 13 as for private enterprise to do so.This brings us to the crux of the contention which prevailed below, namely, that while the Government's obligation as an insurer, which came into being with the sinking of the Dona Aurora on December 25, 1942, survived the repeal of the War Risk Insurance Act by the Joint Resolution of 1947, the "liability" could be enforced only in the Court of Claims, not in the District Court. This conclusion is no more substantial than the tenuous bits of legal reasoning of which it is compounded.By the General Savings Statute Congress did not merely save from extinction a liability incurred under the repealed statute; it saved the statute itself:"and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action ... for the enforcement of such ... liability." We see no reason why a careful provision of Congress, keeping a repealed statute alive for a precise purpose, should not be respected when doing so will attain exactly that purpose.This case demonstrates the concrete, dollars-and-cents importance of saving the statute and not merely the liability. Indeed, in this case the liability under the statute is not wholly saved unless that portion of the statute which gives the District Court jurisdiction also survives. As the Government fairly points out, to deny petitioner the opportunity to enforce its right in admiralty and to send it to the Court of Claims instead is to diminish substantially the recoverable amount, since in a district court sitting in admiralty interest accrues from the time of filing suit, 46 U.S.C. 745, while in the Court of Claims interest does not begin to run until the entry of judgment. 28 U.S.C. (Supp. IV) 2516.For the Government to acknowledge the liability but to deny the full extent of its enforceability recalls what was said in The Western Maid, : "Legal obligations that exist but cannot be enforced are ghosts that are seen in the law but that are elusive to the grasp."The Government rightly points to the difference between the repeal of statutes solely jurisdictional in their scope and the repeal of statutes which create rights and also prescribe how the rights are to be vindicated. In the latter statutes, "substantive" and "procedural" are not disparate categories; they are fused components of the expression of a policy. When the very purpose of Congress is to take away jurisdiction, of course it does not survive, even as to pending suits, unless expressly reserved. Ex parte McCardle, 7 Wall. 506, is the historic illustration of such a withdrawal of jurisdiction, of which less famous but equally clear examples are Hallowell v. Commons, , and Bruner v. United States, . If the aim is to destroy a tribunal or to take away cases from it, there is no basis for finding saving exceptions unless they are made explicit. But where the object of Congress was to destroy rights in the future while saving those which have accrued, to strike down enforcing provisions that have special relation to the accrued right and as such are part and parcel of it, is to mutilate that right and hence to defeat rather than further the legislative purpose. The Government acknowledges that there were special considerations, apart from the matter of interest, for giving the insured under the War Risk Insurance Act access to the district courts rather than relegating him to the Court of Claims. In repealing the War Risk Insurance Act among numerous other statutes, Congress was concerned not with jurisdiction, not with the undesirability of the district courts and the suitability of the Court of Claims as a forum for suits under that Act. It was concerned with terminating war powers after the "shooting war" had terminated.While the Government took a neutral position in this Court on the survival of the District Court's jurisdiction under the War Risk Insurance Act, it emphatically urged us to hold that, in any event, the repeal of that Act did not extinguish the District Court's jurisdiction to hear this case, sitting in admiralty pursuant to the Suits in Admiralty Act of March 9, 1920, 41 Stat. 525, 46 U.S.C. 741 et seq. Since we have concluded that the District Court was correct in holding that this libel was properly before it under the War Risk Insurance Act, it would be superfluous to consider the applicability of the other statute. Reversed.MR. JUSTICE DOUGLAS concurs in the result.[Footnote *] The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability." |
4 | In 1981, the Secretary of State obtained an assurance from the Haitian Government that it would not subject to prosecution for illegal departure undocumented Haitians interdicted by the United States and returned to Haiti. Personnel of petitioner State Department monitored Haiti's compliance with the assurance by conducting interviews with a "representative sample" of unsuccessful emigrants, most of whom reported no harassment or prosecution after their return. During immigration proceedings, respondents, undocumented Haitian nationals and their attorney, sought to prove that the nationals were entitled to political asylum in the United States because Haitians who immigrate illegally face a well-founded fear of prosecution upon returning home. To disprove the Government's assertion that returnees have not been prosecuted, respondents made Freedom of Information Act (FOIA) requests for copies of petitioner's interview reports and received, inter alia, 17 documents from which the names and other identifying information had been redacted. The District Court ordered petitioner to produce the redacted material, finding that the deletions were not authorized by FOIA Exemption 6, which exempts from disclosure personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The Court of Appeals affirmed. It found that the returnees' significant privacy interests - stemming from respondents' intent to use the redacted information to contact and question the returnees and from the Federal Government's promise to maintain their confidentiality - were outweighed by the public interest in learning whether the Government is adequately monitoring Haiti's compliance with its obligation and is honest when its officials opine that Haiti is adhering to its assurance. The court also concluded that the indirect benefit of giving respondents the means to locate and question returnees provided a public value requiring disclosure.Held: Disclosure of the unredacted interview reports would constitute a clearly unwarranted invasion of the returnees' privacy. Pp. 6-15. (a) In order to determine whether petitioner has met its burden of justifying the redaction, the individual's right of privacy must be balanced against the FOIA's basic policy of opening agency action to the light of public scrutiny. Department of Air Force v. Rose, . Pp. 173-175. (b) The privacy interest at stake in this case is more substantial than the Court of Appeals recognized. The invasion of privacy from summaries containing personal details about particular returnees, while de minimis when the returnees' identities are unknown, is significant when the information is linked to particular individuals. In addition, disclosure would publicly identify the returnees, possibly subjecting them or their families to embarrassment in their social and community relationships or to retaliatory action that might result from a renewed interest in their aborted attempt to emigrate. The lower court also gave insufficient weight to the fact that the interviews were conducted pursuant to an assurance of confidentiality, since the returnees might otherwise have been unwilling to discuss private matters and since the risk of mistreatment gives this group an additional interest in assuring that their anonymity is maintained. Finally, respondents' intent to interview the returnees magnifies the importance of maintaining the confidentiality of their identities. Pp. 175-177. (c) The public interest in knowing whether petitioner has adequately monitored Haiti's compliance with the assurance has been adequately served by disclosure of the redacted interview summaries, which reveal how many returnees were interviewed, when the interviews took place, the interviews' contents, and details about the returnees' status. The addition of the redacted information would shed no further light on petitioner's conduct of its obligation. Pp. 177-178. (d) The question whether the "derivative use" of requested documents - here, the hope that the information can be used to obtain additional information outside the Government files - would ever justify release of information about private individuals need not be addressed, since there is nothing in the record to suggest that a second set of interviews would produce any additional relevant information. Nor is there a scintilla of evidence that tends to impugn the integrity of the interview reports, and, therefore, they should be accorded a presumption of legitimacy. Pp. 178-179. 908 F.2d 1549 (CA11 1990), reversed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SOUTER, JJ., joined, and in all but Part III of which SCALIA and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which KENNEDY, J., joined. THOMAS, J., took no part in the consideration or decision of the case.Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Leonard Schaitman, and Bruce G. Forrest.Michael Dean Ray, pro se, argued the cause for respondents. With him on the brief were Neil Dwight Kolner and Eric J. Sinrod.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Debra A. Valentine, David L. Soble, John A. Powell, Lucas Guttentag, and Gary M. Stern: for the American Newspaper Publishers Association et al. by Robert C. Bernius, Rene P. Milam, Barbara Wartelle Wall, Jane E. Kirtley, Richard M. Schmidt, Bruce W. Sanford, James E. Grossberg, and George Freeman; and for the Lawyers Committee for Human Rights et al. by David C. Vladeck and Alan B. Morrison.JUSTICE STEVENS delivered the opinion of the Court.In response to a Freedom of Information Act (FOIA) request, the Department of State produced 25 documents containing information about Haitian nationals who had attempted to emigrate illegally to the United States and were involuntarily returned to Haiti. Names of individual Haitians had been deleted from 17 of the documents. The question presented is whether these deletions were authorized by FOIA Exemption 6, which provides that FOIA disclosure requirements do not apply to personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C. 552(b)(6).IHaiti is a densely populated nation located about 500 nautical miles southeast of Florida on the western third of the Caribbean Island of Hispaniola. Prior to 1981, its history of severe economic depression and dictatorial government motivated large numbers of its citizens to emigrate to Florida without obtaining the permission of either the Haitian government or the government of the United States. A small number of those undocumented aliens were eligible for asylum as political refugees,1 but almost all of them were subject to deportation if identified and apprehended.In response to this burgeoning "illegal migration by sea of large numbers of undocumented aliens" from Haiti and other countries, President Reagan ordered the Coast Guard and the Secretary of State to intercept vessels carrying undocumented aliens and, except for passengers who qualified for refugee status, to return them to their point of origin. See Presidential Proclamation No. 4865 of Sept. 29, 1981, 46 Fed.Reg. 48107 (1981); Exec. Order No. 12324, 46 Fed.Reg. 48109 (1981). The President also directed the Secretary of State to enter into "cooperative arrangements with appropriate foreign governments for the purpose of preventing illegal migration to the United States by sea." Ibid. Following this directive, the Secretary of State obtained an assurance from the Haitian government that interdicted Haitians would "not be subject to prosecution for illegal departure." See Agreement on Migrants - Interdiction, Sept. 23, 1981, United States-Haiti, 33 U.S.T. 3559, 3560, T.I.A.S. No. 10241. In order to monitor compliance with that assurance, State Department personnel conducted confidential interviews with a "representative sample" of unsuccessful emigrants about six months after their involuntary return. All but one or two of the emigrants reported that they had not been harassed or prosecuted since their return to Haiti.Respondents in this case are a Florida lawyer who represents undocumented Haitian nationals seeking political asylum in the United States and three of his clients. In immigration proceedings, respondents are attempting to prove that Haitians who immigrated illegally will face a well-founded fear of persecution if they return to their homeland, and therefore are refugees entitled to asylum in this country. Relying in part on the evidence in the reports of the interviews with former passengers on vessels interdicted by the Coast Guard, the Government has taken the position in those proceedings that respondents' fear of persecution is not well founded.In order to test the accuracy of the Government's assertion that undocumented Haitian nationals have not been persecuted upon their return to Haiti, respondents made a series of FOIA requests to three Government agencies for copies of reports of the interviews by State Department personnel with persons who had been involuntarily returned to Haiti. Insofar as relevant to the question before us, the net result of these requests was the production by the State Department of 25 documents, containing approximately 96 pages, which describe a number of interviews with specific returnees and summarize the information that had been obtained during successive periods.2 Thus, for example, a summary prepared in March, 1985, reported that, since the follow-up program had begun 3 1/2 years earlier, U.S. embassy officials in Haiti had interviewed 812 returnees, 22.83 percent of the total migrant interdictee population.3 During that time, the report continued, "only two interdictees have mentioned a threat or mistreatment by the authorities. In one case, the claim was unverifiable, as there were no witnesses present; in the second case, higher authorities intervened to prevent mistreatment by a rural policeman.4 In 17 of the documents, the information related to individual interviews, but the names and other identifying information had been redacted before the documents were delivered to respondents.5 The only issue for us to decide is whether that redaction was lawful. The District Court found that any invasion of privacy from the "mere act of disclosure of names and addresses would be de minimis, and little more than speculation," and was clearly outweighed by the public interest in the "safe relocation of returned Haitians." Ray v. United States Department of Justice, 725 F.Supp. 502, 505 (SD Fla. 1989). It therefore ordered the Department to produce the redacted information.The Court of Appeals affirmed. Ray v. United States Department of Justice, 908 F.2d 1549 (CA11 1990). For two reasons, however, it disagreed with the District Court's "de minimis" characterization of the privacy interest at stake. First, it noted that respondents wanted the redacted information in order to enable them to contact the interviewees directly and to question them about their treatment by the Haitian Government. Id., at 1554. Second, the Court recognized that "the returnees were promised confidentiality before they talked with U.S. government officials." Ibid. Thus, the Court of Appeals began its balancing process "by acknowledging that there are significant privacy interests at stake." Ibid. It nevertheless concluded that those interests were outweighed by the public interest in learning whether the Government is "adequately monitoring Haiti's compliance with its obligation not to persecute returnees" and "is honest to the public" when its officials express the opinion that Haiti is adhering to that obligation. Id., at 1555. The court recognized that the redacted information would not, in and of itself, tell the respondents anything about Haiti's treatment of the returnees or this Government's honesty, but it concluded that the indirect benefit of giving respondents the means to locate the Haitian returnees and to cross-examine them provided a public value that required disclosure. Id., at 1555-1556.We granted certiorari to review the Court of Appeals' construction of Exemption 6, , and now reverse.IIIt is appropriate to preface our evaluation of the narrow question that we must decide with an identification of certain matters that have been resolved in earlier stages of the litigation.After the District Court's initial decision, the State Department filed additional affidavits in support of a claim that the redacted information was protected from disclosure by Exemption 1, the exemption for classified documents, and also by Exemption 7(C), the exemption for law enforcement records which, if released, "could reasonably be expected to constitute an unwarranted invasion of personal privacy."6 The District Court ruled that the Government had waived those claims by not raising them until after its Exemption 6 claim had been denied, Ray v. Department of Justice, 725 F.Supp., at 505, and the Court of Appeals held that that ruling was not an abuse of discretion, 908 F.2d, at 1557. We denied the Government's certiorari petition insofar as it sought review of that question, but mention it here because the Government's burden in establishing the requisite invasion of privacy to support an Exemption 6 claim is heavier than the standard applicable to Exemption 7(C). See United States Department of Justice v. Reporter Committee for Freedom of the Press, . To prevail in this case under Exemption 6, the Government must establish that the invasion of the interviewees' privacy would be "clearly unwarranted."In attempting to meet its burden, the Government relies, in part, on the fact that the interviews with the Haitian returnees were conducted pursuant to assurances of confidentiality. In this Court, respondents have suggested that the texts of some of the reported interviews do not expressly mention such assurances. Neither the District Court nor the Court of Appeals, however, questioned the fact that promises of confidentiality had actually been made; on the contrary, after finding that such assurances had been made, both courts concluded as a matter of law that they did not outweigh the public interest in disclosure.7 Insofar as the promises of confidentiality are relevant, we of course accept the factual predicate for the Court of Appeals decision.That Court's conclusion rested, in part, on what it described as the public interest in learning "whether our government is honest to the public about Haiti's treatment of returnees." 908 F.2d, at 1555. The Court of Appeals did not, however, suggest that there was any evidence in the State Department records that was inconsistent with any public statement made by Government officials, or that there was any other factual basis for questioning the honesty of its officials. Thus, as with the assurances of confidentiality, we have no occasion to question the Government's version of the relevant facts.We note, finally, that respondents have never questioned the Government's position that the documents at issue consist of "personnel and medical files and similar files" within the meaning of Exemption 6.8 Because the 17 reports from which identifying information was deleted unquestionably apply to the particular individuals who had been returned and interviewed, they are "similar files" within the meaning of the exemption. See Department of State v. Washington Post Co., . The only question, therefore, is whether the disclosure of the unredacted interview reports "would constitute a clearly unwarranted invasion of that person's privacy."IIIThe Freedom of Information Act was enacted to facilitate public access to Government documents. John Doe Agency v. John Doe Corp., . The statute was designed "`to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Department of Air Force v. Rose, . Consistently with this purpose, as well as the plain language of the Act, the strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents. Ibid; Department of Justice v. Reporters Committee, 489 U.S., at 755. That burden remains with the agency when it seeks to justify the redaction of identifying information in a particular document, as well as when it seeks to withhold an entire document. See 5 U.S.C. 552(a)(4)(B). The redaction procedure is, however, expressly authorized by FOIA.9 Congress thus recognized that the policy of informing the public about the operation of its Government can be adequately served in some cases without unnecessarily compromising individual interests in privacy.10 Accordingly, in the leading case interpreting Exemption 6, we held that the statute required disclosure of summaries of Air Force Academy disciplinary proceedings "with personal references or other identifying information deleted." Rose, 425 U.S., at 380. The question in this case is whether the Government has discharged its burden of demonstrating that the disclosure of the contents of the interviews with the Haitian returnees adequately served the statutory purpose, and that the release of the information identifying the particular interviewees would constitute a clearly unwarranted invasion of their privacy.As we held in Rose, the text of the exemption requires the Court to balance "the individual's right of privacy" against the basic policy of opening "agency action to the light of public scrutiny," id., at 372. The District Court and the Court of Appeals properly began their analysis by considering the significance of the privacy interest at stake. We are persuaded, however, that several factors, when considered together, make the privacy interest more substantial than the Court of Appeals recognized.First, the Court of Appeals appeared to assume that respondents sought only the names and addresses of the interviewees. But respondents sought - and the District Court ordered that the Government disclose - the unredacted interview summaries. As the Government points out, many of these summaries contain personal details about particular interviewees.11 Thus, if the summaries are released without the names redacted, highly personal information regarding marital and employment status, children, living conditions, and attempts to enter the United States would be linked publicly with particular named individuals. Although disclosure of such personal information constitutes only a de minimis invasion of privacy when the identities of the interviewees are unknown, the invasion of privacy becomes significant when the personal information is linked to particular interviewees. Cf. id., at 380-381.In addition, disclosure of the unredacted interview summaries would publicly identify the interviewees as people who cooperated with a State Department investigation of the Haitian Government's compliance with its promise to the United States Government not to prosecute the returnees. The Court of Appeals failed to acknowledge the significance of this fact.12 As the State Department explains, disclosure of the interviewees' identities could subject them or their families to "embarrassment in their social and community relationships." App. 43. More importantly, this group of interviewees occupies a special status: they left their homeland in violation of Haitian law and are protected from prosecution by their government's assurance to the State Department. Although the Department's monitoring program indicates that that assurance has been fulfilled, it nevertheless remains true that the State Department considered the danger of mistreatment sufficiently real to necessitate that monitoring program. How significant the danger of mistreatment may now be is, of course, impossible to measure, but the privacy interest in protecting these individuals from any retaliatory action that might result from a renewed interest in their aborted attempt to emigrate must be given great weight. Indeed, the very purpose of respondents' FOIA request is to attempt to prove that such a danger is present today.We are also persuaded that the Court of Appeals gave insufficient weight to the fact that the interviews had been conducted pursuant to an assurance of confidentiality. We agree that such a promise does not necessarily prohibit disclosure, but it has a special significance in this case. Not only is it apparent that an interviewee who had been given such an assurance might have been willing to discuss private matters that he or she would not otherwise expose to the public - and therefore would regard a subsequent interview by a third party armed with that information as a special affront to his or her privacy - but, as discussed above, it is also true that the risk of mistreatment gives this group of interviewees an additional interest in assuring that their anonymity is maintained.Finally, we cannot overlook the fact that respondents plan to make direct contact with the individual Haitian returnees identified in the reports. As the Court of Appeals properly recognized, the intent to interview the returnees magnifies the importance of maintaining the confidentiality of their identities.IVAlthough the interest in protecting the privacy of the redacted information is substantial, we must still consider the importance of the public interest in its disclosure. For unless the invasion of privacy is "clearly unwarranted," the public interest in disclosure must prevail. As we have repeatedly recognized, FOIA's "basic policy of "full agency disclosure unless information is exempted under clearly delineated statutory language," ... focuses on the citizens' right to be informed about "what their government is up to." Official information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." Department of Justice v. Reporters Committee, 489 U.S., at 773 (quoting Department of Air Force v. Rose, 425 U.S., at 360-61) (internal citations omitted). Thus, the Court of Appeals properly recognized that the public interest in knowing whether the State Department has adequately monitored Haiti's compliance with its promise not to prosecute returnees is cognizable under FOIA. We are persuaded, however, that this public interest has been adequately served by disclosure of the redacted interview summaries, and that disclosure of the unredacted documents would therefore constitute a clearly unwarranted invasion of the interviewees' privacy.The unredacted portions of the documents that have already been released to respondents inform the reader about the State Department's performance of its duty to monitor Haitian compliance with the promise not to prosecute the returnees. The documents reveal how many returnees were interviewed, when the interviews took place, the contents of individual interviews, and details about the status of the interviewees. The addition of the redacted identifying information would not shed any additional light on the Government's conduct of its obligation.The asserted public interest on which respondents rely stems not from the disclosure of the redacted information itself, but rather from the hope that respondents, or others, may be able to use that information to obtain additional information outside the government files. The Government argues that such "derivative use" of requested documents is entirely beyond the purpose of the statute, and that we should adopt a categorical rule entirely excluding the interest in such use from the process of balancing the public interest in disclosure against the interest in privacy. There is no need to adopt such a rigid rule to decide this case, however, because there is nothing in the record to suggest that a second series of interviews with the already-interviewed returnees would produce any relevant information that is not set forth in the documents that have already been produced. Mere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy. Accordingly, we need not address the question whether a "derivative use" theory would ever justify release of information about private individuals.We are also unmoved by respondents' asserted interest in ascertaining the veracity of the interview reports. There is not a scintilla of evidence, either in the documents themselves or elsewhere in the record, that tends to impugn the integrity of the reports. We generally accord government records and official conduct a presumption of legitimacy. If a totally unsupported suggestion that the interest in finding out whether government agents have been telling the truth justified disclosure of private materials, government agencies would have no defense against requests for production of private information. What sort of evidence of official misconduct might be sufficient to identify a genuine public interest in disclosure is a matter that we need not address in this case. On the record before us, we are satisfied that the proposed invasion of the serious privacy interest of the Haitian returnees is "clearly unwarranted."The judgment of the Court of Appeals isReversed.JUSTICE THOMAS took no part in the consideration or decision of this case. |
0 | Under the New Jersey homicide statutes, life imprisonment is the mandatory punishment for defendants convicted by a jury of first-degree murder, while a term of not more than 30 years is the punishment for second-degree murder. Trials to the court and guilty pleas are not allowed in murder cases, but a plea of non vult is allowed. If such a plea is accepted, the judge need not decide whether the murder is first or second degree, but the punishment is either life imprisonment or the same punishment as is imposed for second-degree murder. Appellant, after pleading not guilty to a murder indictment, was convicted by a jury of first-degree murder and accordingly sentenced to life imprisonment. The New Jersey Supreme Court affirmed, rejecting appellant's contention that the possibility of a sentence of less than life upon the plea of non vult, combined with the absence of a similar possibility when found guilty of first-degree murder by a jury, was an unconstitutional burden on his rights under the Fifth, Sixth, and Fourteenth Amendments and also violated his right to equal protection under the Fourteenth Amendment. Held: 1. The New Jersey sentencing scheme does not impose an unconstitutional burden on appellant's rights under the Fifth, Sixth, and Fourteenth Amendments. Pp. 216-225. (a) Although the mandatory punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment, the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has authority to impose a life term. United States v. Jackson, , distinguished. Pp. 216-217. (b) Not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid; specifically, there is no per se rule against encouraging guilty pleas. Here, the probability or certainty of leniency in return for a non vult plea did not invalidate the mandatory life sentence, there having been no assurances that a plea would have been accepted and if it had been that a lesser sentence would have been imposed. Cf. Bordenkircher v. Hayes, . Pp. 218-222. (c) If appellant had tendered a plea and if it had been accepted and a term of years less than life had been imposed, this would simply have recognized that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account. Absent the abolition of guilty pleas and plea bargaining, it is not forbidden under the Constitution to extend a proper degree of leniency in return for guilty pleas, and New Jersey has done no more than that. Pp. 222-223. (d) There was no element of retaliation or vindictiveness against appellant for going to trial, where it does not appear that he was subjected to unwarranted charges or was being punished for exercising a constitutional right. While defendants pleading non vult may be treated more leniently than those who go to trial, withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as plea bargaining is held to be a proper procedure. Pp. 223-224. (e) The New Jersey sentencing scheme does not exert such a powerful influence to coerce inaccurate pleas non vult as to be deemed constitutionally suspect. Here, the State did not trespass on appellant's rights so long as he was free to accept or refuse the choice presented to him by the State, i. e., to go to trial and face the risk of life imprisonment or to seek acceptance of a non vult plea and imposition of the lesser penalty. P. 225. 2. Nor does the sentencing scheme infringe appellant's right to equal protection under the Fourteenth Amendment, since all New Jersey defendants are given the same choice as to whether to go to trial or plead non vult. Defendants found guilty by a jury are not penalized for exercising their right to a jury trial any more than defendants who plead guilty are penalized for giving up the chance of acquittal at trial. Equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision. Pp. 225-226. 74 N. J. 379, 378 A. 2d 235, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, post, p. 226. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 228.James K. Smith, Jr., argued the cause for appellant. With him on the brief was Stanley C. Van Ness.John DeCicco, Deputy Attorney General of New Jersey, argued the cause for appellee. With him on the brief were John J. Degnan, Attorney General, David S. Baime, Assistant Attorney General, and Anthony J. Parrillo, Deputy Attorney General.MR. JUSTICE WHITE delivered the opinion of the Court.Under the New Jersey homicide statutes,1 some murders are of the first degree; the rest are of the second degree. Juries rendering guilty murder verdicts are to designate whether the murder was a first- or second-degree crime. The mandatory punishment, to be imposed by the judge, for those convicted by a jury of first-degree murder is life imprisonment;2 second-degree murder is punished by a term of not more than 30 years. Trials to the court in murder cases are not permitted, and guilty pleas to murder indictments are forbidden. Pleas of non vult or nolo contendere, however, are allowed. "If such plea be accepted," the punishment "shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree."3 The judge entertaining the plea determines that there is a factual basis for conviction but need not decide whether the murder is first or second degree.Appellant Corbitt, after pleading not guilty to a murder indictment, was convicted of committing murder in the course of an arson - a felony murder and one of the first-degree homicides.4 He was sentenced to the mandatory punishment of life imprisonment. His conviction and sentence were affirmed by the New Jersey appellate courts. The New Jersey Supreme Court rejected his contention that because defendants pleading non vult could be sentenced to a lesser term, the mandatory life sentence following a first-degree murder verdict was an unconstitutional burden upon his right to a jury trial under the Sixth and Fourteenth Amendments and upon his right against compelled self-incrimination under the Fifth and Fourteenth Amendments, as well as a violation of his right to equal protection of the laws under the Fourteenth Amendment. 74 N. J. 379, 378 A. 2d 235 (1977). We noted probable jurisdiction. .Appellant's principal reliance is upon United States v. Jackson, . There, this Court held that the death sentence provided by the Federal Kidnaping Act was invalid because it could be imposed only upon the recommendation of a jury accompanying a guilty verdict, whereas the maximum penalty for those tried to the court after waiving a jury and for those pleading guilty was life imprisonment. Only those insisting on a jury trial faced the possibility of a death penalty. These provisions were held to be a needless encouragement to plead guilty or to waive a jury trial, and the death penalty was consequently declared unconstitutional.We agree with the New Jersey Supreme Court that there are substantial differences between this case and Jackson, and that Jackson does not require a reversal of Corbitt's conviction. The principal difference is that the pressures to forgo trial and to plead to the charge in this case are not what they were in Jackson. First, the death penalty, which is "unique in its severity and irrevocability," Gregg v. Georgia, , is not involved here. Although we need not agree with the New Jersey court that the Jackson rationale is limited to those cases where a plea avoids any possibility of the death penalty's being imposed, it is a material fact that under the New Jersey law the maximum penalty for murder is life imprisonment, not death. Furthermore, in Jackson, any risk of suffering the maximum penalty could be avoided by pleading guilty. Here, although the punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment,5 the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has the authority to impose a life term. New Jersey does not reserve the maximum punishment for murder for those who insist on a jury trial.It is nevertheless true that while life imprisonment is the mandatory punishment for a defendant against whom a jury has returned a first-degree murder verdict, a judge accepting a non vult plea does not classify the murder6 and may impose either life imprisonment or a term of up to 30 years. The defendant who wishes to avoid the certainty of life imprisonment if he is tried and found guilty by the jury of first-degree murder, may seek to do so by tendering a non vult plea. Although there is no assurance that he will be so favored, the judge does have the power to accept the plea and to sentence him to a lesser term.7 It is Corbitt's submission that the possibility of a sentence of less than life upon the plea of non vult, combined with the absence of a similar possibility when found guilty by a jury, is an unconstitutional burden on his federal rights under the Fifth, Sixth, and Fourteenth Amendments.As did the New Jersey Supreme Court, we disagree. The cases in this Court since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid.8 Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea.9 The plea may obtain for the defendant "the possibility or certainty ... [not only of] a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty ...," Brady v. United States, , but also of a lesser penalty than that required to be imposed after a guilty verdict by a jury. In Bordenkircher v. Hayes, , the defendant went to trial on an indictment charging him as a habitual criminal, for which the mandatory punishment was life imprisonment. The prosecutor, however, had been willing to accept a plea of guilty to a lesser charge carrying a shorter sentence. The defendant chose to go to trial, was convicted, and was sentenced to life. We affirmed the conviction, holding that the State, through the prosecutor, had not violated the Constitution since it "no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution." Id., at 365. Relying upon and quoting from Chaffin v. Stynchcombe, , we also said: "While confronting a defendant with the risk of more severe punishment clearly may have a `discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable' - and permissible - `attribute of any legitimate system which tolerates and encourages the negotiation of pleas.' Chaffin v. Stynchcombe, supra, at 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty." 434 U.S., at 364. There is no difference of constitutional significance between Bordenkircher and this case.10 There, as here, the defendant went to trial on an indictment that included a count carrying a mandatory life term under the applicable state statutes. There, as here, the defendant could have sought to counter the mandatory penalty by tendering a plea. In Bordenkircher, as permitted by state law, the prosecutor was willing to forgo the habitual criminal count if there was a plea, in which event the mandatory sentence would have been avoided. Here, the state law empowered the judge to impose a lesser term either in connection with a plea bargain or otherwise. In both cases, the defendant gave up the possibility of leniency if he went to trial and was convicted on the count carrying the mandatory penalty. In Bordenkircher, the probability or certainty of leniency in return for a plea did not invalidate the mandatory penalty imposed after a jury trial. It should not do so here, where there was no assurance that a plea would be accepted if tendered and, if it had been, no assurance that a sentence less than life would be imposed. Those matters rested ultimately in the discretion of the judge, perhaps substantially influenced by the prosecutor and the plea-bargaining process permitted by New Jersey law.11 Bordenkircher, like other cases here, unequivocally recognized the State's legitimate interest in encouraging the entry of guilty pleas and in facilitating plea bargaining, a process mutually beneficial to both the defendant and the State.12 In pursuit of this interest, New Jersey has provided that the judge may, but need not, accept pleas of non vult and that he may impose life or the specified term of years. This not only provides for discretion in the trial judge but also sets the limits within which plea bargaining on punishment may take place. The New Jersey Supreme Court observed that the "encouragement of guilty defendants not to contest their guilt is at the very heart of an effective plea negotiation program." 74 N. J., at 396, 378 A. 2d, at 243-244. Its conclusion was that in this light there were substantial benefits to the State in providing the opportunity for lesser punishment and that the statutory pattern could not be deemed a needless or arbitrary burden on the defendant's constitutional rights within the meaning of United States v. Jackson.We are in essential agreement with the New Jersey Supreme Court. Had Corbitt tendered a plea and had it been accepted and a term of years less than life imposed, this would simply have recognized the fact that there had been a plea and that in sentencing it is constitutionally permissible to take that fact into account. The States and the Federal Government are free to abolish guilty pleas and plea bargaining; but absent such action, as the Constitution has been construed in our cases, it is not forbidden to extend a proper degree of leniency in return for guilty pleas. New Jersey has done no more than that.We discern no element of retaliation or vindictiveness against Corbitt for going to trial. There is no suggestion that he was subjected to unwarranted charges. Nor does this record indicate that he was being punished for exercising a constitutional right.13 Indeed, insofar as this record reveals, Corbitt may have tendered a plea and it was refused. There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed. Those cases, as we have said, unequivocally recognize the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based.14 Finally, we are unconvinced that the New Jersey statutory pattern exerts such a powerful influence to coerce inaccurate pleas non vult that it should be deemed constitutionally suspect. There is no suggestion here that Corbitt was not well counseled or that he misunderstood the choices that were placed before him. Here, as in Bordenkircher, the State did not trespass on the defendant's rights "so long as the accused [was] free to accept or reject" the choice presented to him by the State, 434 U.S., at 363, that is, to go to trial and face the risk of life imprisonment or to seek acceptance of a non vult plea and the imposition of the lesser penalty authorized by law.15 Appellant also argues that the sentencing scheme infringes his right to equal protection under the Fourteenth Amendment because it penalizes the exercise of a "fundamental right." We rejected a similar argument in North Carolina v. Pearce, , noting that "[t]o fit the problem ... into an equal protection framework is a task too Procrustean to be rationally accomplished." Id., at 723. All New Jersey defendants are given the same choice. Those electing to contest their guilt face a certainty of life imprisonment if convicted of first-degree murder; but they may be acquitted instead or, in a proper case, may be convicted of a lesser degree of homicide and receive a sentence of less than life. Furthermore, a plea of non vult may itself result in a life sentence. The result, therefore, "may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a state has invidiously `classified' ... ." Id., at 722. It cannot be said that defendants found guilty by a jury are "penalized" for exercising the right to a jury trial any more than defendants who plead guilty are penalized because they give up the chance of acquittal at trial. In each instance, the defendant faces a multitude of possible outcomes and freely makes his choice. Equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision. The judgment of the Supreme Court of New Jersey is affirmed. It is so ordered. |
7 | A hospital governed by petitioners has a contract with a firm of anesthesiologists requiring all anesthesiological services for the hospital's patients to be performed by that firm. Because of this contract, respondent anesthesiologist's application for admission to the hospital's medical staff was denied. Respondent then commenced an action in Federal District Court, claiming that the exclusive contract violated 1 of the Sherman Act, and seeking declaratory and injunctive relief. The District Court denied relief, finding that the anticompetitive consequences of the contract were minimal and outweighed by benefits in the form of improved patient care. The Court of Appeals reversed, finding the contract illegal "per se." The court held that the case involved a "tying arrangement" because the users of the hospital's operating rooms (the tying product) were compelled to purchase the hospital's chosen anesthesiological services (the tied product), that the hospital possessed sufficient market power in the tying market to coerce purchasers of the tied product, and that since the purchase of the tied product constituted a "not insubstantial amount of interstate commerce," the tying arrangement was therefore illegal "per se."Held: The exclusive contract in question does not violate 1 of the Sherman Act. Pp. 9-32. (a) Any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold, for that is where the anticompetitive forcing has its impact. Thus, in this case the analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services. In making that analysis, consideration must be given to whether petitioners are selling two separate products that may be tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement. Pp. 9-18. (b) No tying arrangement can exist here unless there is a sufficient demand for the purchase of anesthesiological services separate from hospital services to identify a distinct product market in which it is efficient to offer anesthesiological services separately from hospital services. The fact that the exclusive contract requires purchase of two services that would otherwise be purchased separately does not make the contract illegal. Only if patients are forced to purchase the contracting firm's services as a result of the hospital's market power would the arrangement have anticompetitive consequences. If no forcing is present, patients are free to enter a competing hospital and to use another anesthesiologist instead of the firm. Pp. 18-25. (c) The record does not provide a basis for applying the per se rule against tying to the arrangement in question. While such factors as the Court of Appeals relied on in rendering its decision - the prevalence of health insurance as eliminating a patient's incentive to compare costs, and patients' lack of sufficient information to compare the quality of the medical care provided by competing hospitals - may generate "market power" in some abstract sense, they do not generate the kind of market power that justifies condemnation of tying. Tying arrangements need only be condemned if they restrain competition on the merits by forcing purchases that would not otherwise be made. The fact that patients of the hospital lack price consciousness will not force them to take an anesthesiologist whose services they do not want. Similarly, if the patients cannot evaluate the quality of anesthesiological services, it follows that they are indifferent between certified anesthesiologists even in the absence of a tying arrangement. Pp. 26-29. (d) In order to prevail in the absence of per se liability, respondent has the burden of showing that the challenged contract violated the Sherman Act because it unreasonably restrained competition, and no such showing has been made. The evidence is insufficient to provide a basis for finding that the contract, as it actually operates in the market, has unreasonably restrained competition. All the record establishes is that the choice of anesthesiologists at the hospital has been limited to one of the four doctors who are associated with the contracting firm. If respondent were admitted to the hospital's staff, the range of choice would be enlarged, but the most significant restraints on the patient's freedom to select a specific anesthesiologist would nevertheless remain. There is no evidence that the price, quality, or supply or demand for either the "tying product" or the "tied product" has been adversely affected by the exclusive contract, and no showing that the market as a whole has been affected at all by the contract. Pp. 29-32. 686 F.2d 286, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 32. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C. J., and POWELL and REHNQUIST, JJ., joined, post, p. 32.Frank H. Easterbrook argued the cause for petitioners. With him on the briefs were Lucas J. Giordano, Thomas J. Reed, and Henry S. Allen, Jr.Jerrold J. Ganzfried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Baxter, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Lipsky, Barry Grossman, and Andrea Limmer.John M. Landis argued the cause for respondent. With him on the brief was Phillip A. Wittman.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Hospital Association by Richard L. Epstein, Robert W. McCann, and John J. Miles; for the College of American Pathologists by Jack R. Bierig; and for the National Association of Private Psychiatric Hospitals by Joel I. Klein.Briefs of amici curiae urging affirmance were filed for the American Society of Anesthesiologists, Inc., by John Landsdale, Jr., and Michael Scott; for the Association of American Physicians & Surgeons, Inc., by Kent Masterson Brown; and for the Louisiana State Medical Society by Henry B. Alsobrook, Jr., Frank M. Adkins, and Richard B. Eason II.Briefs of amici curiae were filed for the American Association of Nurse Anesthetists by Phil David Fine, Robert F. Sylvia, Richard E. Verville, and Susan M. Jenkins; and for the Louisiana Hospital Association et al. by Ricardo M. Guevara.JUSTICE STEVENS delivered the opinion of the Court.At issue in this case is the validity of an exclusive contract between a hospital and a firm of anesthesiologists. We must decide whether the contract gives rise to a per se violation of 1 of the Sherman Act1 because every patient undergoing surgery at the hospital must use the services of one firm of anesthesiologists, and, if not, whether the contract is nevertheless illegal because it unreasonably restrains competition among anesthesiologists.In July 1977, respondent Edwin G. Hyde, a board-certified anesthesiologist, applied for admission to the medical staff of East Jefferson Hospital. The credentials committee and the medical staff executive committee recommended approval, but the hospital board denied the application because the hospital was a party to a contract providing that all anesthesiological services required by the hospital's patients would be performed by Roux & Associates, a professional medical corporation. Respondent then commenced this action seeking a declaratory judgment that the contract is unlawful and an injunction ordering petitioners to appoint him to the hospital staff.2 After trial, the District Court denied relief, finding that the anticompetitive consequences of the Roux contract were minimal and outweighed by benefits in the form of improved patient care. 513 F. Supp. 532 (ED La. 1981). The Court of Appeals reversed because it was persuaded that the contract was illegal "per se." 686 F.2d 286 (CA5 1982). We granted certiorari, , and now reverse.IIn February 1971, shortly before East Jefferson Hospital opened, it entered into an "Anesthesiology Agreement" with Roux & Associates (Roux), a firm that had recently been organized by Dr. Kermit Roux. The contract provided that any anesthesiologist designated by Roux would be admitted to the hospital's medical staff. The hospital agreed to provide the space, equipment, maintenance, and other supporting services necessary to operate the anesthesiology department. It also agreed to purchase all necessary drugs and other supplies. All nursing personnel required by the anesthesia department were to be supplied by the hospital, but Roux had the right to approve their selection and retention.3 The hospital agreed to "restrict the use of its anesthesia department to Roux & Associates and [that] no other persons, parties or entities shall perform such services within the Hospital for the ter[m] of this contract." App. 19.4 The 1971 contract provided for a 1-year term automatically renewable for successive 1-year periods unless either party elected to terminate. In 1976, a second written contract was executed containing most of the provisions of the 1971 agreement. Its term was five years and the clause excluding other anesthesiologists from the hospital was deleted;5 the hospital nevertheless continued to regard itself as committed to a closed anesthesiology department. Only Roux was permitted to practice anesthesiology at the hospital. At the time of trial the department included four anesthesiologists. The hospital usually employed 13 or 14 certified registered nurse anesthetists.6 The exclusive contract had an impact on two different segments of the economy: consumers of medical services, and providers of anesthesiological services. Any consumer of medical services who elects to have an operation performed at East Jefferson Hospital may not employ any anesthesiologist not associated with Roux. No anesthesiologists except those employed by Roux may practice at East Jefferson.There are at least 20 hospitals in the New Orleans metropolitan area and about 70 percent of the patients living in Jefferson Parish go to hospitals other than East Jefferson. Because it regarded the entire New Orleans metropolitan area as the relevant geographic market in which hospitals compete, this evidence convinced the District Court that East Jefferson does not possess any significant "market power"; therefore it concluded that petitioners could not use the Roux contract to anticompetitive ends.7 The same evidence led the Court of Appeals to draw a different conclusion. Noting that 30 percent of the residents of the parish go to East Jefferson Hospital, and that in fact "patients tend to choose hospitals by location rather than price or quality," the Court of Appeals concluded that the relevant geographic market was the East Bank of Jefferson Parish. 686 F.2d, at 290. The conclusion that East Jefferson Hospital possessed market power in that area was buttressed by the facts that the prevalence of health insurance eliminates a patient's incentive to compare costs, that the patient is not sufficiently informed to compare quality, and that family convenience tends to magnify the importance of location.8 The Court of Appeals held that the case involves a "tying arrangement" because the "users of the hospital's operating rooms (the tying product) are also compelled to purchase the hospital's chosen anesthesia service (the tied product)." Id., at 289. Having defined the relevant geographic market for the tying product as the East Bank of Jefferson Parish, the court held that the hospital possessed "sufficient market power in the tying market to coerce purchasers of the tied product." Id., at 291. Since the purchase of the tied product constituted a "not insubstantial amount of interstate commerce," under the Court of Appeals' reading of our decision in Northern Pacific R. Co. v. United States, , the tying arrangement was therefore illegal "per se."9 IICertain types of contractual arrangements are deemed unreasonable as a matter of law.10 The character of the restraint produced by such an arrangement is considered a sufficient basis for presuming unreasonableness without the necessity of any analysis of the market context in which the arrangement may be found.11 A price-fixing agreement between competitors is the classic example of such an arrangement. Arizona v. Maricopa County Medical Society, . It is far too late in the history of our antitrust jurisprudence to question the proposition that certain tying arrangements pose an unacceptable risk of stifling competition and therefore are unreasonable "per se."12 The rule was first enunciated in International Salt Co. v. United States, ,13 and has been endorsed by this Court many times since.14 The rule also reflects congressional policies underlying the antitrust laws. In enacting 3 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 14, Congress expressed great concern about the anti-competitive character of tying arrangements. See H. R. Rep. No. 627, 63d Cong., 2d Sess., 10-13 (1914); S. Rep. No. 698, 63d Cong., 2d Sess., 6-9 (1914).15 While this case does not arise under the Clayton Act, the congressional finding made therein concerning the competitive consequences of tying is illuminating, and must be respected.16 It is clear, however, that not every refusal to sell two products separately can be said to restrain competition. If each of the products may be purchased separately in a competitive market, one seller's decision to sell the two in a single package imposes no unreasonable restraint on either market, particularly if competing suppliers are free to sell either the entire package or its several parts.17 For example, we have written that "if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself." Northern Pacific R. Co. v. United States, 356 U.S., at 7.18 Buyers often find package sales attractive; a seller's decision to offer such packages can merely be an attempt to compete effectively - conduct that is entirely consistent with the Sherman Act. See Fortner Enterprises v. United States Steel Corp., (Fortner I) (WHITE, J., dissenting); id., at 524-525 (Fortas, J., dissenting).Our cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. When such "forcing" is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated."Basic to the faith that a free economy best promotes the public weal is that goods must stand the cold test of competition; that the public, acting through the market's impersonal judgment, shall allocate the Nation's resources and thus direct the course its economic development will take... . By conditioning his sale of one commodity on the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the `tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the `tied' product would convince freely choosing buyers to select it over others anyway." Times-Picayune Publishing Co. v. United States, .19 Accordingly, we have condemned tying arrangements when the seller has some special ability - usually called "market power" - to force a purchaser to do something that he would not do in a competitive market. See United States Steel Corp. v. Fortner Enterprises, (Fortner II); Fortner I, 394 U.S., at 503-504; United States v. Loew's Inc., , 48, n. 5 (1962); Northern Pacific R. Co. v. United States, 356 U.S., at 6-7.20 When "forcing" occurs, our cases have found the tying arrangement to be unlawful.Thus, the law draws a distinction between the exploitation of market power by merely enhancing the price of the tying product, on the one hand, and by attempting to impose restraints on competition in the market for a tied product, on the other. When the seller's power is just used to maximize its return in the tying product market, where presumably its product enjoys some justifiable advantage over its competitors, the competitive ideal of the Sherman Act is not necessarily compromised. But if that power is used to impair competition on the merits in another market, a potentially inferior product may be insulated from competitive pressures.21 This impairment could either harm existing competitors or create barriers to entry of new competitors in the market for the tied product, Fortner I, 394 U.S., at 509,22 and can increase the social costs of market power by facilitating price discrimination, thereby increasing monopoly profits over what they would be absent the tie, Fortner II, 429 U.S., at 617.23 And from the standpoint of the consumer - whose interests the statute was especially intended to serve - the freedom to select the best bargain in the second market is impaired by his need to purchase the tying product, and perhaps by an inability to evaluate the true cost of either product when they are available only as a package.24 In sum, to permit restraint of competition on the merits through tying arrangements would be, as we observed in Fortner II, to condone "the existence of power that a free market would not tolerate." 429 U.S., at 617 (footnote omitted).Per se condemnation - condemnation without inquiry into actual market conditions - is only appropriate if the existence of forcing is probable.25 Thus, application of the per se rule focuses on the probability of anticompetitive consequences. Of course, as a threshold matter there must be a substantial potential for impact on competition in order to justify per se condemnation. If only a single purchaser were "forced" with respect to the purchase of a tied item, the resultant impact on competition would not be sufficient to warrant the concern of antitrust law. It is for this reason that we have refused to condemn tying arrangements unless a substantial volume of commerce is foreclosed thereby. See Fortner I, 394 U.S., at 501-502; Northern Pacific R. Co. v. United States, 356 U.S., at 6-7; Times-Picayune, 345 U.S., at 608-610; International Salt, 332 U.S., at 396. Similarly, when a purchaser is "forced" to buy a product he would not have otherwise bought even from another seller in the tied-product market, there can be no adverse impact on competition because no portion of the market which would otherwise have been available to other sellers has been foreclosed.Once this threshold is surmounted, per se prohibition is appropriate if anticompetitive forcing is likely. For example, if the Government has granted the seller a patent or similar monopoly over a product, it is fair to presume that the inability to buy the product elsewhere gives the seller market power. United States v. Loew's Inc., 371 U.S., at 45-47. Any effort to enlarge the scope of the patent monopoly by using the market power it confers to restrain competition in the market for a second product will undermine competition on the merits in that second market. Thus, the sale or lease of a patented item on condition that the buyer make all his purchases of a separate tied product from the patentee is unlawful. See United States v. Paramount Pictures, Inc., ; International Salt, 332 U.S., at 395-396; International Business Machines Corp. v. United States, .The same strict rule is appropriate in other situations in which the existence of market power is probable. When the seller's share of the market is high, see Times-Picayune Publishing Co. v. United States, 345 U.S., at 611-613, or when the seller offers a unique product that competitors are not able to offer, see Fortner I, 394 U.S., at 504-506, and n. 2, the Court has held that the likelihood that market power exists and is being used to restrain competition in a separate market is sufficient to make per se condemnation appropriate. Thus, in Northern Pacific R. Co. v. United States, , we held that the railroad's control over vast tracts of western real estate, although not itself unlawful, gave the railroad a unique kind of bargaining power that enabled it to tie the sales of that land to exclusive, long-term commitments that fenced out competition in the transportation market over a protracted period.26 When, however, the seller does not have either the degree or the kind of market power that enables him to force customers to purchase a second, unwanted product in order to obtain the tying product, an antitrust violation can be established only by evidence of an unreasonable restraint on competition in the relevant market. See Fortner I, 394 U.S., at 499-500; Times-Picayune Publishing Co. v. United States, 345 U.S., at 614-615.In sum, any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold, for that is where the anticompetitive forcing has its impact. Thus, in this case our analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services. In making that analysis, we must consider whether petitioners are selling two separate products that may be tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement.IIIThe hospital has provided its patients with a package that includes the range of facilities and services required for a variety of surgical operations.27 At East Jefferson Hospital the package includes the services of the anesthesiologist.28 Petitioners argue that the package does not involve a tying arrangement at all - that they are merely providing a functionally integrated package of services.29 Therefore, petitioners contend that it is inappropriate to apply principles concerning tying arrangements to this case.Our cases indicate, however, that the answer to the question whether one or two products are involved turns not on the functional relation between them, but rather on the character of the demand for the two items.30 In Times-Picayune Publishing Co. v. United States, , the Court held that a tying arrangement was not present because the arrangement did not link two distinct markets for products that were distinguishable in the eyes of buyers.31 In Fortner I, the Court concluded that a sale involving two independent transactions, separately priced and purchased from the buyer's perspective, was a tying arrangement.32 These cases make it clear that a tying arrangement cannot exist unless two separate product markets have been linked.The requirement that two distinguishable product markets be involved follows from the underlying rationale of the rule against tying. The definitional question depends on whether the arrangement may have the type of competitive consequences addressed by the rule.33 The answer to the question whether petitioners have utilized a tying arrangement must be based on whether there is a possibility that the economic effect of the arrangement is that condemned by the rule against tying - that petitioners have foreclosed competition on the merits in a product market distinct from the market for the tying item.34 Thus, in this case no tying arrangement can exist unless there is a sufficient demand for the purchase of anesthesiological services separate from hospital services to identify a distinct product market in which it is efficient to offer anesthesiological services separately from hospital services.35 Unquestionably, the anesthesiological component of the package offered by the hospital could be provided separately and could be selected either by the individual patient or by one of the patient's doctors if the hospital did not insist on including anesthesiological services in the package it offers to its customers. As a matter of actual practice, anesthesiological services are billed separately from the hospital services petitioners provide. There was ample and uncontroverted testimony that patients or surgeons often request specific anesthesiologists to come to a hospital and provide anesthesia, and that the choice of an individual anesthesiologist separate from the choice of a hospital is particularly frequent in respondent's specialty, obstetric anesthesiology.36 The District Court found that "[t]he provision of anesthesia services is a medical service separate from the other services provided by the hospital." 513 F. Supp., at 540.37 The Court of Appeals agreed with this finding, and went on to observe: "[A]n anesthesiologist is normally selected by the surgeon, rather than the patient, based on familiarity gained through a working relationship. Obviously, the surgeons who practice at East Jefferson Hospital do not gain familiarity with any anesthesiologists other than Roux and Associates." 686 F.2d, at 291.38 The record amply supports the conclusion that consumers differentiate between anesthesiological services and the other hospital services provided by petitioners.39 Thus, the hospital's requirement that its patients obtain necessary anesthesiological services from Roux combined the purchase of two distinguishable services in a single transaction.40 Nevertheless, the fact that this case involves a required purchase of two services that would otherwise be purchased separately does not make the Roux contract illegal. As noted above, there is nothing inherently anticompetitive about packaged sales. Only if patients are forced to purchase Roux's services as a result of the hospital's market power would the arrangement have anticompetitive consequences. If no forcing is present, patients are free to enter a competing hospital and to use another anesthesiologist instead of Roux.41 The fact that petitioners' patients are required to purchase two separate items is only the beginning of the appropriate inquiry.42 IVThe question remains whether this arrangement involves the use of market power to force patients to buy services they would not otherwise purchase. Respondent's only basis for invoking the per se rule against tying and thereby avoiding analysis of actual market conditions is by relying on the preference of persons residing in Jefferson Parish to go to East Jefferson, the closest hospital. A preference of this kind, however, is not necessarily probative of significant market power.Seventy percent of the patients residing in Jefferson Parish enter hospitals other than East Jefferson. 513 F. Supp., at 539. Thus East Jefferson's "dominance" over persons residing in Jefferson Parish is far from overwhelming.43 The fact that a substantial majority of the parish's residents elect not to enter East Jefferson means that the geographic data do not establish the kind of dominant market position that obviates the need for further inquiry into actual competitive conditions. The Court of Appeals acknowledged as much; it recognized that East Jefferson's market share alone was insufficient as a basis to infer market power, and buttressed its conclusion by relying on "market imperfections"44 that permit petitioners to charge noncompetitive prices for hospital services: the prevalence of third-party payment for health care costs reduces price competition, and a lack of adequate information renders consumers unable to evaluate the quality of the medical care provided by competing hospitals. 686 F.2d, at 290.45 While these factors may generate "market power" in some abstract sense,46 they do not generate the kind of market power that justifies condemnation of tying.Tying arrangements need only be condemned if they restrain competition on the merits by forcing purchases that would not otherwise be made. A lack of price or quality competition does not create this type of forcing. If consumers lack price consciousness, that fact will not force them to take an anesthesiologist whose services they do not want - their indifference to price will have no impact on their willingness or ability to go to another hospital where they can utilize the services of the anesthesiologist of their choice. Similarly, if consumers cannot evaluate the quality of anesthesiological services, it follows that they are indifferent between certified anesthesiologists even in the absence of a tying arrangement - such an arrangement cannot be said to have foreclosed a choice that would have otherwise been made "on the merits."Thus, neither of the "market imperfections" relied upon by the Court of Appeals forces consumers to take anesthesiological services they would not select in the absence of a tie. It is safe to assume that every patient undergoing a surgical operation needs the services of an anesthesiologist; at least this record contains no evidence that the hospital "forced" any such services on unwilling patients.47 The record therefore does not provide a basis for applying the per se rule against tying to this arrangement.VIn order to prevail in the absence of per se liability, respondent has the burden of proving that the Roux contract violated the Sherman Act because it unreasonably restrained competition. That burden necessarily involves an inquiry into the actual effect of the exclusive contract on competition among anesthesiologists. This competition takes place in a market that has not been defined. The market is not necessarily the same as the market in which hospitals compete in offering services to patients; it may encompass competition among anesthesiologists for exclusive contracts such as the Roux contract and might be statewide or merely local.48 There is, however, insufficient evidence in this record to provide a basis for finding that the Roux contract, as it actually operates in the market, has unreasonably restrained competition. The record sheds little light on how this arrangement affected consumer demand for separate arrangements with a specific anesthesiologist.49 The evidence indicates that some surgeons and patients preferred respondent's services to those of Roux, but there is no evidence that any patient who was sophisticated enough to know the difference between two anesthesiologists was not also able to go to a hospital that would provide him with the anesthesiologist of his choice.50 In sum, all that the record establishes is that the choice of anesthesiologists at East Jefferson has been limited to one of the four doctors who are associated with Roux and therefore have staff privileges.51 Even if Roux did not have an exclusive contract, the range of alternatives open to the patient would be severely limited by the nature of the transaction and the hospital's unquestioned right to exercise some control over the identity and the number of doctors to whom it accords staff privileges. If respondent is admitted to the staff of East Jefferson, the range of choice will be enlarged from four to five doctors, but the most significant restraints on the patient's freedom to select a specific anesthesiologist will nevertheless remain.52 Without a showing of actual adverse effect on competition, respondent cannot make out a case under the antitrust laws, and no such showing has been made.VIPetitioners' closed policy may raise questions of medical ethics,53 and may have inconvenienced some patients who would prefer to have their anesthesia administered by someone other than a member of Roux & Associates, but it does not have the obviously unreasonable impact on purchasers that has characterized the tying arrangements that this Court has branded unlawful. There is no evidence that the price, the quality, or the supply or demand for either the "tying product" or the "tied product" involved in this case has been adversely affected by the exclusive contract between Roux and the hospital. It may well be true that the contract made it necessary for Dr. Hyde and others to practice elsewhere, rather than at East Jefferson. But there has been no showing that the market as a whole has been affected at all by the contract. Indeed, as we previously noted, the record tells us very little about the market for the services of anesthesiologists. Yet that is the market in which the exclusive contract has had its principal impact. There is simply no showing here of the kind of restraint on competition that is prohibited by the Sherman Act. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.54 It is so ordered. |
0 | After respondent Moran pleaded not guilty to three counts of first-degree murder and two psychiatrists concluded that he was competent to stand trial, he informed the Nevada trial court that he wished to discharge his attorneys and change his pleas to guilty. The court found that Moran understood "the nature of the criminal charges against him" and was "able to assist in his defense"; that he was "knowingly and intelligently" waiving his right to the assistance of counsel; and that his guilty pleas were "freely and voluntarily" given. He was ultimately sentenced to death. When Moran subsequently sought state postconviction relief, the trial court held an evidentiary hearing before rejecting his claim that he was mentally incompetent to represent himself, and the State Supreme Court dismissed his appeal. A Federal District Court denied his petition for a writ of habeas corpus, but the Court of Appeals reversed. It concluded that due process required the trial court to hold a hearing to evaluate and determine Moran's competency before it accepted his decisions to waive counsel and plead guilty. It also found that the postconviction hearing did not cure the error, holding that the trial court's ruling was premised on the wrong legal standard because competency to waive constitutional rights requires a higher level of mental functioning than that required to stand trial. The court reasoned that, while a defendant is competent to stand trial if he has a rational and factual understanding of the proceedings and is capable of assisting his counsel, he is competent to waive counsel or plead guilty only if he has the capacity for reasoned choice among the available alternatives.Held: The competency standard for pleading guilty or waiving the right to counsel is the same as the competency standard for standing trial: whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "rational as well as factual understanding of the proceedings against him," Dusky v. United States, (per curiam). There is no reason for the competency standard for either of those decisions to be higher than that for standing trial. The decision to plead guilty, though profound, is no more complicated than the sum total of decisions that a defendant may have to make during the course of a trial, such as whether to testify, whether to waive a jury trial, and whether to cross-examine witnesses for the prosecution. Nor does the decision to waive counsel require an appreciably higher level of mental functioning than the decision to waive other constitutional rights. A higher standard is not necessary in order to ensure that a defendant is competent to represent himself, because the ability to do so has no bearing upon his competence to choose self-representation, Faretta v. California, . When, in Westbrook v. Arizona, (per curiam), this Court vacated a lower court ruling because there had been no "hearing or inquiry into the issue of [the petitioner's] competence to waive his constitutional right to the assistance of counsel," it did not mean to suggest that the Dusky formulation is not a high enough standard in cases in which the defendant seeks to waive counsel. Rather, the "competence to waive" language was simply a shorthand for the "intelligent and competent waiver" requirement of Johnson v. Zerbst, . Thus, Westbrook stands only for the unremarkable proposition that, when a defendant seeks to waive his right to counsel, a determination that he is competent to stand trial is not enough; the waiver must also be intelligent and voluntary before it can be accepted. While States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose them. Pp. 396-402. 972 F.2d 263, reversed and remanded.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SOUTER, JJ., joined, and in Parts I, II-B, and III of which SCALIA and KENNEDY, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined, post, p. 402. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 409.David F. Sarnowski, Chief Deputy Attorney General of Nevada, argued the cause for petitioner. With him on the brief were Frankie Sue Del Papa, Attorney General, and Brooke A. Nielsen, Assistant Attorney General.Amy L. Wax argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Bryson, Acting Assistant Attorney General Keeney, and Joel M. Gershowitz.Cal J. Potter III, by appointment of the Court, argued the cause for respondent. With him on the brief was Edward M. Chikofsky.* [Footnote *] Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Steven R. Shapiro, Diann Y. Rust-Tierney, John A. Powell, and Bruce J. Winick; for the American Psychiatric Association et al. by James W. Ellis and Barbara E. Bergman; and for the National Association of Criminal Defense Lawyers by Jon May.JUSTICE THOMAS delivered the opinion of the Court.This case presents the question whether the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial. We hold that it is not.IOn August 2, 1984, in the early hours of the morning, respondent entered the Red Pearl Saloon in Las Vegas, Nevada, and shot the bartender and a patron four times each with an automatic pistol. He then walked behind the bar and removed the cash register. Nine days later, respondent arrived at the apartment of his former wife and opened fire on her; five of his seven shots hit their target. Respondent then shot himself in the abdomen and attempted, without success, to slit his wrists. Of the four victims of respondent's gunshots, only respondent himself survived. On August 13, respondent summoned police to his hospital bed and confessed to the killings.After respondent pleaded not guilty to three counts of first-degree murder, the trial court ordered that he be examined by a pair of psychiatrists, both of whom concluded that he was competent to stand trial.1 The State thereafter announced its intention to seek the death penalty. On November 28, 1984, 2 1/2 months after the psychiatric evaluations, respondent again appeared before the trial court. At this time, respondent informed the court that he wished to discharge his attorneys and change his pleas to guilty. The reason for the request, according to respondent, was to prevent the presentation of mitigating evidence at his sentencing.On the basis of the psychiatric reports, the trial court found that respondent"is competent in that he knew the nature and quality of his acts, had the capacity to determine right from wrong; that he understands the nature of the criminal charges against him and is able to assist in his defense of such charges, or against the pronouncement of the judgment thereafter; that he knows the consequences of entering a plea of guilty to the charges; and that he can intelligently and knowingly waive his constitutional right to assistance of an attorney." App. 21. The court advised respondent that he had a right both to the assistance of counsel and to self-representation, warned him of the "dangers and disadvantages" of self-representation, id., at 22, inquired into his understanding of the proceedings and his awareness of his rights, and asked why he had chosen to represent himself. It then accepted respondent's waiver of counsel. The court also accepted respondent's guilty pleas, but not before it had determined that respondent was not pleading guilty in response to threats or promises, that he understood the nature of the charges against him and the consequences of pleading guilty, that he was aware of the rights he was giving up, and that there was a factual basis for the pleas. The trial court explicitly found that respondent was "knowingly and intelligently" waiving his right to the assistance of counsel, ibid., and that his guilty pleas were "freely and voluntarily" given, id., at 64.2 On January 21, 1985, a three-judge court sentenced respondent to death for each of the murders. The Supreme Court of Nevada affirmed respondent's sentences for the Red Pearl Saloon murders, but reversed his sentence for the murder of his ex-wife and remanded for imposition of a life sentence without the possibility of parole. Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987).On July 30, 1987, respondent filed a petition for post-conviction relief in state court. Following an evidentiary hearing, the trial court rejected respondent's claim that he was "mentally incompetent to represent himself," concluding that "the record clearly shows that he was examined by two psychiatrists, both of whom declared [him] competent." App. to Pet. for Cert. D-8. The Supreme Court of Nevada dismissed respondent's appeal, Moran v. Warden, 105 Nev. 1041, 810 P.2d 335, and we denied certiorari, .Respondent then filed a habeas petition in the United States District Court for the District of Nevada. The District Court denied the petition, but the Ninth Circuit reversed. 972 F.2d 263 (1992). The Court of Appeals concluded that the "record in this case" should have led the trial court to "entertai[n] a good faith doubt about [respondent's] competency to make a voluntary, knowing, and intelligent waiver of constitutional rights," id., at 265,3 and that the Due Process Clause therefore "required the court to hold a hearing to evaluate and determine [respondent's] competency ... before it accepted his decision to discharge counsel and change his pleas," ibid. Rejecting petitioner's argument that the trial court's error was "cured by the postconviction hearing," ibid., and that the competency determination that followed the hearing was entitled to deference under 28 U.S.C. 2254(d), the Court of Appeals held that "the state court's postconviction ruling was premised on the wrong legal standard of competency," 972 F.2d, at 266. "Competency to waive constitutional rights," according to the Court of Appeals, "requires a higher level of mental functioning than that required to stand trial"; while a defendant is competent to stand trial if he has "a rational and factual understanding of the proceedings and is capable of assisting his counsel," a defendant is competent to waive counsel or plead guilty only if he has "the capacity for `reasoned choice' among the alternatives available to him." Ibid. The Court of Appeals determined that the trial court had "erroneously applied the standard for evaluating competency to stand trial, instead of the correct `reasoned choice' standard," id., at 266-267, and further concluded that, when examined "in light of the correct legal standard," the record did not support a finding that respondent was "mentally capable of the reasoned choice required for a valid waiver of constitutional rights," id., at 267.4 The Court of Appeals accordingly instructed the District Court to issue the writ of habeas corpus within 60 days, "unless the state court allows [respondent] to withdraw his guilty pleas, enter new pleas, and proceed to trial with the assistance of counsel." Id., at 268.Whether the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial is a question that has divided the Federal Courts of Appeals5 and state courts of last resort.6 We granted certiorari to resolve the conflict. .IIA criminal defendant may not be tried unless he is competent. Pate v. Robinson, , and he may not waive his right to counsel or plead guilty unless he does so "competently and intelligently," Johnson v. Zerbst, ; accord, Brady v. United States, . In Dusky v. United States, (per curiam), we held that the standard for competence to stand trial is whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and has "a rational as well as factual understanding of the proceedings against him." Ibid. (internal quotation marks omitted). Accord, Drope v. Missouri, ("[A] person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial"). While we have described the standard for competence to stand trial, however, we have never expressly articulated a standard for competence to plead guilty or to waive the right to the assistance of counsel.Relying in large part upon our decision in Westbrook v. Arizona, (per curiam), the Ninth Circuit adheres to the view that the competency standard for pleading guilty or waiving the right to counsel is higher than the competency standard for standing trial. See Sieling v. Eyman, 478 F.2d 211, 214-215 (1973) (first Ninth Circuit decision applying heightened standard). In Westbrook, a two-paragraph per curiam opinion, we vacated the lower court's judgment affirming the petitioner's conviction, because there had been "a hearing on the issue of [the petitioner's] competence to stand trial," but "no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel." 384 U.S., at 150. The Ninth Circuit has reasoned that the "clear implication" of Westbrook is that the Dusky formulation is not "a high enough standard" for determining whether a defendant is competent to waive a constitutional right. Sieling, 478 F.2d, at 214.7 We think the Ninth Circuit has read too much into Westbrook, and we think it errs in applying two different competency standards.8 AThe standard adopted by the Ninth Circuit is whether a defendant who seeks to plead guilty or waive counsel has the capacity for "reasoned choice" among the alternatives available to him. How this standard is different from (much less higher than) the Dusky standard - whether the defendant has a "rational understanding" of the proceedings - is not readily apparent to us. In fact, respondent himself opposed certiorari on the ground that the difference between the two standards is merely one of "terminology," Brief in Opposition 4, and he devotes little space in his brief on the merits to a defense of the Ninth Circuit's standard, see, e.g., Brief for Respondent 17-18, 27, 32; see also Tr. of Oral Arg. 33 ("Due process does not require [a] higher standard, [it] requires a separate inquiry").9 But even assuming that there is some meaningful distinction between the capacity for ["reasoned choice"] and a ["rational understanding"] of the proceedings, we reject the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from) the Dusky standard.We begin with the guilty plea. A defendant who stands trial is likely to be presented with choices that entail relinquishment of the same rights that are relinquished by a defendant who pleads guilty: he will ordinarily have to decide whether to waive his "privilege against compulsory self-incrimination," Boykin v. Alabama, , by taking the witness stand; if the option is available, he may have to decide whether to waive his "right to trial by jury," ibid.; and, in consultation with counsel, he may have to decide whether to waive his "right to confront [his] accusers," ibid., by declining to cross-examine witnesses for the prosecution. A defendant who pleads not guilty, moreover, faces still other strategic choices: in consultation with his attorney, he may be called upon to decide, among other things, whether (and how) to put on a defense and whether to raise one or more affirmative defenses. In sum, all criminal defendants - not merely those who plead guilty - may be required to make important decisions once criminal proceedings have been initiated. And while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions that a defendant may be called upon to make during the course of a trial. (The decision to plead guilty is also made over a shorter period of time, without the distraction and burden of a trial.) This being so, we can conceive of no basis for demanding a higher level of competence for those defendants who choose to plead guilty. If the Dusky standard is adequate for defendants who plead not guilty, it is necessarily adequate for those who plead guilty.Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights. Respondent suggests that a higher competency standard is necessary because a defendant who represents himself "`must have greater powers of comprehension, judgment, and reason than would be necessary to stand trial with the aid of an attorney.'" Brief for Respondent 26 (quoting Silten & Tullis, Mental Competency in Criminal Proceedings, 28 Hastings L.J. 1053, 1068 (1977)). Accord, Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 112. But this argument has a flawed premise; [the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.]10 In Faretta v. California, , we held that a defendant choosing self-representation must do so "competently and intelligently," id., at 835, but we made it clear that the defendant's "technical legal knowledge" is "not relevant" to the determination whether he is competent to waive his right to counsel, id., at 836, and we emphasized that, although the defendant "may conduct his own defense ultimately to his own detriment, his choice must be honored," id., at 834. Thus, while "[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts," ibid., [a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation.]11 BA finding that a defendant is competent to stand trial, however, is not all that is necessary before he may be permitted to plead guilty or waive his right to counsel. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. Parke v. Raley, (guilty plea); Faretta, supra, at 835 (waiver of counsel). In this sense, there is a "heightened" standard for pleading guilty and for waiving the right to counsel, but it is not a heightened standard of competence.12 This two-part inquiry13 is what we had in mind in Westbrook. When we distinguished between "competence to stand trial" and "competence to waive [the] constitutional right to the assistance of counsel," 384 U.S., at 150, we were using "competence to waive" as a shorthand for the "intelligent and competent waiver" requirement of Johnson v. Zerbst. This much is clear from the fact that we quoted that very language from Zerbst immediately after noting that the trial court had not determined whether the petitioner was competent to waive his right to counsel. See 384 U.S., at 150 ("`This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused'") (quoting Johnson v. Zerbst, 304 U.S., at 465). Thus, [Westbrook stands only for the unremarkable proposition] that, when a defendant seeks to waive his right to counsel, a determination that he is competent to stand trial is not enough; [the waiver must also be intelligent and voluntary before it can be accepted.]14 IIIRequiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel. While psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements. Cf. Medina v. California, . The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.So ordered. |
8 | Respondent Arkoma Associates, a limited partnership organized under Arizona law, sued petitioners Carden and Limes on a contract dispute in the District Court, relying on diversity of citizenship for federal jurisdiction. Carden and Limes, Louisiana citizens, moved to dismiss on the ground that one of Arkoma's limited partners was also a Louisiana citizen. The court denied the motion, finding the requisite "complete diversity." After petitioner Magee Drilling Co. intervened and counter-claimed against Arkoma, the court awarded judgment to Arkoma. The Court of Appeals affirmed, finding, with respect to the jurisdictional challenge, that complete diversity existed because Arkoma's citizenship should be determined by reference to the citizenship of its general, but not its limited, partners.Held: 1. Complete diversity is lacking with respect to Carden and Limes. Pp. 187-197. (a) A limited partnership is not in its own right a "citizen" of the State that created it within the meaning of the federal diversity statute. This Court has firmly resisted extending the well-established rule treating corporations as "citizens" to other artificial entities. Chapman v. Barney, ; Great Southern Fire Proof Hotel Co. v. Jones, , 457; Steelworkers v. R. H. Bouligny Inc., . Puerto Rico v. Russell & Co., ; Navarro Savings Assn. v. Lee, , distinguished. Pp. 187-192. (b) A federal court must look to the citizenship of a partnership's limited, as well as its general, partners to determine whether there is complete diversity. That only the general partners have exclusive and complete control over the partnership's operations and the litigation is irrelevant. This Court's decisions have never held that an artificial entity can invoke diversity jurisdiction based on the citizenship of some but not all of its members. Bank of United States v. Deveaux, 5 Cranch 61, 90-91; Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 328-329; Navarro, supra, distinguished. Pp. 192-196. (c) Whether, and which, artificial entities other than corporations are entitled to be considered "citizens" for diversity purposes are complex questions best left to Congress to decide. Pp. 196-197. 2. The question whether complete diversity exists between Magee and Arkoma was not considered by the Court of Appeals, and this Court will not decide it in the first instance. P. 197. 874 F.2d 226, reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 198.Richard K. Ingolia argued the cause for petitioners. With him on the briefs was Kenneth J. Berke.Mitchell J. Hoffman argued the cause for respondent. With him on the brief was Max J. Cohen.JUSTICE SCALIA delivered the opinion of the Court.The question presented in this case is whether, in a suit brought by a limited partnership, the citizenship of the limited partners must be taken into account to determine diversity of citizenship among the parties.IRespondent Arkoma Associates (Arkoma), a limited partnership organized under the laws of Arizona, brought suit on a contract dispute in the United States District Court for the Eastern District of Louisiana, relying upon diversity of citizenship for federal jurisdiction. The defendants, C. Tom Carden and Leonard L. Limes, citizens of Louisiana, moved to dismiss, contending that one of Arkoma's limited partners was also a citizen of Louisiana. The District Court denied the motion but certified the question for interlocutory appeal, which the Fifth Circuit declined. Thereafter Magee Drilling Company intervened in the suit and, together with the original defendants, counterclaimed against Arkoma under Texas law. Following a bench trial, the District Court awarded Arkoma a money judgment plus interest and attorney's fees; it dismissed Carden and Limes' counterclaim as well as Magee's intervention and counterclaim. Carden, Limes, and Magee (petitioners here) appealed, and the Fifth Circuit affirmed. 874 F.2d 226 (1988). With respect to petitioners' jurisdictional challenge, the Court of Appeals found complete diversity, reasoning that Arkoma's citizenship should be determined by reference to the citizenship of the general, but not the limited, partners. We granted certiorari. .IIArticle III of the Constitution provides, in pertinent part, that "[t]he judicial Power shall extend to ... Controversies ... between Citizens of different States." Congress first authorized the federal courts to exercise diversity jurisdiction in the Judiciary Act of 1789, ch. 20, 11, 1 Stat. 78. In its current form, the diversity statute provides that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds ... $50,000 ..., and is between ... citizens of different States ... ." 28 U.S.C. 1332(a). Since its enactment, we have interpreted the diversity statute to require "complete diversity" of citizenship. See Strawbridge v. Curtiss, 3 Cranch 267 (1806). The District Court erred in finding complete diversity in this case unless (1) a limited partnership may be considered in its own right a "citizen" of the State that created it, or (2) a federal court must look to the citizenship of only its general, but not its limited, partners to determine whether there is complete diversity of citizenship. We consider these questions in turn.AWe have often had to consider the status of artificial entities created by state law insofar as that bears upon the existence of federal diversity jurisdiction. The precise question posed under the terms of the diversity statute is whether such an entity may be considered a "citizen" of the State under whose laws it was created.1 A corporation is the paradigmatic artificial "person," and the Court has considered its proper characterization under the diversity statute on more than one occasion - not always reaching the same conclusion. Initially, we held that a corporation "is certainly not a citizen," so that to determine the existence of diversity jurisdiction the Court must "look to the character of the individuals who compose [it]." Bank of United States v. Deveaux, 5 Cranch 61, 86, 91-92 (1809). We overruled Deveaux 35 years later in Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558 (1844), which held that a corporation is "capable of being treated as a citizen of [the State which created it], as much as a natural person." Ten years later, we reaffirmed the result of Letson, though on the somewhat different theory that "those who use the corporate name, and exercise the faculties conferred by it," should be presumed conclusively to be citizens of the corporation's State of incorporation. Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 329 (1854). While the rule regarding the treatment of corporations as "citizens" has become firmly established, we have (with an exception to be discussed presently) just as firmly resisted extending that treatment to other entities. For example, in Chapman v. Barney, , a case involving an unincorporated "joint stock company," we raised the question of jurisdiction on our own motion, and found it to be lacking: "On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is, that the United States Express Company is a joint stock company organized under a law of the State of New York, and is a citizen of that State. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact the allegation is, that the company is not a corporation, but a joint stock company - that is, a mere partnership." Id., at 682. Similarly, in Great Southern Fire Proof Hotel Co. v. Jones, , we held that a "limited partnership association" - although possessing "some of the characteristics of a corporation" and deemed a "citizen" by the law creating it - may not be deemed a "citizen" under the jurisdictional rule established for corporations. Id., at 456. "That rule must not be extended." Id., at 457. As recently as 1965, our unanimous opinion in Steelworkers v. R. H. Bouligny, Inc., , reiterated that "the doctrinal wall of Chapman v. Barney," id., at 151, would not be breached.The one exception to the admirable consistency of our jurisprudence on this matter is Puerto Rico v. Russell & Co., , which held that the entity known as a sociedad en comandita, created under the civil law of Puerto Rico, could be treated as a citizen of Puerto Rico for purposes of determining federal-court jurisdiction. The sociedad's juridical personality, we said, "is so complete in contemplation of the law of Puerto Rico that we see no adequate reason for holding that the sociedad has a different status for purposes of federal jurisdiction than a corporation organized under that law." Id., at 482. Arkoma fairly argues that this language, and the outcome of the case, "reflec[t] the Supreme Court's willingness to look beyond the incorporated/unincorporated dichotomy and to study the internal organization, state law requirements, management structure, and capacity or lack thereof to act and/or sue, to determine diversity of citizenship." Brief for Respondent 14. The problem with this argument lies not in its logic, but in the fact that the approach it espouses was proposed and specifically rejected in Bouligny. There, in reaffirming "the doctrinal wall of Chapman v. Barney," we explained Russell as a case resolving the distinctive problem "of fitting an exotic creation of the civil law ... into a federal scheme which knew it not." 382 U.S., at 151. There could be no doubt, after Bouligny that at least common-law entities (and likely all entities beyond the Puerto Rican sociedad en comandita) would be treated for purposes of the diversity statute pursuant to what Russell called "[t]he tradition of the common law," which is "to treat as legal persons only incorporated groups and to assimilate all others to partnerships." 288 U.S., at 480.2 Arkoma claims to have found another exception to our Chapman tradition in Navarro Savings Assn. v. Lee, . That case, however, did not involve the question whether a party that is an artificial entity other than a corporation can be considered a "citizen" of a State, but the quite separate question whether parties that were undoubted "citizens" (viz., natural persons) were the real parties to the controversy. The plaintiffs in Navarro were eight individual trustees of a Massachusetts business trust, suing in their own names. The defendant, Navarro Savings Association, disputed the existence of complete diversity, claiming that the trust beneficiaries rather than the trustees were the real parties to the controversy, and that the citizenship of the former and not the latter should therefore control. In the course of rejecting this claim, we did indeed discuss the characteristics of a Massachusetts business trust - not at all, however, for the purpose of determining whether the trust had attributes making it a "citizen," but only for the purpose of establishing that the respondents were "active trustees whose control over the assets held in their names is real and substantial," thereby bringing them under the rule, "more than 150 years" old, which permits such trustees "to sue in their own right, without regard to the citizenship of the trust beneficiaries." Id., at 465-466. Navarro, in short, has nothing to do with the Chapman question, except that it makes available to respondent the argument by analogy that, just as business reality is taken into account for purposes of determining whether a trustee is the real party to the controversy, so also it should be taken into account for purposes of determining whether an artificial entity is a citizen. That argument is, to put it mildly, less than compelling.BAs an alternative ground for finding complete diversity, Arkoma asserts that the Fifth Circuit correctly determined its citizenship solely by reference to the citizenship of its general partners, without regard to the citizenship of its limited partners. Only the general partners, it points out, "manage the assets, control the litigation, and bear the risk of liability for the limited partnership's debts," and, more broadly, "have exclusive and complete management and control of the operations of the partnership." Brief for Respondent 30, 36. This approach of looking to the citizenship of only some of the members of the artificial entity finds even less support in our precedent than looking to the State of organization (for which one could at least point to Russell). We have never held that an artificial entity, suing or being sued in its own name, can invoke the diversity jurisdiction of the federal courts based on the citizenship of some but not all of its members. No doubt some members of the joint stock company in Chapman, the labor union in Bouligny, and the limited partnership association in Great Southern exercised greater control over their respective entities than other members. But such considerations have played no part in our decisions.To support its approach, Arkoma seeks to press Navarro into service once again, arguing that just as that case looked to the trustees to determine the citizenship of the business trust, so also here we should look to the general partners, who have the management powers, in determining the citizenship of this partnership. As we have already explained, however, Navarro had nothing to do with the citizenship of the "trust," since it was a suit by the trustees in their own names.The dissent supports Arkoma's argument on this point, though, as we have described, under the rubric of determining which parties supposedly before the Court are the real parties, rather than under the rubric of determining the citizenship of the limited partnership. See n. 1, supra. The dissent asserts that "[t]he real party to the controversy approach," post, at 201 - by which it means an approach that looks to "control over the conduct of the business and the ability to initiate or control the course of litigation," post, at 204 - "has been implemented by the Court both in its oldest and in its most recent cases examining diversity jurisdiction with respect to business associations." Post, at 201. Not a single case the dissent discusses, either old or new, supports that assertion. Deveaux, which was in any event overruled by Letson, seems to be applying not a "real party to the controversy" test, but rather the principle that for jurisdictional purposes the corporation has no substance, and merely "represents" its shareholders, see 5 Cranch, at 90-91; but even if it can be regarded as applying a "real party to the controversy" test, it deems that test to be met by all the shareholders of the corporation, without regard to their "control over the operation of the business." Marshall, which as we have discussed rerationalized Letson's holding that a corporation was a "citizen" in its own right, contains language quite clearly adopting a "real party to the controversy" approach, and arguably even adopting a "control" test for that status. ("[T]he court ... will look behind the corporate or collective name ... to find the persons who act as the representatives, curators, or trustees ... ." 16 How., at 328-329 (emphasis added). "The presumption arising from the habitat of a corporation in the place of its creation [is] conclusive as to the residence or citizenship of those who use the corporate name and exercise the faculties conferred by it ... ." Id., at 329 (emphasis added).) But as we have also discussed, and as the last quotation shows, that analysis was a complete fiction; the real citizenship of the shareholders (or the controlling shareholders) was not consulted at all.3 From the fictional Marshall, the dissent must leap almost a century and a third to Navarro to find a "real party to the controversy" analysis that discusses "control." That case, as we have said, is irrelevant, since it involved not a juridical person but the distinctive common-law institution of trustees.The dissent finds its position supported, rather than contradicted, by the trilogy of Chapman, Great Southern, and Bouligny - cases that did involve juridical persons but that did not apply "real party to the controversy" analysis, much less a "control" test as the criterion for that status. In those cases, the dissent explains, "the members of each association held equivalent power and control over the association's assets, business, and litigation." Post, at 202. It seeks to establish this factual matter, however, not from the text of the opinions (where not the slightest discussion of the point appears) but, for Chapman, by citation of scholarly commentary dealing with the general characteristics of joint stock company agreements, with no reference to (because the record does not contain) the particular agreement at issue in the case, post, at 202-203; for Great Southern, by citation of scholarly commentary dealing with the general characteristics of Pennsylvania limited partnership associations, and citation of Pennsylvania statutes, post, at 203; and, for Bouligny, by nothing more than the observation that "[t]here was no indication that any of the union members had any greater power over the litigation or the union's business and assets than any other member, and, therefore, as in Chapman and Great Southern, the Court was not called upon to decide" the issue, post, at 204. This will not do. Since diversity of citizenship is a jurisdictional requirement, the Court is always "called upon to decide" it. As the Court said in Great Southern itself:"[T]he failure of parties to urge objections [to diversity of citizenship] cannot relieve this court from the duty of ascertaining from the record whether the Circuit Court could properly take jurisdiction of this suit... . `The rule ... is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act.'" 177 U.S., at 453 (quoting Mansfield, C. & L. M. R. Co. v. Swan, ). If, as the dissent contends, these three cases were applying a "real party to the controversy" test governed by "control" over the associations, so that the citizenship of all members would be consulted only if all members had equivalent control, it is inconceivable that the existence of equivalency, or at least the absence of any reason to suspect nonequivalency, would not have been mentioned in the opinions. Given what 180 years of cases have said and done, as opposed to what they might have said, it is difficult to understand how the dissent can characterize as "newly formulated" the "rule that the Court will, without analysis of the particular entity before it, count every member of an unincorporated association for purposes of diversity jurisdiction." Post, at 199.In sum, we reject the contention that to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity's members. We adhere to our oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of "all the members," Chapman, 129 U.S., at 682, "the several persons composing such association," Great Southern, 177 U.S., at 456, "each of its members," Bouligny, 382 U.S., at 146.CThe resolutions we have reached above can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations raised by the changing realities of business organization. But, as must be evident from our earlier discussion, that has been the character of our jurisprudence in this field after Letson. See Currie, The Federal Courts and the American Law Institute, 36 U. Chi. L. Rev. 1, 35 (1968). Arkoma is undoubtedly correct that limited partnerships are functionally similar to "other types of organizations that have access to federal courts," and is perhaps correct that "[c]onsiderations of basic fairness and substance over form require that limited partnerships receive similar treatment." Brief for Respondent 33. Similar arguments were made in Bouligny. The District Court there had upheld removal because it could divine "`no common sense reason for treating an unincorporated national labor union differently from a corporation,'" 382 U.S., at 146, and we recognized that that contention had "considerable merit," id., at 150. We concluded, however, that "[w]hether unincorporated labor unions ought to be assimilated to the status of corporations for diversity purposes," id., at 153, is "properly a matter for legislative consideration which cannot adequately or appropriately be dealt with by this Court," id., at 147. In other words, having entered the field of diversity policy with regard to artificial entities once (and forcefully) in Letson, we have left further adjustments to be made by Congress.Congress has not been idle. In 1958 it revised the rule established in Letson, providing that a corporation shall be deemed a citizen not only of its State of incorporation but also "of the State where it has its principal place of business." 28 U.S.C. 1332(c). No provision was made for the treatment of artificial entities other than corporations, although the existence of many new, post-Letson forms of commercial enterprises, including at least the sort of joint stock company at issue in Chapman, the sort of limited partnership association at issue in Great Southern, and the sort of Massachusetts business trust at issue in Navarro, must have been obvious.Thus, the course we take today does not so much disregard the policy of accommodating our diversity jurisdiction to the changing realities of commercial organization, as it honors the more important policy of leaving that to the people's elected representatives. Such accommodation is not only performed more legitimately by Congress than by courts, but it is performed more intelligently by legislation than by interpretation of the statutory word "citizen." The 50 States have created, and will continue to create, a wide assortment of artificial entities possessing different powers and characteristics, and composed of various classes of members with varying degrees of interest and control. Which of them is entitled to be considered a "citizen" for diversity purposes, and which of their members' citizenship is to be consulted, are questions more readily resolved by legislative prescription than by legal reasoning, and questions whose complexity is particularly unwelcome at the threshold stage of determining whether a court has jurisdiction. We have long since decided that, having established special treatment for corporations, we will leave the rest to Congress; we adhere to that decision.IIIArkoma argues that even if this Court finds complete diversity lacking with respect to Carden and Limes, we should nonetheless affirm the judgment with respect to Magee because complete diversity indisputably exists between Magee and Arkoma. This question was not considered by the Court of Appeals. We decline to decide it in the first instance, and leave it to be resolved by the Court of Appeals on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
9 | Section 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 removes the federal income tax exemption for interest earned on publicly offered long-term bonds (hereinafter referred to as bonds) issued by state and local governments (hereinafter referred to collectively as States) unless those bonds are issued in registered (as opposed to bearer) form. South Carolina invoked this Court's original jurisdiction, contending that 310(b)(1) is constitutionally invalid under the Tenth Amendment and the doctrine of intergovernmental tax immunity. A Special Master was appointed. After conducting hearings and taking evidence, he concluded that 310(b)(1) is constitutional and recommended entering judgment for the defendant. South Carolina and the National Governors' Association (NGA), as an intervenor, filed exceptions to various factual findings of the Master and to his legal conclusions concerning their constitutional challenges.Held: 1. Section 310(b)(1) does not violate the Tenth Amendment or constitutional principles of federalism by effectively compelling States to issue bonds in registered form. Pp. 511-515. (a) The Tenth Amendment limits on Congress' authority to regulate state activities are structural, not substantive - that is, the States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity. In this case, South Carolina has not even alleged that it was deprived of any right to participate in the national political process or that it was singled out in a way that left it politically isolated and powerless. The allegations South Carolina does make - that Congress was uninformed and chose an ineffective remedy - do not amount to an allegation that the political process operated in a defective manner. Pp. 512-513. (b) NGA's contention that 310 is invalid because it commandeers the state legislative and administrative process by coercing States into enacting legislation authorizing bond registration and into administering the registration scheme finds no support in the claim left open by FERC v. Mississippi, . Section 310 regulates state activities; it does not, as did the statute in FERC, seek to control or influence the manner in which States regulate private parties. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect. Moreover, under NGA's theory, any State could immunize its activities from federal regulation by simply codifying the manner in which it engages in those activities. Pp. 513-515. 2. Section 310(b)(1) does not violate the doctrine of intergovernmental tax immunity by taxing the interest earned on unregistered state bonds. Section 310(b)(1) is inconsistent with this Court's holding in Pollock v. Farmers' Loan & Trust Co., , that state bond interest was immune from a nondiscriminatory federal tax, but that decision has been effectively overruled by subsequent case law. Under the intergovernmental tax immunity jurisprudence prevailing at Pollock's time, neither the Federal nor the State Governments could tax income that an individual directly derived from any contract with the other government. This general rule was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax "on" the government because it burdened the government's power to enter into the contract. That rationale has been repudiated by modern intergovernmental tax immunity case law, and the government contract immunities have been, one by one, overruled. The owners of state bonds have no constitutional entitlement not to pay taxes on income they earn from the bonds, and States have no constitutional entitlement to issue bonds paying lower interest rates than other issuers. The nondiscriminatory tax under 310 is imposed on and collected from bondholders, not States, and any increased administrative costs incurred by States in implementing the registration system are not "taxes" within the meaning of the tax immunity doctrine. Moreover, the provisions of 310 seek to assure that all publicly offered long-term bonds are issued in registered form, whether issued by state or local governments, the Federal Government, or private corporations. Pp. 515-527. Exceptions to Special Master's Report overruled, and judgment entered for defendant.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and in which SCALIA, J., joined except for Part II. STEVENS, J., filed a concurring opinion, post, p. 527. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 528. REHNQUIST, C. J., filed an opinion concurring in the judgment, post, p. 528. O'CONNOR, J., filed a dissenting opinion, post, p. 530. KENNEDY, J., took no part in the consideration or decision of the case. John P. Linton argued the cause for plaintiff. With him on the brief were Charlton deSaussure, Jr., T. Travis Medlock, Attorney General of South Carolina, Frank K. Sloan, Chief Deputy Attorney General, and Grady L. Patterson III.Lewis B. Kaden argued the cause for plaintiff-in-intervention National Governors' Association. With him on the briefs were James D. Liss, Barry Friedman, and Richard B. Geltman.Solicitor General Fried argued the cause for defendant. With him on the brief were Acting Assistant Attorney General Durney, Deputy Solicitor General Lauber, Andrew J. Pincus, Michael L. Paup, and Francis M. Allegra.* [Footnote *] Briefs of amici curiae were filed for the Commonwealth of Pennsylvania et al. by LeRoy S. Zimmerman, Attorney General of Pennsylvania, Michael A. Roman, Deputy Attorney General, and Suellen M. Wolfe, Chief Deputy Attorney General, and by the Attorneys General for their respective States as follows: Grace Berg Schaible of Alaska, Robert K. Corbin of Arizona, Robert Butterworth of Florida, Warren Price III of Hawaii, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Anthony J. Celebrezze, Jr., of Ohio, Robert Henry of Oklahoma, Jeffrey Amestoy of Vermont, Mary Sue Terry of Virginia, Charlie Brown of West Virginia, Donald J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming; for the Government Finance Officers Association by John J. Keohane and Donald J. Robinson; and for the Public Securities Association by Glenn M. Young, Paul E. Gutermann, and Joseph R. Cortese.JUSTICE BRENNAN delivered the opinion of the Court.Section 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, 96 Stat. 596, 26 U.S.C. 103(j)(1), removes the federal income tax exemption for interest earned on publicly offered long-term bonds issued by state and local governments unless those bonds are issued in registered form.1 This original jurisdiction case presents the issues whether 310(b)(1) of TEFRA either (1) violates the Tenth Amendment and constitutional principles of federalism by compelling States to issue bonds in registered form or (2) violates the doctrine of intergovernmental tax immunity by taxing the interest earned on unregistered state bonds.IHistorically, bonds have been issued as either registered bonds or bearer bonds. These two types of bonds differ in the mechanisms used for transferring ownership and making payments. Ownership of a registered bond is recorded on a central list, and a transfer of record ownership requires entering the change on that list.2 The record owner automatically receives interest payments by check or electronic transfer of funds from the issuer's paying agent. Ownership of a bearer bond, in contrast, is presumed from possession and is transferred by physically handing over the bond. The bondowner obtains interest payments by presenting bond coupons to a bank that in turn presents the coupons to the issuer's paying agent.In 1982, Congress enacted TEFRA, which contains a variety of provisions, including 310, designed to reduce the federal deficit by promoting compliance with the tax laws. Congress had become concerned about the growing magnitude of tax evasion; Internal Revenue Service (IRS) studies indicated that unreported income had grown from an estimated range of $31.1 billion to $32.2 billion in 1973 to a range of $93.3 billion to $97 billion in 1981. Compliance Gap: Hearing before the Subcommittee on Oversight of the Internal Revenue Service of the Senate Committee on Finance, 97th Cong., 2d Sess., 126 (1982). Unregistered bonds apparently became a focus of attention because they left no paper trail and thus facilitated tax evasion. Then Assistant Secretary of the Treasury for Tax Policy John Chapoton testified before the House Ways and Means Committee that a registration requirement would help prevent tax evasion because bearer bonds often represent unreported and untaxed income that, without a system of recorded ownership, the IRS has difficulty reconstructing. Hearings on H. R. 6300 before the House Committee on Ways and Means, 97th Cong., 2d Sess., 35 (1982). He also expressed concern that bearer bonds were being used to avoid estate and gift taxes and as a medium of exchange in the illegal sector. Ibid. In reporting out the bill containing the provision that eventually became 310 of TEFRA, the Senate Finance Committee Report expressed the same concerns: "The committee believes that a fair and efficient system of information reporting and withholding cannot be achieved with respect to interest-bearing obligations as long as a significant volume of long-term bearer instruments is issued. A system of book-entry registration will preserve the liquidity of obligations while requiring the creation of ownership records that can produce useful information reports with respect to both the payment of interest and the sale of obligations prior to maturity through brokers. Furthermore, registration will reduce the ability of noncompliant taxpayers to conceal income and property from the reach of the income, estate, and gift taxes. Finally, the registration requirement may reduce the volume of readily negotiable substitutes for cash available to persons engaged in illegal activities." S. Rep. No. 97-494, Vol. 1, p. 242 (1982). Section 310 was designed to meet these concerns by providing powerful incentives to issue bonds in registered form. Because 310 aims to address the tax evasion concerns posed generally by unregistered bonds, it covers not only state bonds but also bonds issued by the United States and private corporations. Section 310(a) requires the United States to issue publicly offered bonds with a maturity of more than one year in registered form.3 With respect to similar bonds issued by private corporations, 310(b)(2)-(6) impose a series of tax penalties on nonregistration. Corporations declining to issue the covered bonds in registered form lose tax deductions and adjustments for interest paid on the bonds, 310(b)(2) and (3), and must pay a special excise tax on the bond principal, 310(b)(4). Holders of these unregistered corporate bonds generally cannot deduct capital losses or claim capital-gain treatment for any losses or gains sustained on the bonds. 310(b)(5) and (6). Section 310 (b)(1) completes this statutory scheme by denying the federal income tax exemption for interest earned on state bonds to owners of long-term publicly offered state bonds that are not issued in registered form.South Carolina invoked the original jurisdiction of this Court, contending that 310(b)(1) is constitutionally invalid under the Tenth Amendment and the doctrine of intergovernmental tax immunity. We granted South Carolina leave to file the instant complaint against the Secretary of the Treasury of the United States, South Carolina v. Regan, , and appointed as Special Master the Honorable Samuel J. Roberts, . The National Governors' Association (NGA) intervened.4 After conducting hearings and taking evidence, the Special Master concluded that 310(b)(1) was constitutional and recommended entering judgment for the defendant. South Carolina and the NGA filed exceptions to various factual findings of the Special Master and to the Master's legal conclusions concerning their constitutional challenges.IIWe address the claim that 310(b)(1) violates the Tenth Amendment first.5 South Carolina and the NGA contend, and the Master found, that 310 effectively requires States to issue bonds in registered form, noting that if States issued bonds in unregistered form, competition from other nonexempt bonds would force States to increase the interest paid on state bonds by 28-35%, and that even though almost all state bonds were issued in bearer form before 310 became effective, since then no State has issued a bearer bond. Report of Special Master 2, 23-24. South Carolina and the NGA thus argue that, for purposes of Tenth Amendment analysis, we must treat 310 as if it simply banned bearer bonds altogether without giving States the option to issue nonexempt bearer bonds. The Secretary does not dispute the finding that 310 effectively requires registration, see Brief for Defendant 19 (urging the Court to adopt all the Master's findings), preferring to argue that 310 survives Tenth Amendment scrutiny because a blanket prohibition by Congress on the issuance of bearer bonds can apply to States without violating the Tenth Amendment. For the purposes of Tenth Amendment analysis, then, we treat 310 as if it directly regulated States by prohibiting outright the issuance of bearer bonds.6 AThe Tenth Amendment limits on Congress' authority to regulate state activities are set out in Garcia v. San Antonio Metropolitan Transit Authority, . Garcia holds that the limits are structural, not substantive - i. e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity. Id., at 537-554. South Carolina contends that the political process failed here because Congress had no concrete evidence quantifying the tax evasion attributable to unregistered state bonds and relied instead on anecdotal evidence that taxpayers have concealed taxable income using bearer bonds. It also argues that Congress chose an ineffective remedy by requiring registration because most bond sales are handled by brokers who must file information reports regardless of the form of the bond and because beneficial ownership of registered bonds need not necessarily be recorded.Although Garcia left open the possibility that some extraordinary defects in the national political process might render congressional regulation of state activities invalid under the Tenth Amendment, the Court in Garcia had no occasion to identify or define the defects that might lead to such invalidation. See id., at 556. Nor do we attempt any definitive articulation here. It suffices to observe that South Carolina has not even alleged that it was deprived of any right to participate in the national political process or that it was singled out in a way that left it politically isolated and powerless. Cf. United States v. Carolene Products Co., , n. 4 (1938). Rather, South Carolina argues that the political process failed here because 310(b)(1) was "imposed by the vote of an uninformed Congress relying upon incomplete information." Brief for Plaintiff 101.7 But nothing in Garcia or the Tenth Amendment authorizes courts to second-guess the substantive basis for congressional legislation. Cf. Minnesota v. Clover Leaf Creamery Co., . Where, as here, the national political process did not operate in a defective manner, the Tenth Amendment is not implicated.BThe NGA argues that 310 is invalid because it commandeers the state legislative and administrative process by coercing States into enacting legislation authorizing bond registration and into administering the registration scheme. They cite FERC v. Mississippi, , which left open the possibility that the Tenth Amendment might set some limits on Congress' power to compel States to regulate on behalf of federal interests, id., at 761-764. The extent to which the Tenth Amendment claim left open in FERC survives Garcia or poses constitutional limitations independent of those discussed in Garcia is far from clear. We need not, however, address that issue because we find the claim discussed in FERC inapplicable to 310. The federal statute at issue in FERC required state utility commissions to do the following: (1) adjudicate and enforce federal standards, (2) either consider adopting certain federal standards or cease regulating public utilities, and (3) follow certain procedures. The Court in FERC first distinguished National League of Cities v. Usery, , noting that the statute in National League of Cities presented questions concerning "the extent to which state sovereignty shields the States from generally applicable federal regulations," whereas the statute in FERC "attempts to use state regulatory machinery to advance federal goals." FERC, 456 U.S., at 759. The Court in FERC then concluded that, whatever constitutional limitations might exist on the federal power to compel state regulatory activity, Congress had the power to require that state adjudicative bodies adjudicate federal issues and to require that States regulating in a pre-emptible field consider suggested federal standards and follow federally mandated procedures. Id., at 759-767.Because, by hypothesis, 310 effectively prohibits issuing unregistered bonds, it presents the very situation FERC distinguished from a commandeering of state regulatory machinery: the extent to which the Tenth Amendment "shields the States from generally applicable federal regulations." 456 U.S., at 759. Section 310 regulates state activities; it does not, as did the statute in FERC, seek to control or influence the manner in which States regulate private parties. The NGA nonetheless contends that 310 has commandeered the state legislative and administrative process because many state legislatures had to amend a substantial number of statutes in order to issue bonds in registered form and because state officials had to devote substantial effort to determine how best to implement a registered bond system. Such "commandeering" is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect. After Garcia, for example, several States and municipalities had to take administrative and legislative action to alter the employment practices or raise the funds necessary to comply with the wage and overtime provisions of the Federal Labor Standards Act.8 Indeed, even the pre-Garcia line of Tenth Amendment cases recognized that Congress could constitutionally impose federal requirements on States that States could meet only by amending their statutes. See EEOC v. Wyoming, , and n. 2 (1983) (Burger, C. J., dissenting) (citing state statutes from over half the States that did not comply with the federal statute upheld by the Court). Under the NGA's theory, moreover, any State could immunize its activities from federal regulation by simply codifying the manner in which it engages in those activities. In short, the NGA's theory of "commandeering" would not only render Garcia a nullity, but would also restrict congressional regulation of state activities even more tightly than it was restricted under the now overruled National League of Cities line of cases. We find the theory foreclosed by precedent, and uphold the constitutionality of 310 under the Tenth Amendment.IIISouth Carolina contends that even if a statute banning state bearer bonds entirely would be constitutional, 310 unconstitutionally violates the doctrine of intergovernmental tax immunity because it imposes a tax on the interest earned on a state bond. We agree with South Carolina that 310 is inconsistent with Pollock v. Farmers' Loan & Trust Co., , which held that any interest earned on a state bond was immune from federal taxation.The Secretary and the Master, however, suggest that we should uphold the constitutionality of 310 without explicitly overruling Pollock because 310 does not abolish the tax exemption for state bond interest entirely but rather taxes the interest on state bonds only if the bonds are not issued in the form Congress requires. In our view, however, this suggestion implicitly rests on a rather mischievous proposition of law. If, for example, Congress imposed a tax that applied exclusively to South Carolina and levied the tax directly on the South Carolina treasury, we would be obligated to adjudicate the constitutionality of that tax even if Congress allowed South Carolina to escape the tax by restructuring its state government in a way Congress found more to its liking. The United States cannot convert an unconstitutional tax into a constitutional one simply by making the tax conditional. Whether Congress could have imposed the condition by direct regulation is irrelevant; Congress cannot employ unconstitutional means to reach a constitutional end. Under Pollock, a tax on the interest income derived from any state bond was considered a direct tax on the State and thus unconstitutional. 157 U.S., at 585-586. If this constitutional rule still applies, Congress cannot threaten to tax the interest on state bonds that do not conform to congressional dictates. We thus decline to follow a suggestion that would force us to embrace implicitly a proposition of law far more controversial than the current validity of Pollock's ban on taxing state bond interest, and proceed to address whether Pollock should be explicitly overruled.9 Under the intergovernmental tax immunity jurisprudence prevailing at the time, Pollock did not represent a unique immunity limited to income derived from state bonds. Rather, Pollock merely represented one application of the more general rule that neither the Federal nor the State Governments could tax income an individual directly derived from any contract with another government.10 Not only was it unconstitutional for the Federal Government to tax a bondowner on the interest he or she received on any state bond, but it was also unconstitutional to tax a state employee on the income earned from his employment contract, Collector v. Day, 11 Wall. 113 (1871), to tax a lessee on income derived from lands leased from a State, Burnet v. Coronado Oil, , or to impose a sales tax on proceeds a vendor derived from selling a product to a state agency, Indian Motocycle Co. v. United States, . Income derived from the same kinds of contracts with the Federal Government were likewise immune from taxation by the States. See Weston v. City Council of Charleston, 2 Pet. 449 (1829) (federal bond interest immune from state taxation); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (federal employee immune from state tax on salary); Gillespie v. Oklahoma, (income derived from federal lease immune from state tax); Panhandle Oil Co. v. Mississippi ex rel. Knox, (vendor immune from sales tax on vendor's proceeds from sale to the United States). Cases concerning the tax immunity of income derived from state contracts freely cited principles established in federal tax immunity cases, and vice versa. See, e. g., Coronado Oil, supra, at 398; Indian Motocycle, supra, at 575-579; Pollock, supra, at 586. See generally Indian Motocycle, supra, at 575 (immunity of States from federal tax equal to immunity of Federal Government from state tax); Metcalf & Eddy v. Mitchell, ; Collector v. Day, supra, at 127.This general rule was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax "on" the government because it burdened the government's power to enter into the contract. The Court in Pollock borrowed its reasoning directly from the decision in Weston exempting federal bond interest from state taxation: "`The right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extent, however inconsiderable, it is a burthen on the operations of government... . The tax on government stock is thought by this court to be a tax on the contract, a tax on the [government's] power to borrow money ... and consequently to be repugnant to the Constitution.'" Pollock, supra, at 586, quoting Weston, supra, at 467, 468. Thus, although a tax was collected from an independent private party, the tax was considered to be "on" the government because the tax burden might be passed on to it through the contract. This reasoning was used to define the basic scope of both federal and state tax immunities with respect to all types of government contracts.11 See, e. g., Coronado Oil, supra, at 400-401 ("Here the lease ... was an instrumentality of the State ... . To tax the income of the lessee arising therefrom would amount to an imposition upon the lease itself"); Panhandle Oil, supra, at 222 ("It is immaterial that the seller and not the purchaser is required to report and make payment to the State. Sale and purchase constitute a transaction by which the tax is measured and on which the burden rests"); Gillespie, supra, at 505-506 ("`A tax upon the leases is a tax upon the power to make them ...'" (quoting Indian Territory Illuminating Oil Co. v. Oklahoma, )). The commonality of the rationale underlying all these immunities for government contracts was highlighted by Indian Motocycle, . In that case, the Court reviewed the then current status of intergovernmental tax immunity doctrine, observing that a tax on interest earned on a state or federal bond was unconstitutional because it would burden the exercise of the government's power to borrow money and that a tax on the salary of a State or Federal Government employee was unconstitutional because it would burden the government's power to obtain the employee's services. Id., at 576-578. It then concluded that under the same principle a sales tax imposed on a vendor for a sale to a state agency was unconstitutional because it would burden the sale transaction. Id., at 579.The rationale underlying Pollock and the general immunity for government contract income has been thoroughly repudiated by modern intergovernmental immunity case law. In Graves v. New York ex rel. O'Keefe, , the Court announced: "The theory ... that a tax on income is legally or economically a tax on its source, is no longer tenable." Id., at 480. The Court explained: "So much of the burden of a non-discriminatory general tax upon the incomes of employees of a government, state or national, as may be passed on economically to that government, through the effect of the tax on the price level of labor or materials, is but the normal incident of the organization within the same territory of two governments, each possessing the taxing power. The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes ... ." Id., at 487. See also James v. Dravo Contracting Co., (the fact that a tax on a Government contractor "may increase the cost to the Government ... would not invalidate the tax"); Helvering v. Gerhardt, . The thoroughness with which the Court abandoned the burden theory was demonstrated most emphatically when the Court upheld a state sales tax imposed on a Government contractor even though the financial burden of the tax was entirely passed on, through a cost-plus contract, to the Federal Government. Alabama v. King & Boozer, . The Court stated:"The Government, rightly we think, disclaims any contention that the Constitution, unaided by Congressional legislation, prohibits a tax exacted from the contractors merely because it is passed on economically, by the terms of the contract or otherwise, as part of the construction cost to the Government. So far as such a non-discriminatory state tax upon the contractor enters into the cost of the materials to the Government, that is but a normal incident of the organization within the same territory of two independent taxing sovereignties. The asserted right of the one to be free of taxation by the other does not spell immunity from paying the added costs, attributable to the taxation of those who furnish supplies to the Government and who have been granted no tax immunity. So far as a different view has prevailed, we think it no longer tenable." Id., at 8-9 (citations omitted). King & Boozer thus completely foreclosed any claim that the nondiscriminatory imposition of costs on private entities that pass them on to States or the Federal Government unconstitutionally burdens state or federal functions. Subsequent cases have consistently reaffirmed the principle that a non-discriminatory tax collected from private parties contracting with another government is constitutional even though part or all of the financial burden falls on the other government. See Washington v. United States, ; United States v. New Mexico, ; United States v. County of Fresno, , and n. 9 (1977); United States v. City of Detroit, .With the rationale for conferring a tax immunity on parties dealing with another government rejected, the government contract immunities recognized under prior doctrine were, one by one, eliminated. Overruling Burnet v. Coronado Oil, , and Gillespie v. Oklahoma, , the Court upheld the constitutionality of a federal tax on net income a corporation derived from a state lease in Helvering v. Mountain Producers Corp., . See also Oklahoma Tax Comm'n v. Texas Co., (upholding constitutionality of state tax on gross income derived from Indian lease). Later, the Court explicitly overruled Collector v. Day, 11 Wall. 113 (1871), and upheld the constitutionality of a nondiscriminatory state tax on the salary of a federal employee. Graves v. New York ex rel. O'Keefe, supra.12 And in the course of upholding a sales tax on a cost-plus Government contractor, the Court in King & Boozer overruled Panhandle Oil Co. v. Mississippi ex rel. Knox, . See also James, supra (upholding state tax on gross income independent contractor received from Federal Government). The only premodern tax immunity for parties to government contracts that has so far avoided being explicitly overruled is the immunity for recipients of governmental bond interest.13 That this Court has yet to overrule Pollock explicitly, however, is explained not by any distinction between the income derived from government bonds and the income derived from other government contracts, but by the historical fact that Congress has always exempted state bond interest from taxation by statute, beginning with the very first federal income tax statute. Act of Oct. 3, 1913, ch. 16, II(B), 38 Stat. 168.In sum, then, under current intergovernmental tax immunity doctrine the States can never tax the United States directly but can tax any private parties with whom it does business, even though the financial burden falls on the United States, as long as the tax does not discriminate against the United States or those with whom it deals. See Washington, supra, at 540; County of Fresno, supra, at 460-463; City of Detroit, supra, at 473; Oklahoma Tax Comm'n, supra, at 359-364. A tax is considered to be directly on the Federal Government only "when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities." New Mexico, supra, at 735. The rule with respect to state tax immunity is essentially the same, see, e. g., Graves, supra, at 485; Mountain Producers Corp., supra, at 386-387, except that at least some nondiscriminatory federal taxes can be collected directly from the States even though a parallel state tax could not be collected directly from the Federal Government.14 See generally n. 11, supra. We thus confirm that subsequent case law has overruled the holding in Pollock that state bond interest is immune from a nondiscriminatory federal tax. We see no constitutional reason for treating persons who receive interest on government bonds differently than persons who receive income from other types of contracts with the government, and no tenable rationale for distinguishing the costs imposed on States by a tax on state bond interest from the costs imposed by a tax on the income from any other state contract. We stated in Graves that "as applied to the taxation of salaries of the employees of one government, the purpose of the immunity was not to confer benefits on the employees by relieving them from contributing their share of the financial support of the other government, whose benefits they enjoy, or to give an advantage to a government by enabling it to engage employees at salaries lower than those paid for like services by other employers, public or private ... ." 306 U.S., at 483. Likewise, the owners of state bonds have no constitutional entitlement not to pay taxes on income they earn from state bonds, and States have no constitutional entitlement to issue bonds paying lower interest rates than other issuers.15 Indeed, this Court has in effect acknowledged that a holder of a Government bond could constitutionally be taxed on bond interest in Memphis Bank & Trust Co. v. Garner, , which involved a state tax on federal bond interest. Although that case involved an interpretation of 31 U.S.C. 742, we premised our statutory interpretation on the observation that "[o]ur decisions have treated 742 as principally a restatement of the constitutional rule." 459 U.S., at 397. We then stated: "Where, as here, the economic but not the legal incidence of the tax falls upon the Federal Government, such a tax generally does not violate the constitutional immunity if it does not discriminate against holders of federal property or those with whom the Federal Government deals." Ibid. (emphasis added).TEFRA 310 thus clearly imposes no direct tax on the States. The tax is imposed on and collected from bondholders, not States, and any increased administrative costs incurred by States in implementing the registration system are not "taxes" within the meaning of the tax immunity doctrine. See generally United States v. Mississippi Tax Comm'n, (describing tax as an enforced contribution to provide for the support of government). Nor does 310 discriminate against States. The provisions of 310 seek to assure that all publicly offered long-term bonds are issued in registered form, whether issued by state or local governments, the Federal Government, or private corporations. See supra, at 510. Accordingly, the Federal Government has directly imposed the same registration requirement on itself that it has effectively imposed on States. The incentives States have to switch to registered bonds are necessarily different than those of corporate bond issuers because only state bonds enjoy any exemption from the federal tax on bond interest, but the sanctions for issuing unregistered corporate bonds are comparably severe. See ibid. Removing the tax exemption for interest earned on state bonds would not, moreover, create a discrimination between state and corporate bonds since corporate bond interest is already subject to federal tax.IVBecause the federal imposition of a bond registration requirement on States does not violate the Tenth Amendment and because a nondiscriminatory federal tax on the interest earned on state bonds does not violate the intergovernmental tax immunity doctrine, we uphold the constitutionality of 310(b)(1),16 overrule the exceptions to the Special Master's Report, and approve his recommendation to enter judgment for the defendant. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. |
11 | The Internal Revenue Code of 1939 permitted taxpayers to deduct as a depletion allowance a percentage of "gross income from mining" and defined "mining" as including the "ordinary treatment processes normally applied by mine owners ... to obtain the commercially marketable mineral product or products." Respondent mines fire clay and shale for which there is a market but which it utilizes to manufacture sewer pipe and other vitrified articles. It claims that it could not profitably market its raw fire clay and shale without processing them into finished products. Held: Respondent's depletion allowance must be based, not upon the value of the sewer pipe and other vitrified products which it manufactures, but upon the value of its raw fire clay and shale after application of ordinary treatment processes normally applied in the recovery of those materials by miners not engaged in the manufacture of finished products. Pp. 77-90. (a) Congress intended to grant miners a depletion allowance based on the constructive income from the raw mineral product, if marketable in that form, and not on the value of finished articles. Pp. 81-86. (b) A depletion allowance is an allowance for the exhaustion of capital assets - not a subsidy to manufacturers or to high-cost mine operators. P. 86. (c) That respondent is both a miner and a manufacturer does not entitle it to treatment different from that accorded miners of the same raw materials who are not manufacturers. Pp. 86-88. (d) That respondent's underground method of mining prevents it from selling its raw fire clay and shale does not entitle it to treatment different from that accorded to the other miners of the same raw materials. Pp. 88-89. 268 F.2d 334, reversed. Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Rankin, Acting Assistant Attorney General Heffron, Melva M. Graney and James P. Turner.Erwin N. Griswold argued the cause for respondent. With him on the brief was Howard P. Travis.Robert E. Lee Hall and Richard L. Hirshberg filed a brief for the National Coal Association, as amicus curiae.MR. JUSTICE CLARK delivered the opinion of the Court.This income tax refund suit involves the statutory percentage depletion allowance to which respondent, an integrated miner-manufacturer of burnt clay products from fire clay and shale, is entitled under the Internal Revenue Code of 1939.1 The percentage granted by the statute is on respondent's "gross income from mining." It defines "mining" to include the "ordinary treatment processes normally applied by mine owners ... to obtain the commercially marketable mineral product or products." Respondent claimed that its first "commercially marketable mineral product" is sewer pipe and other vitrified articles. Alternatively, it contended that depletion should be based on the price of 80 tons of ground fire clay and shale actually sold during the tax year in question. The District Court agreed with respondent's first claim. The Court of Appeals affirmed, holding that respondent could not profitably sell its raw fire clay and shale without processing it into finished products, and that its statutory percentage depletion was therefore properly based on its gross sales of the latter. 268 F.2d 334. The Government contends that the product from which "gross income from mining" is computed is an industry-wide test and cannot be reduced to a particular operation that a taxpayer might find profitable. The Government further argues that, while the statute permits ordinary treatment processes normally applied by miners to the raw product of their mines to produce a commercially marketable mineral product, it does not embrace the fabrication of the mineral product into finished articles. In view of the importance of the question to taxpayers as well as to the Government, we granted certiorari. . We disagree with respondent's contention that the issue is not presented by this record, and we therefore reach the merits. We have concluded that, under the mandate of the statute, respondent's "gross income from mining" under the findings here is the value of its raw fire clay and shale, after the application of the ordinary treatment processes normally applied by nonintegrated miners engaged in the recovery of those minerals.2 I.During the tax year ending November 30, 1951, the respondent owned and operated an underground mine from which it produced fire clay and shale in proportions of 60% fire clay and 40% shale. It transported the raw mineral product by truck to its plant at Cannelton, Indiana, about one and one-half miles distant. There it processed and fabricated the fire clay and shale into vitrified sewer pipe, flue lining and related products. In this process, the clay and shale is first ground into a pulverized form about as fine as talcum powder. The powder is then mixed with water in a pug mill and becomes a plastic mass, which is formed by machines into the shape of the finished ware desired. The ware is then placed in dryers where heat of less than 212ø is applied to remove all of the water. This process takes from 12 hours to 3 weeks, depending on the size of the ware. Thereafter the ware is vitrified in kilns at 2,200ø Fahrenheit, requiring from 60 to 210 hours. It is then cooled, graded and either shipped or stored.Not all clays and shales are suitable for respondent's operations. They must have plasticity, special drying qualities and be able to withstand high temperatures. Respondent's clay, known as Cannelton clay, is the deepest clay mined in Indiana and, respondent says, yields the best sewer pipe. Its cost of removing and delivering the same to its plant was $2.418 per ton in 1951. Respondent used some 38,473 tons of clay and shale in its operations that year and sold approximately 80 tons of ground fire clay and shale in bags at a price of $22.88 per ton. Net sales of its finished wares amounted to approximately one and a half million dollars.In connection with its tax assessment for the year in question, respondent filed a document in which it stated that "we used as a basis for calculating the gross income from our mining operations of shale and fire clay the point in our manufacturing operations at which we first arrive with a commercially marketable product, which is ground fire clay. This product arrives after the raw mineral is crushed and granulated to such extent that by the addition of water it can be made into a mortar for use in laying or setting fire or refractory brick. This ground fire clay has a definite market and an ascertainable market value at any particular time and is the same product from which our end product, sewer tile, is made simply by the addition of water and the necessary baking process." In this return it based the value of the ground fire clay at $22.81 per ton, the price for which it sold some 80 tons of that material in bags during 1951. At this figure the depletion allowance would have been slightly above $2 per ton. Thereafter respondent claimed error and asserted that its mineral product, rather than being commercially marketable when it reached the stage of ground fire clay, only became commercially marketable when it became a finished product, e. g., sewer pipe. On this basis, the depletion allowance on petitioner's gross income would be approximately $4 per ton, since the mineral would have a value of about $40 per ton. On the other hand, if the mineral it used in 1951 was valued at $1.60 to $1.90 per ton, the going price elsewhere in Indiana, the depletion allowance would be approximately 20 per ton.The record shows and the District Court found that in 1951 there were substantial sales of raw fire clay and shale in Indiana, mostly in the vicinity of Brazil, about 140 miles from Cannelton. The average price there was $1.60 to $1.90 per ton for fire clay and $1 per ton for shale. Transportation costs from Brazil to Cannelton ran from $4.58 to $5.50 per ton. In Kentucky, across the river from respondent's plant, it appears that fire clay and shale of the same grade were mined and sold3 before, during and subsequent to 1951. In fact, since 1957 respondent has secured all of its mineral requirements from this source on a lease basis under which the lessor mines and delivers the raw material to its plant. The exact cost is not shown, but the haul in 1957 from pit to plant, including the ferry crossing, was some seven miles.II.We have carefully studied the legislative history of the depletion allowance, including the voluminous materials furnished by the parties, not only in their briefs but in the exhaustive appendices and the record.4 We shall not burden this opinion with its repetition.In summary, mineral depletion for tax purposes is an allowance from income for the exhaustion of capital assets. Anderson v. Helvering, . In addition, it is based on the belief that its allowance encourages extensive exploration and increasing discoveries of additional minerals to the benefit of the economy and strength of the Nation. We are not concerned with the validity of this theory or with the statutory policy. Our sole function is application of the congressional mandate. A study of the materials indicates that percentage depletion first came into the tax structure in 1926, when the Congress granted it to oil and gas producers. The percentage allowed was based on "gross income from the property," which was described as "the gross receipts from the sale of oil and gas as it is delivered from the property." Preliminary Report, Joint Committee on Internal Revenue Taxation, Vol. I, Part 2 (1927). The report continued that, as to the integrated operator, "the gross income from the property must be computed from the production and posted price of oil, as the gross receipts from a refined and transported product can not be used in determining the income as relating to an individual tract or lease." The Treasury Regulations confirmed this understanding. Treas. Reg. 74 (1929 ed.), Arts. 221 (i), 241.Thereafter, in 1932, percentage depletion was extended to metal mines, coal, and sulphur. The mining engineer of the Joint Committee, Alex. R. Shepherd, urged in a report to the Congress5 that depletion for metal mines be computed, as in the oil and gas industry, on a percentage-of-income basis, and the Revenue Act of 1932 was so drawn. The Shepherd Report pointed out that the percentage basis for oil and gas depletion had been in force for over a year and had "functioned satisfactorily both from economical and administrative viewpoints and without loss of revenue." It added that "careful study of this method as applied to metal mines indicates that the same results will be attained in practice as in the case of oil and gas," but that, because of varied practices in the mining industry, it would be necessary to determine "the point in accounting at which" gross income from the property mined could be calculated. It recommended that "it is logical to peg `gross income from the property' f. o. b. cars at mine," i. e., net smelter returns, recognizing that processing beyond this point should not be included in calculating "gross income from the property." While as to certain metals, viz., gold, silver, or copper, the report suggested that gross income should be based on receipts from "the sale of the crude, partially beneficiated or refined" product, this was but to make provision for the specific operations of miners in those metals. In this regard the report also proposed that the depletion base "in the case of all other metals, coal and oil and gas, [should be] the competitive market receipts, or its equivalent, received from the sale of the crude products, or concentrates on an f. o. b. mine, mill, or well basis."The Congress in fashioning the 1932 Act took into account these recommendations. It incorporated a provision in the Act allowing percentage depletion for coal and metal mines and sulphur, based on the "gross income from the property." 114 (b) (4), Revenue Act of 1932, 47 Stat. 169. On the following February 10, 1933, the Treasury issued its Regulations 77, which defined "gross income from the property" as "the amount for which the taxpayer sells (a) the crude mineral product of the property or (b) the product derived therefrom, not to exceed in the case of (a) the representative market or field price ... or in the case of (b) the representative market or field price ... of a product of the kind and grade from which the product sold was derived, before the application of any processes ... with the exception of those listed ... ." Treas. Reg. 77, Art. 221 (g). These exceptions listed processes normally in use in the mining industry for preparing the mineral as a marketable shipping product. The regulation was of unquestioned validity and, in 1943, at the instance of the industry, the Congress substantially embodied it into the statute itself, 58 Stat. 21, 44, including the basic definition of the term "gross income from the property."6 Since that time the section on percentage depletion - 114 (b) (4) (B) of the 1939 Code - has remained basically the same.7 Additional minerals have been added from time to time - shale and fire clay in 1951 - until practically all minerals are included.As now enacted, the section provides that "mining" includes "not merely the extraction of the ores or minerals from the ground but also the ordinary treatment processes normally applied by mine owners or operators in order to obtain the commercially marketable mineral product or products," plus transportation from the place of extraction to the "plants or mills in which the ordinary treatment processes are applied thereto," not exceeding 50 miles.8 It then defines "ordinary treatment processes" by setting out specifically in four categories those covering some 17 named minerals. Fire clay and shale are not within these specific enumerations. The Government, however, contends that they should come within clause (iii) of the section, which provides that, "in the case of iron ore, bauxite, ball and sagger clay, rock asphalt, and minerals which are customarily sold in the form of a crude mineral product - sorting, concentrating, and sintering to bring to shipping grade and form, and loading for shipment ..." are included in "ordinary treatment processes." (Italics added.) Clause (iv) lists specific metals such as lead, zinc, copper, etc., "and ores which are not customarily sold in the form of crude mineral product," and specifically excludes from the permissible processes certain ones used in connection with these metals. To recapitulate, the section contains four categories of "ordinary treatment processes": the first enumerating those permissible as to the mining of coal; the second, as to sulphur; the third, as to minerals customarily sold in the form of the crude mineral product; and the fourth, as to those ores not customarily so sold. We note that the Congress even states the steps in each permissible process, and in addition specifically declares some processes not to be "ordinary treatment" ones, viz., "electrolytic deposition, roasting, thermal or electric smelting, or refining." Furthermore, none of the permissible processes destroy the physical or chemical identity of the minerals or permit them to be transformed into new products.From this legislative history, we conclude that Congress intended to grant miners a depletion allowance based on the constructive income from the raw mineral product, if marketable in that form, and not on the value of the finished articles.III.The findings are that three-fifths of the fire clay produced in Indiana in 1951 was sold in its raw state. This indicates a substantial market for the raw mineral. In addition, large sales of raw fire clay and shale were made across the river in Kentucky. This indicates that fire clay and shale were "commercially marketable" in their raw state unless that phrase also implies marketability at a profit. We believe it does not. Proof of these sales is significant not because it reveals an ability to sell profitably - which the respondent could not do - but because the substantial tonnage being sold in a raw state provides conclusive proof that, when extracted from the mine, the fire clay and shale are in such a state that they are ready for industrial use or consumption - in short, they have passed the "mining" state on which the depletion principle operates. It would be strange, indeed, to ascribe to the Congress an intent to permit each miner to adopt processes peculiar to his individual operation. Depletion, as we have said, is an allowance for the exhaustion of capital assets. It is not a subsidy to manufacturers or the high-cost mine operator. The value of respondent's vitrified clay products, obtained by expensive manufacturing processes, bears little relation to the value of its minerals. The question in depletion is what allowance is necessary to permit tax-free recovery of the capital value of the minerals.Respondent insists that its miner-manufacturer status makes some difference. We think not. It is true that the integrated miners in Indiana outnumbered the nonintegrated ones. But in each of the three basic percentage depletion Acts the Congress indicated that integrated operators should not receive preferred treatment. Furthermore, in Regulations 77, discussed above, the Treasury specifically provided that depletion was allowable only on the crude mineral product. And, as we have said, this regulation was substantially enacted into the 1943 Act. We need not tarry to deal with any differences which are said to have existed in administrative interpretation, for here we have authoritative congressional action itself. Ever since the first percentage depletion statute, the cut-off point where "gross income from mining" stopped has been the same, i. e., where the ordinary miner shipped the product of his mine. Respondent's formula would not only give it a preference over the ordinary nonintegrated miner, but also would grant it a decided competitive advantage over its nonintegrated manufacturer competitor. Congress never intended that depletion create such a discriminatory situation. As we see it, the miner-manufacturer is but selling to himself the crude mineral that he mines, insofar as the depletion allowance is concerned.IV.We now reach what "ordinary treatment processes" are available to respondent under the statute. As the principal industry witness put it at hearings before the Congress: "Obviously it was not the intent of Congress that those processes which would take your products and make them into different products having very different uses should be considered, as the basis of depletion."9 But respondent says that the processes it uses are the ordinary ones applied in the industry. As to the miner-manufacturer, that is true. But they are not the "ordinary" normal ones applied by the nonintegrated miner. It was he whom the Congress made the object of the allowance. The fabrication processes used by respondent in manufacturing sewer pipe would not be employed by the run-of-the-mill miner - only an integrated miner-manufacturer would have occasion to use them.Respondent further contends, however, that it must utilize these processes in order to obtain a "commercially marketable mineral product or products." It points out that its underground method of mining prevents it from selling its raw fire clay and shale. This position leads to the conclusion that respondent's mineral product has no value to it in the ground. If this be true, then there could be no depletion. One cannot deplete nothing. On the other hand, respondent alleges that its minerals yield "the best sewer pipe which is made in Indiana." If this be true, then respondent's problem is one purely of cost of recovery, an item which, as we have said, has nothing to do with value in the depletion formulae. Depletion, as we read the legislative history, was designed not to recompense for costs of recovery but for exhaustion of mineral assets alone. If it were extended as respondent asks, the miner-manufacturer would enjoy, in addition to a depletion allowance on his minerals, a similar allowance on his manufacturing costs, including depreciation on his manufacturing plant, machinery and facilities. Nor do we read the use by the Congress of the plural word "products" in the "commercially marketable" phrase as indicating that normal processing techniques might include the fabrication of different products from the same mineral. We believe that the Congress was only recognizing that in mining operations often more than one mineral product was recovered in its raw state. In view of the finding that substantial quantities - in fact, the majority - of the tonnage production of fire clay and shale were sold in their raw state, we believe that respondent's mining activity during the year in question would come under clause (iii) of the section here involved. That clause includes "minerals which are customarily sold in the form of a crude mineral product." We believe that the Congress intended integrated mining-manufacturing operations to be treated as if the operator were selling the mineral mined to himself for fabrication. It would, of course, be permissible for such an operator to calculate his "gross income from mining" at the point where "ordinary" miners - not integrated - disposed of their product. All processes used by the nonintegrated miner before shipping the raw fire clay and shale would under such a formula be available to the integrated miner-manufacturer to the same extent but no more.Nor do we believe that the District Court and Court of Appeals cases involving percentage depletion and cited by respondent are apposite here.10 We do not, however, indicate any approval of their holdings. It is sufficient to say that on their facts they are all distinguishable. In view of these considerations, neither of respondent's alternate claims for depletion allowance is appropriate. The judgment of the Court of Appeals is therefore reversed, and the cause remanded for further proceedings in conformity with this opinion. It is so ordered. |
8 | Although 28 U.S.C. 46 (c) provides that a retired circuit judge may sit on an in bane court rehearing a case in which he participated at the original hearing, only regular active service circuit judges are vested with authority to vote whether to rehear a case in bane.PER CURIAM.Appeals from the judgments of the trial courts in two cases were heard and determined by two separate three-judge divisions of the Court of Appeals for the Fourth Circuit. Sitting by designation as members of each of the divisions were senior judges of the Fourth Circuit.1 Following decisions by both divisions, the unsuccessful parties petitioned for rehearings in banc pursuant to 28 U.S.C. 46 (c):2 "Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service. A circuit judge of the circuit who has retired from regular active service shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat in the court or division at the original hearing thereof." (Emphasis added.) It had been the practice of the Fourth Circuit to count the votes of their senior judges who were members of the original hearing division when the court acted on the question whether to order a rehearing in banc. In those cases, however, the votes of the senior judges were not crucial. Certificate 3. Here, their votes are crucial. In Moody, while a "majority of the circuit judges of the circuit who are in regular active service" did not vote for a rehearing in banc, the two senior judges who sat on the division by designation did so vote; their votes, if counted, would make a majority for rehearing. In Williams, while a majority of Circuit Judges in regular active service did vote for a rehearing in banc, the senior judge who sat on the original division by designation voted against rehearing; with his vote counted the rehearing would fail by an equal division of those voting.Accordingly, all Circuit Judges of the Fourth Circuit in regular active service and both senior judges of the Circuit have, pursuant to 28 U.S.C. 1254 (3), certified to us the question whether a senior judge of the circuit who was a member of the original division hearing a case may vote to determine whether the case should be reheard in banc. Because of the importance of the question to the administration of judicial business in the circuits, as well as to the parties in the two cases pending in the Fourth Circuit, we granted leave to and invited those parties to file briefs in response to the question certified. Upon consideration of the question and the briefs filed by the litigants on both sides of both pending cases, we conclude that the answer should be in the negative; senior circuit judges who are members of the originally assigned division hearing a case are not authorized by Congress to participate in the determination whether to rehear that case in banc.The power of courts of appeals to hear or rehear cases in banc was first determined in Textile Mills Corp. v. Commissioner, . In 1948, Congress provided legislative ratification of Textile Mills by enacting 46 (c) of the Judicial Code, which then provided that hearings or rehearings before courts of appeals in banc were to be:"ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit." 28 U.S.C. 46 (c) (1952 ed.). (Emphasis added.) In the Western Pacific Railroad Case, , the Court had occasion to construe the 1948 statute, and determined that it was a grant of power to the courts of appeals to order hearings or rehearings in banc, not the creation of a right in litigants to compel such hearings or rehearings or even to compel the court to vote on the question of hearing or rehearing. The Court also addressed itself to the procedure governing the exercise of this power, holding that each court of appeals was "left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing."3 Id., at 250. This discretion has been subsequently confirmed. Shenker v. Baltimore & Ohio R. Co., ; United States v. American-Foreign S. S. Corp., .In one of these latter cases, American-Foreign, a question arose under the language of the 1948 statute whether, if rehearing in banc was voted, senior judges were eligible to participate in the decision of that case on the merits. The Court held that senior judges were not eligible to sit. Congress in 1963 then enacted the present version of 46 (c), which provides that a senior judge who sat on the original division hearing a case is "competent to sit as a judge of the court in banc" in the merits rehearing of the case. (Emphasis added.) But the language of the statute concerning how the court orders a rehearing in banc was not changed, except to reinforce the limitation on the grant of power by adding "regular" before "active service," sharpening the definition of which judges may participate in ordering a hearing or rehearing in banc.The language of the present statute thus confines the power to order a rehearing in banc to those circuit judges who are in "regular active service." Although, as the Court has held, those judges are largely free to devise whatever procedures they choose to initiate the process of decision to order such a rehearing, and to decide who may participate in those preliminary procedures, see n. 3, supra, neither the Court nor Congress has suggested that any other than a regular active service judge is eligible to participate in the making of the decision whether to hear or rehear a case in banc. Obviously such a decision can be reached only by voting. As revealed by the decisional and statutory evolution of the institution of the in banc court, the eligibility of senior judges for participation therein has been the exception, not the rule. We are not at liberty to engraft upon the statute a meaning inconsistent with its historical limitations.Indeed, the very purpose of the in banc court supports our conclusion that senior judges have not been authorized by implication to participate in ordering a hearing or rehearing in banc. As the Federal Rule indicates, supra, n. 2, the in banc court is normally reserved for questions of exceptional importance, or to secure or maintain uniformity of decision within the circuit. In the wise use of this exceptional power to "`determine the major doctrinal trends of the future'" for a particular circuit, American-Foreign, 363 U.S., at 690, Congress appears to have contemplated the need for an intimate and current working knowledge of, among other things, the decisions of the circuit, its pending cases, and the magnitude and nature of its future workload. Senior judges provide a judicial resource of extraordinary value by their willingness to undertake important assignments "without economic incentive of any kind." Id., at 688 n. 4. Consistent therewith, Congress has provided that when a senior judge has participated in the original division hearing, such senior judge may later sit on an in banc court rehearing that case; this was the purpose of the 1963 amendment to the Judicial Code. But voting on the merits of an in banc case is quite different from voting whether to rehear a case in banc, which is essentially a policy decision of judicial administration. Congress vested this latter authority and responsibility exclusively in "circuit judges of the circuit who are in regular active service," 28 U.S.C. 46 (c); because of their different nature, we cannot assume the grant of authority to do one includes authority to do the other.The question certified to us is therefore answered in the negative.4 MR. JUSTICE POWELL took no part in the consideration or decision of this case. |
1 | Appellants brought this suit seeking, inter alia, to enjoin as violative of the Fourteenth Amendment enforcement of a Michigan statute under which appellee school board and other county school boards are chosen not by the electors of the county, but by delegates from the local boards from candidates nominated by school electors. A three-judge district court, rejecting appellants' contention that the system paralleled the county-unit system invalidated in Gray v. Sanders, , dismissed the complaint. Held: 1. A three-judge court was properly convened since the challenged statute has general and statewide application. Moody v. Flowers, ante, p. 97, distinguished. P. 107. 2. There is no constitutional reason why nonlegislative state or local officials may not be chosen otherwise than by elections. The functions of appellee school board are essentially administrative and the elective-appointive system used to select its members is well within the State's latitude in the selection of such officials. Pp. 107-111. 254 F. Supp. 17, affirmed.Wendell A. Miles argued the cause for appellants. With him on the brief was Roger D. Anderson.Paul O. Strawhecker argued the cause for appellees and filed a brief for Kentwood Public Schools. With him on the brief for the Board of Education of the County of Kent was George R. Cook. On the brief for appellee the Attorney General of Michigan, were Robert A. Derengoski, Solicitor General, and Eugene Krasicky, Assistant Attorney General.Francis X. Beytagh, Jr., argued the cause pro hac vice for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall, Assistant Attorney General Doar and Bruce J. Terris.Briefs of amici curiae were filed by Louis J. Lefkowitz, Attorney General, pro se, and Daniel M. Cohen, Robert W. Imrie and George D. Zuckerman, Assistant Attorneys General, for the Attorney General of the State of New York, and by Morris H. Schneider and Seymour S. Ross for the County of Nassau.MR. JUSTICE DOUGLAS delivered the opinion of the Court.Appellants, qualified and registered electors of Kent County, Michigan, brought this suit in the Federal District Court to enjoin the Board of Education of Kent County from detaching certain schools from the city of Grand Rapids and attaching them to Kent County, to declare the county board to be unconstitutionally constituted, and to enjoin further elections until the electoral system is redesigned. Attack is also made on the adequacy of the statutory standards governing decisions of the county board in light of the requirements of due process. We need not bother with the intricate problems of state law involved in the dispute. For the federal posture of the case is a very limited one. The people of Michigan (qualified school electors) elect the local school boards.1 No constitutional question is presented as respects those elections. The alleged constitutional questions arise when it comes to the county school board. It is chosen, not by the electors of the county, but by delegates from the local boards. Each board sends a delegate to a biennial meeting and those delegates elect a county board of five members, who need not be members of the local boards,2 from candidates nominated by school electors. It is argued that this system of choosing county board members parallels the county-unit system which we invalidated under the Equal Protection Clause of the Fourteenth Amendment in Gray v. Sanders, , and violates the principle of "one man, one vote" which we held in that case and in Reynolds v. Sims, , was constitutionally required in state elections. A vast array of facts is assembled showing alleged inequities in a system which gives one vote to every local school board (irrespective of population, wealth, etc.) in the selection of the county board. A three-judge court was convened, and it held by a divided vote that the method of constitution of the county board did not violate the Fourteenth Amendment. 254 F. Supp. 17. We noted probable jurisdiction, .We conclude that a three-judge court was properly convened, for unlike the situation in Moody v. Flowers, ante, p. 97, this is a case where the state statute that is challenged3 applies generally to all Michigan county school boards of the type described.We start with what we said in Reynolds v. Sims, supra, at 575: "Political subdivisions of States counties, cities, or whatever never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, , these governmental units are `created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them.' and the `number, nature and duration of the powers conferred upon [them] ... and the territory over which they shall be exercised rests in the absolute discretion of the State.'" We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman (Gray v. Sanders, supra; Wesberry v. Sanders, ) or for state officers4 (Gray v. Sanders, supra) or for state legislators. Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, ; Davis v. Mann, ; Roman v. Sincock, ; Lucas v. Colorado Gen. Assembly, ; Marshall v. Hare, .They were all cases where elections had been provided and cast no light on when a State must provide for the election of local officials.A State cannot of course manipulate its political subdivisions so as to defeat a federally protected right, as for example, by realigning political subdivisions so as to deny a person his vote because of race.5 Gomillion v. Lightfoot, . Yet as stated in Anderson v. Dunn, 6 Wheat. 204, 226:"The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment." If we assume arguendo that where a State provides for an election of a local official or agency, the requirements of Gray v. Sanders and Reynolds v. Sims must be met, we are still short of an answer to the present problem and that is whether Michigan may allow its county school boards to be appointed.When we stated "... the state legislatures have constitutional authority to experiment with new techniques" (Day-Brite Lighting, Inc. v. Missouri, ), we were talking about the Due Process Clause of the Fourteenth Amendment, as was Mr. Justice Holmes, dissenting in Lochner v. New York, , when he said "... a constitution is not intended to embody ... the organic relation of the citizen to the State ... ." But as we indicated in Gomillion v. Lightfoot, supra, it is precisely that same approach that we have taken when it comes to municipal and county arrangements within the framework of a State. Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast lee-way in the management of its internal affairs.The Michigan system for selecting members of the county school board is basically appointive rather than elective.6 We need not decide at the present time whether a State may constitute a local legislative body through the appointive rather than the elective process. We reserve that question for other cases such as Board of Supervisors v. Bianchi, ante, p. 97, which we have disposed of on jurisdictional grounds. We do not have that question here, as the County Board of Education performs essentially administrative functions;7 and while they are important, they are not legislative in the classical sense.Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects non-legislative officers, a State can appoint local officials or elect them or combine the elective and appointive systems as was done here. If we assume arguendo that where a State provides for an election of a local official or agency whether administrative, legislative, or judicial the requirements of Gray v. Sanders and Reynolds v. Sims must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of "one man, one vote" has no relevancy. Affirmed.MR. JUSTICE HARLAN and MR. JUSTICE STEWART concur in the result. |
1 | Respondent, a resident of Washington, was stationed in California under military orders. He bought an automobile while temporarily assigned in Alabama, where he registered it and obtained Alabama license plates. California, on his return, insisted he could not use the Alabama plates in that State but that he had to register the car in California and obtain California plates. When he sought to do so he was advised that he had to pay a registration fee and a 2% "license fee" under the state revenue and tax code. He refused to pay the latter fee. Respondent was thereafter convicted for violating a California misdemeanor provision by driving a vehicle on California highways without registering it and paying "appropriate fees." The California Supreme Court reversed the District Court of Appeal's affirmance of the conviction, on the ground that California had improperly conditioned registration of respondent's car on payment of a fee from which he was exempt under 514 of the Soldiers' and Sailors' Civil Relief Act of 1940. Section 514 (2) (b) of the Act provides for exemption in the case of motor vehicles, provided that the fee "required by" the home State has been paid. The court reasoned that in respondent's case no such payment to the home State was necessary since the duty to register is imposed only as to cars driven on the home State's highways and he had not driven in the home State that year; that the terms of the proviso were satisfied; and that, since no payment was required, respondent was not subject to the California tax. Held: 1. The condition in 514 (2) (b) for the exemption applicable to nonresident servicemen that they must have paid the licenses, fees, or excises "required by" the State of residence or domicile means that they must have paid such licenses, fees, or excises "of" that State. It was not Congress' intention to permit servicemen in respondent's position completely to avoid registration and licensing requirements, which are within the State's police power to impose. Servicemen may be required to register their cars and obtain license plates in host States if they do not do so in their home States, and may be required to pay all taxes essential thereto. Pp. 391-392. 2. Congress did not intend to include in 514 (2) (b) taxes imposed only to defray the costs of highway maintenance. Since California authorities had determined that California's 2% "license fee" serves primarily a revenue purpose and is not essential to assure registration of motor vehicles, it does not constitute a "license, fee, or excise" within the meaning of 514 (2) (b) and nonresident servicemen are therefore exempt from its imposition regardless of whether they are required to register and license their motor vehicles in California because of a failure to do so in their home States. Pp. 392-396. 3. As the California Supreme Court held, the invalidity as to the respondent of the 2% "license fee" constituted a valid defense to the misdemeanor violation for which he was convicted. P. 396. 61 Cal. 2d 833, 395 P.2d 593, affirmed.Doris H. Maier, Assistant Attorney General of California, argued the cause for petitioner. With her on the briefs were Thomas C. Lynch, Attorney General, and Edsel W. Haws, Deputy Attorney General.Thomas Keister Greer argued the cause for respondent. With him on the brief was C. Ray Robinson.Acting Solicitor General Spritzer, Acting Assistant Attorney General Jones and I. Henry Kutz filed a memorandum for the United States, as amicus curiae, urging reversal.MR. JUSTICE BRENNAN delivered the opinion of the Court.Section 514 of the Soldiers' and Sailors' Civil Relief Act of 1940, 56 Stat. 777, as amended, provides a nonresident serviceman present in a State in compliance with military orders with a broad immunity from that State's personal property and income taxation. Section 514 (2) (b) of the Act further provides that"the term `taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: Provided, That the license, fee, or excise required by the State ... of which the person is a resident or in which he is domiciled has been paid."1 The respondent here, Captain Lyman E. Buzard, was a resident and domiciliary of the State of Washington stationed at Castle Air Force Base in California. He had purchased an Oldsmobile while on temporary duty in Alabama, and had obtained Alabama license plates for it by registering it there. On his return, California refused to allow him to drive the car on California highways with the Alabama plates, and, since he had not registered or obtained license tags in his home State, demanded that he register and obtain license plates in California. When he sought to do so, it was insisted that he pay both the registration fee of $8 imposed by California's Vehicle Code2 and the considerably larger "license fee" imposed by its Revenue and Taxation code.3 The license fee is calculated at "two (2) percent of the market value of the vehicle," 10752, and is "imposed ... in lieu of all taxes according to value levied for State or local purposes on vehicles ... subject to registration under the Vehicle Code ... ." 10758. Captain Buzard refused to pay the 2% fee,4 and was prosecuted and convicted for violating Vehicle Code 4000, which provides that "[N]o person shall drive ... any motor vehicle ... upon a highway unless it is registered and the appropriate fees have been paid under this code." The conviction, affirmed by the District Court of Appeal, 38 Cal. Rptr. 63, was reversed by the Supreme Court of California, 61 Cal. 2d 833, 395 P.2d 593. We granted certiorari, , to consider whether 514 barred California from exacting the 2% tax as a condition of registering and licensing Captain Buzard's car. We conclude that it did, and affirm.The California Supreme Court's reversal of Captain Buzard's conviction depended on its reading of the words "required by" in the proviso of 514 (2) (b). In the context of the entire statute and its prior construction, it gave those words the effect of barring the host State from imposing a motor vehicle "license, fee, or excise" unless (1) there was such a tax owing to and assessed by the home State and (2) that tax had not been paid by the serviceman. The mandatory registration statute of Washington, as of most States, imposes the duty to register only as to cars driven on its highways, and Captain Buzard had not driven his car in Washington during the registration year. The court reasoned that there was thus no "license, fee, or excise" owing to and assessed by his home State. Since there was on this view no tax "required by" Washington, the court concluded that California could not impose its tax, even though Captain Buzard had not paid any Washington tax.If this reading of the phrase "required by" in the proviso were correct, no host State could impose any tax on the licensing or registration of a serviceman's motor vehicle unless he had not paid taxes actually owing to and assessed by his home State. If the serviceman were under no obligation to his home State, and payment of taxes was a prerequisite of registration or licensing under the host State statutes, the host State authorities might consider themselves precluded from registering and licensing his car. The California court did not confront this consequence of its construction, because it regarded the relevant provisions of California statutes as allowing registration and licensing whether or not taxes were paid; hence, the possibility of unregistered cars using the California highways was thought not to be at issue.5 The court's construction, however, pertained to the federal, not the state, statute; if correct, it would similarly restrict the imposition of other host States' registration and licensing tax provisions, whether or not they are as flexible as California's. We must therefore consider the California court's construction in the light of the possibility that in at least some host States, it would permit servicemen to escape registration requirements altogether.Thus seen, the California court's construction must be rejected. Although little appears in the legislative history to explain the proviso,6 Congress was clearly concerned that servicemen stationed away from their home State should not drive unregistered or unlicensed motor vehicles. Every State required in 1944, and requires now, that motor vehicles using its highways be registered and bear license plates. Such requirements are designed to facilitate the identification of vehicle owners and the investigation of accidents, thefts, traffic violations and other violations of law. Commonly, if not universally, the statutes imposing the requirements of registration or licensing also prescribe fees which must be paid to authorize state officials to issue the necessary documents and plates. To assure that servicemen comply with the registration and licensing laws of some State, whether of their home State or the host State, we construe the phrase "license, fee, or excise required by the State ..." as equivalent to "license, fee, or excise of the State... ." Thus read, the phrase merely indicates Congress' recognition that, in one form or another, all States have laws governing the registration and licensing of motor vehicles, and that such laws impose certain taxes as conditions thereof. The serviceman who has not registered his car and obtained license plates under the laws "of" his home State, whatever the reason, may be required by the host State to register and license the car under its laws.The proviso is to be read, at the least, as assuring that 514 would not have the effect of permitting servicemen to escape the obligation of registering and licensing their motor vehicles. It has been argued that 514 (2) (b) also represents a congressional judgment that servicemen should contribute to the costs of highway maintenance, whether at home or where they are stationed, by paying whatever taxes the State of registration may levy for that purpose. We conclude, however, that no such purpose is revealed in the section or its legislative history and that its intent is limited to the purpose of assuring registration. Since at least the 2% tax here involved has been held not essential to that purpose as a matter of state law, we affirm the California Supreme Court's judgment.It is plain at the outset that California may collect the 2% tax only if it is a "license, fee, or excise" on a motor vehicle or its use. The very purpose of 514 in broadly freeing the nonresident serviceman from the obligation to pay property and income taxes was to relieve him of the burden of supporting the governments of the States where he was present solely in compliance with military orders. The statute operates whether or not the home State imposes or assesses such taxes against him. As we said in Dameron v. Brodhead, , "... though the evils of potential multiple taxation may have given rise to this provision, Congress appears to have chosen the broader technique of the statute carefully, freeing servicemen from both income and property taxes imposed by any state by virtue of their presence there as a result of military orders. It saved the sole right of taxation to the state of original residence whether or not that state exercised the right." Motor vehicles were included as personal property covered by the statute. Even if Congress meant to do more by the proviso of 514 (2) (b) than insure that the car would be registered and licensed in one of the two States, it would be inconsistent with the broad purposes of 514 to read subsection (2) (b) as allowing the host State to impose taxes other than "licenses, fees, or excises" when the "license, fee, or excise" of the home State is not paid.7 Although the Revenue and Taxation Code expressly denominates the tax "a license fee," 10751, there is no persuasive evidence Congress meant state labels to be conclusive; therefore, we must decide as a matter of federal law what "licenses, fees, or excises" means in the statute. See Storaasli v. Minnesota, . There is nothing in the legislative history to show that Congress intended a tax not essential to assure registration, such as the California "license fee," to fall within the category of "licenses, fees, or excises" host States might impose if home State registration was not effected. While it is true that a few state taxes in effect in 1944, like the California 2% "license fee," were imposed solely for revenue purposes, the great majority of state taxes also served to enforce registration and licensing statutes.8 No discussion of existing state laws appears in the Committee Reports. There is thus no indication that Congress was aware that any State required that servicemen contribute to the costs of highway maintenance without regard to the relevance of such requirements to the nonrevenue purposes of state motor vehicle laws. The conclusion that Congress lacked information about the California practice does not preclude a determination that it meant to include such taxes, levied only for revenue, as "licenses, fees, or excises." But in deciding that question in the absence of affirmative indication of congressional meaning, we must consider the overall purpose of 514 as well as the words of subsection (2) (b). Taxes like the California 2% "license fee" serve primarily a revenue interest, narrower in purpose but no different in kind from taxes raised to defray the general expenses of government.9 It is from the burden of taxes serving such ends that nonresident servicemen were to be freed, in the main, without regard to whether their home States imposed or sought to collect such taxes from them. Dameron v. Brodhead, supra. In recent amendments, Congress has reconfirmed this basic purpose.10 We do not think that subsection (2) (b) should be read as impinging upon it. Rather, reading the Act, as we must, "with an eye friendly to those who dropped their affairs to answer their country's call," Le Maistre v. Leffers, , we conclude that subsection (2) (b) refers only to those taxes which are essential to the functioning of the host State's licensing and registration laws in their application to the motor vehicles of nonresident servicemen. Whether the 2% tax is within the reach of the federal immunity is thus not to be tested, as California argues, by whether its inclusion frustrates the administration of California's tax policies. The test, rather, is whether the inclusion would deny the State power to enforce the nonrevenue provisions of state motor vehicle legislation.Whatever may be the case under the registration and licensing statutes of other States, California authorities have made it clear that the California 2% tax is not imposed as a tax essential to the registration and licensing of the serviceman's motor vehicle.11 Not only did the California Supreme Court regard the statutes as permitting registration without payment of the tax, but the District Court of Appeal, in another case growing out of this controversy, expressly held that "[t]he registration statute has an entirely different purpose from the license fee statutes, and it is clearly severable from them." Buzard v. Justice Court, 198 Cal. App. 2d 814, 817, 18 Cal. Rptr. 348, 349-350.12 The California Supreme Court also held, in effect, that invalidity of the "license fee" as applied was a valid defense to prosecution under Vehicle Code 4000. In these circumstances, and since the record is reasonably to be read as showing that Captain Buzard would have registered his Oldsmobile but for the demand for payment of the 2% tax, the California Supreme Court's reversal of his conviction is Affirmed. |
8 | After Calvert Fire Insurance Co. (hereafter respondent) had advised American Mutual Reinsurance Co. (American) that respondent was rescinding its membership in a reinsurance pool that American operated, American sued respondent in an Illinois state court for a declaration that the pool agreement with respondent remained in effect. Six months later, respondent in its answer asserted the unenforceability of the pool agreement on the grounds that American had violated, inter alia, the Securities Act of 1933; Rule 10b-5, promulgated under the Securities Exchange Act of 1934 (hereafter 1934 Act); and the Illinois Securities Act, and counterclaimed for damages on all its defense claims except the one involving Rule 10b-5, which under the 1934 Act's terms was exclusively enforceable in the federal courts. Respondent on the same day filed a complaint against American in the Federal District Court for damages for American's alleged Rule 10b-5 violation, and joined therewith claims based on each of the other defensive counts made in the state-court action. American moved to dismiss or abate the federal-court action, the motion to dismiss being based on the contention that the reinsurance agreement was not a "security" within the meaning of the 1933 or 1934 Act, and the motion to abate being on the ground that the earlier state proceeding included all issues except the one involving Rule 10b-5. Petitioner, the District Court Judge, granted American's motion to defer the federal proceeding until completion of the state proceeding, except the Rule 10b-5 damages claim. He rejected respondent's contention that the District Court should proceed with the entire case because of its exclusive jurisdiction over that claim, and noted that the state court was bound to provide the equitable relief sought by respondent by recognizing a valid Rule 10b-5 claim as a defense to the state action. Petitioner heard argument on, but has not yet decided, the question of whether respondent's interest in the reinsurance pool constituted a "security" as defined in the 1934 Act. After petitioner had rejected motions to reconsider his stay order and refused to certify an interlocutory appeal, respondent petitioned the Court of Appeals for a writ of mandamus directing petitioner to adjudicate the Rule 10b-5 claim. Thereafter that court, relying on Colorado River Water Conservation Dist. v. United States, , granted the petition and directed petitioner to "proceed immediately with Calvert's claim for damages and equitable relief" under the 1934 Act. Held: The judgment is reversed. Pp. 661-667; 667-668. 560 F.2d 792, reversed. MR. JUSTICE REHNQUIST, joined by MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE STEVENS, concluded: Issuance of the writ of mandamus by the Court of Appeals impermissibly interfered with petitioner's discretion to control his docket. Pp. 661-667. (a) Though a court of appeals has the power to issue a writ of mandamus directing a district court to proceed to judgment in a pending case when it is the district court's duty to do so, the burden is on the moving party to show that its right to issuance of the writ is "clear and indisputable." P. 662. (b) Where there is duplicative litigation in the state and federal courts, the decision whether or not to defer to the state courts is largely committed to the discretion of the district court, Brillhart v. Excess Ins. Co., , even when matters of federal law are involved, Colorado River, supra, at 820. Pp. 662-664. (c) This case, unlike Colorado River, did not involve outright dismissal of the action, and respondent remained free to urge petitioner to reconsider his decision to defer based on new information as to the progress of the state case; to that extent deferral (contrary to respondent's argument) was not equivalent to dismissal. Pp. 664-665. (d) Though a district court's exercise of discretion may be subject to review in a proper interlocutory appeal, it ought not be overridden by a writ of mandamus. Where a matter is committed to a district court's discretion, it cannot be said that a litigant's right to a particular result is "clear and indisputable." Here petitioner has not heedlessly refused to adjudicate the Rule 10b-5 damages claim (the only issue that may not concurrently be resolved by both the state and federal courts), and as far as the record shows his delay in adjudicating that claim is simply the product of a district court's normal excessive workload, compounded by "the unfortunate consequence of making the judge a litigant" in this mandamus proceeding. Ex parte Fahey, . Pp. 665-667. MR. JUSTICE BLACKMUN, who is of the view that Brillhart v. Excess Ins. Co., , a diversity case, has no application to this federal-issue case, concluded that the issuance of mandamus in this case was premature. The judgment of the Court of Appeals must be reversed because the court should have done no more than require reconsideration by petitioner in light of Colorado River Water Conservation Dist. v. United States, , which was decided after petitioner's stay order. Pp. 667-668. REHNQUIST, J., announced the Court's judgment and delivered an opinion, in which STEWART, WHITE, and STEVENS, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 667. BURGER, C. J., filed a dissenting opinion, post, p. 668. BRENNAN, J., filed a dissenting opinion, in which BURGER, C. J., and MARSHALL and POWELL, JJ., joined, post, p. 668.Milton V. Freeman argued the cause for petitioner. With him on the briefs were Dennis G. Lyons, Werner J. Kronstein, and Stanley A. Kaplan.Louis Loss argued the cause for respondent Calvert Fire Insurance Co. With him on the brief was Michael L. Weissman. Thomas J. Weithers and D. Kendall Griffith filed a brief for American Mutual Reinsurance Co., respondent under this Court's Rule 21 (4), in support of petitioner.MR. JUSTICE REHNQUIST announced the judgment of the Court, and delivered an opinion in which MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE STEVENS joined.On August 15, 1977, the Court of Appeals for the Seventh Circuit granted a petition for writ of mandamus ordering petitioner, a judge of the United States District Court for the Northern District of Illinois, "to proceed immediately" to adjudicate a claim based upon the Securities Exchange Act of 1934 and brought by respondent, Calvert Fire Insurance Co., against American Mutual Reinsurance Co., despite the pendency of a substantially identical proceeding between the same parties in the Illinois state courts. 560 F.2d 792, 797. The Court of Appeals felt that our recent decision in Colorado River Water Conservation Dist. v. United States, , compelled the issuance of the writ. We granted certiorari to consider the propriety of the use of mandamus to review a District Court's decision to defer to concurrent state proceedings, , and we now reverse.IRespondent Calvert writes property and casualty insurance. American Mutual operates a reinsurance pool whereby a number of primary insurers protect themselves against unanticipated losses. Membership in the pool requires both the payment of premiums by pool members and indemnification of the pool in the event that losses exceed those upon which the premiums are calculated. Calvert joined the pool in early 1974, but in April of that year notified American Mutual of its election to rescind the agreement by which it became a member.In July 1974, American Mutual sued in the Circuit Court of Cook County, Ill., to obtain a declaration that the pool agreement between it and Calvert was in full force and effect. Six months later, Calvert in its answer to that suit asserted that the pool agreement was not enforceable against it because of violations by American Mutual of the Securities Act of 1933, the Securities Exchange Act of 1934, the Illinois Securities Act, the Maryland Securities Law, and the state common law of fraud. With its answer Calvert filed a counterclaim seeking $2 million in damages from American Mutual on all of the grounds that it set up in defense except for the defense based on the Securities Exchange Act of 1934. Since 27 of that Act, 48 Stat. 902, as amended, 15 U.S.C. 78aa (1976 ed.), granted the district courts of the United States exclusive jurisdiction to enforce the Act, Calvert on the same day filed a complaint in the United States District Court for the Northern District of Illinois seeking damages from American Mutual for an alleged violation of Rule 10b-5, 17 CFR 240.10b-5 (1977), issued under 10 (b) of the Act, 15 U.S.C. 78j (b) (1976 ed.). Joined with this Rule 10b-5 count were claims based on each of the other grounds asserted by it in defense to American Mutual's state-court action.In February 1975, more than seven months after it had begun its state-court action, but less than one month after Calvert had filed its answer and counterclaim in that action and its complaint in the federal court, American Mutual moved to dismiss or abate the latter. The claim for dismissal was based on the substantive assertion that the reinsurance agreement was not a "security" within the meaning of the 1933 or 1934 Act. The motion to abate was based on the fact that the state proceedings commenced six months before the federal proceedings included every claim and defense except the claim for damages based on Rule 10b-5 under the 1934 Act.In May 1975, Judge Will substantially granted American Mutual's motion to defer the federal proceeding until the completion of the state proceedings, observing that a tentative trial date had already been set by the state court. Federal litigation of the same issues would therefore be duplicative and wasteful. He rejected Calvert's contention that the court should proceed with the entire case because of its exclusive jurisdiction under the 1934 Act, noting that the state court was bound to provide the equitable relief sought by Calvert by recognizing a valid Rule 10b-5 claim as a defense to the state action.1 Only Calvert's claim for damages under Rule 10b-5 was subject to the exclusive jurisdiction of the federal court. Petitioner therefore stayed all aspects of Calvert's federal action subject to the concurrent jurisdiction of both courts, recognizing "only Calvert's very limited claim for monetary damages under the 1934 Securities Act as a viable claim in this court." App. to Pet. for Cert. B-9. On May 9, 1975, Judge Will heard oral argument on the basic question of whether Calvert's interest in the reinsurance pool is a security within the meaning of the 1934 Act. He has not yet rendered a decision on that issue.2 Judge Will rejected two motions to reconsider his stay order and refused to certify an interlocutory appeal pursuant to 28 U.S.C. 1292 (b). On May 26, 1976, Calvert petitioned the Court of Appeals for the Seventh Circuit for a writ of mandamus directing Judge Will to proceed to adjudicate its Rule 10b-5 claims.3 Nearly 14 months later, on August 15, 1977, the Court of Appeals granted the petition and directed Judge Will to "proceed immediately with Calvert's claim for damages and equitable relief under the Securities Exchange Act of 1934." 560 F.2d, at 797.4 We granted certiorari to consider Judge Will's contention that the issuance of the writ of mandamus impermissibly interfered with the discretion of a district court to control its own docket. .IIThe correct disposition of this case hinges in large part on the appropriate standard of inquiry to be employed by a court of appeals in determining whether to issue a writ of mandamus to a district court. On direct appeal, a court of appeals has broad authority to "modify, vacate, set aside or reverse" an order of a district court, and it may direct such further action on remand "as may be just under the circumstances." 28 U.S.C. 2106. By contrast, under the All Writs Act, 28 U.S.C. 1651 (a), courts of appeals may issue a writ of mandamus only when "necessary or appropriate in aid of their respective jurisdictions." Whereas a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances "would undermine the settled limitations upon the power of an appellate court to review interlocutory orders." Will v. United States, n. 6 (1967).As we have repeatedly reaffirmed in cases such as Kerr v. United States District Court, , and Bankers Life & Cas. Co. v. Holland, , the "traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Roche v. Evaporated Milk Assn., . Calvert makes no contention that petitioner has exceeded the bounds of his jurisdiction. Rather, it contends that the District Court, in entering the stay order, has refused "to exercise its authority when it is its duty to do so." Ibid. There can be no doubt that, where a district court persistently and without reason refuses to adjudicate a case properly before it, the court of appeals may issue the writ "in order that [it] may exercise the jurisdiction of review given by law." Insurance Co. v. Comstock, 16 Wall. 258, 270 (1873). "Otherwise the appellate jurisdiction could be defeated and the purpose of the statute authorizing the writ thwarted by unauthorized action of the district court obstructing the appeal." Roche, supra, at 25.5 To say that a court of appeals has the power to direct a district court to proceed to judgment in a pending case "when it is its duty to do so," 319 U.S., at 26, states the standard but does not decide this or any other particular case. It is essential that the moving party satisfy "the burden of showing that its right to issuance of the writ is `clear and indisputable.'" Bankers Life & Cas. Co., supra, at 384, quoting United States v. Duell, . Judge Will urges that Calvert does not have a "clear and indisputable" right to the adjudication of its claims in the District Court without regard to the concurrent state proceedings. To that issue we now must turn.IIIIt is well established that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." McClellan v. Carland, . It is equally well settled that a district court is "under no compulsion to exercise that jurisdiction," Brillhart v. Excess Ins. Co., , 494 (1942), where the controversy may be settled more expeditiously in the state court. Although most of our decisions discussing the propriety of stays or dismissals of duplicative actions have concerned conflicts of jurisdiction between two federal district courts, e. g., Kerotest Mfg. Co., v. C-O-Two Fire Equipment Co., ; Landis v. North American Co., , we have recognized the relevance of those cases in the analogous circumstances presented here. See Colorado River, 424 U.S., at 817-819. In both situations, the decision is largely committed to the "carefully considered judgment," id., at 818, of the district court.This power has not always been so clear. In McClellan, on facts similar to those presented here, this Court indicated that the writ might properly issue where the District Court had stayed its proceedings in deference to concurrent state proceedings.6 Such an automatic exercise of authority may well have been appropriate in a day when Congress had authorized fewer claims for relief in the federal courts, so that duplicative litigation and the concomitant tension between state and federal courts could rarely result. However, as the overlap between state claims and federal claims increased, this Court soon recognized that situations would often arise when it would be appropriate to defer to the state courts."Ordinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties. Gratuitous interference with the orderly and comprehensive disposition of a state court litigation should be avoided." Brillhart, supra, at 495. The decision in such circumstances is largely committed to the discretion of the district court. 316 U.S., at 494. Furthermore, Colorado River, supra, at 820, established that such deference may be equally appropriate even when matters of substantive federal law are involved in the case.It is true that Colorado River emphasized "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." 424 U.S., at 817. That language underscores our conviction that a district court should exercise its discretion with this factor in mind, but it in no way undermines the conclusion of Brillhart that the decision whether to defer to the concurrent jurisdiction of a state court is, in the last analysis, a matter committed to the district court's discretion. Seizing upon the phrase "unflagging obligation" in an opinion which upheld the correctness of a district court's final decision to dismiss because of concurrent jurisdiction does little to bolster a claim for the extraordinary writ of mandamus in a case such as this where the District Court has rendered no final decision.We think it of considerably more importance than did the Court of Appeals that Colorado River came before the Court of Appeals on appeal pursuant to 28 U.S.C. 1291 following outright dismissal of the action by the District Court, rather than through an effort on the part of the federal-court plaintiff to seek mandamus. Calvert contends here, and the Court of Appeals for the Seventh Circuit agreed, that Judge Will's order deferring the federal proceedings was "equivalent to a dismissal." 560 F.2d, at 796. We are loath to rest our analysis on this ubiquitous phrase, for if used carelessly or without a precise definition it may impede rather than assist sound resolution of the underlying legal issue. Obviously, if Judge Will had dismissed Calvert's action Calvert could have appealed the order of dismissal to the Court of Appeals, which could have required such action of Judge Will "as may be just under the circumstances." 28 U.S.C. 2106. Since he did not dismiss the action, Calvert remained free to urge reconsideration of his decision to defer based on new information as to the progress of the state case; to this extent, at least, deferral was not "equivalent to a dismissal."There are sound reasons for our reiteration of the rule that a district court's decision to defer proceedings because of concurrent state litigation is generally committed to the discretion of that court. No one can seriously contend that a busy federal trial judge, confronted both with competing demands on his time for matters properly within his jurisdiction and with inevitable scheduling difficulties because of the unavailability of lawyers, parties, and witnesses, is not entrusted with a wide latitude in setting his own calendar. Had Judge Will simply decided on his own initiative to defer setting this case for trial until the state proceedings were completed, his action would have been the "equivalent" of granting the motion of American Mutual to defer, yet such action would at best have afforded Calvert a highly dubious claim for mandamus. We think the fact that the judge accomplished this same result by ruling favorably on a party's motion to defer does not change the underlying legal question.Although the District Court's exercise of its discretion may be subject to review and modification in a proper interlocutory appeal, cf. Landis, 299 U.S., at 256-259, we are convinced that it ought not to be overridden by a writ of mandamus.7 Where a matter is committed to the discretion of a district court, it cannot be said that a litigant's right to a particular result is "clear and indisputable."8 Calvert contends that a district court is without power to stay proceedings, in deference to a contemporaneous state action, where the federal courts have exclusive jurisdiction over the issue presented. Whether or not this is so, petitioner has not purported to stay consideration of Calvert's claim for damages under the Securities Exchange Act of 1934, which is the only issue which may not be concurrently resolved by both courts.9 It is true that petitioner has not yet ruled upon this claim. Where a district court obstinately refuses to adjudicate a matter properly before it, a court of appeals may issue the writ to correct "unauthorized action of the district court obstructing the appeal." Roche, 319 U.S., at 25, citing Ex parte United States, . Calvert, however, has neither alleged nor proved such a heedless refusal to proceed as a basis for the issuance of the writ here. Its petition offers only the bare allegation that Judge Will "in effect" abated the damages claim in deference to the state proceedings. App. 12. Judge Will has never issued such an order, and the sparse record before us will not support any such inference. So far as appears, the delay in adjudicating the damages claim is simply a product of the normal excessive load of business in the District Court, compounded by "the unfortunate consequence of making the judge a litigant" in this mandamus proceeding. Ex parte Fahey, .The judgment of the Court of Appeals is therefore Reversed. |
1 | Appellees filed a class action in Federal District Court against the Pennsylvania Secretary of Public Welfare and the directors of three state mental health facilities, seeking declaratory and injunctive relief and contending that Pennsylvania's procedures for the voluntary admission of mentally ill and mentally retarded children to a state hospital violated the Due Process Clause of the Fourteenth Amendment. Holding that the State's procedures were insufficient to satisfy the Due Process Clause and that only a formal adversary hearing could suffice to protect children in appellees' class from being needlessly confined in mental hospitals, the District Court concluded that specified procedures were required before any child could be admitted voluntarily to a mental hospital.Held: 1. The risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements for admission are satisfied. That inquiry must carefully probe the child's background and must also include an interview with the child. It is also necessary that the decisionmaker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, the child's continuing need for commitment must be reviewed periodically. Parham v. J. R., ante, p. 584, controlling. P. 646. 2. Pennsylvania's procedures comply with these due process requirements. No child is admitted without at least one and often more psychiatric examinations by an independent team of mental health professionals whose sole concern is whether the child needs and can benefit from institutional care. The treatment team interviews the child and parents and compiles a full background history. If the treatment team concludes that institutional care is not in the child's best interest, it must refuse the child's admission; every child's condition is reviewed at least every 30 days. Pp. 646-650. 459 F. Supp. 30, reversed and remanded. BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a statement concurring in the judgment, post, p. 650. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined post, p. 650.Norman J. Watkins, Deputy Attorney General of Pennsylvania, argued the cause for appellants. With him on the briefs were Robert B. Hoffman, Deputy Attorney General, and Gerald Gornish, Acting Attorney General.David Ferleger argued the cause and filed a brief for appellees.* [Footnote *] Briefs of amici curiae urging affirmance were filed by S. Shepherd Tate, John H. Lashly, Russell E. Webb, and Joseph F. Vargyas for the American Bar Association; and by Ronald M. Soskin for the National Center for Law and the Handicapped et al.Mr. CHIEF JUSTICE BURGER delivered the opinion of the Court.This appeal raises issues similar to those decided in Parham v. J. R., ante, p. 584, as to what process is due when the parents or guardian of a child seek state institutional mental health care.IThis is the second time we have reviewed a District Court's judgment that Pennsylvania's procedures for the voluntary admission of mentally ill and mentally retarded children to a state hospital are unconstitutional. In the earlier suit, five children who were between the ages of 15 and 18 challenged the 1966 statute pursuant to which they had been admitted to Haverford State Hospital. Pa. Stat. Ann., Tit. 50, 4402, 4403 (Purdon 1969). After a three-judge District Court, with one judge dissenting, declared the statute unconstitutional, Bartley v. Kremens, 402 F. Supp. 1039 (ED Pa. 1975), the Pennsylvania Legislature amended its mental health code with regard to the mentally ill. The amendments placed adolescents over the age of 14 in essentially the same position as adults for purposes of a voluntary admission. Mental Health Procedures Act of 1976, 201, Pa. Stat. Ann., Tit. 50, 7201 (Purdon Supp. 1978). Under the new statute, the named plaintiffs could obtain their requested releases from the state hospitals independently of the constitutionality of the 1966 statute, and we therefore held that the claims of the named plaintiffs were moot. Kremens v. Bartley, . We then remanded the case to the District Court for "reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims." Id., at 135.On remand, 12 new plaintiffs, appellees here, were named to represent classes of mentally ill and mentally retarded children. Nine of the children were younger than 14 and constituted all of those who had been admitted to the State's hospitals for the mentally ill in accordance with the 1976 Act at the time the suit was brought; three other children represented a class of patients who were 18 and younger and who had been or would be admitted to a state hospital for the mentally retarded under the 1966 Act and 1973 regulations implementing that Act. All 12 children had been admitted on the application of parents or someone standing in loco parentis with state approval after an independent medical examination.The suit was filed against several named defendants, the Pennsylvania Secretary of Public Welfare and the directors of three state owned and operated facilities. The District Court, however, certified a defendant class that consisted of "`directors of all mental health and mental retardation facilities in Pennsylvania which are subject to regulation by the defendant Secretary of Public Welfare.'" 459 F. Supp. 30, 40 n. 37 (ED Pa. 1978).1 Representatives of the nine mentally ill children sought a declaration that the admission procedures embodied in 2012 of the Pennsylvania Mental Health Procedures Act of 1976, Pa. Stat. Ann., Tit. 50, 7201 (Purdon Supp. 1978), which subsequently have been expanded by regulations promulgated by the Secretary of Public Welfare, 8 Pa. Bull. 2432 et seq. (1978), violated their procedural due process rights and requested the court to issue an injunction against the statute's future enforcement. The three mentally retarded children presented the same claims as to 4023 and 4034 of the Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann., Tit. 50, 4402 and 4403 (Purdon 1969), and the regulations promulgated thereunder.5 The District Court certified two subclasses of plaintiffs6 under Fed. Rule Civ. Proc. 23 and held that the statutes challenged by each subclass were unconstitutional. It held that the State's procedures were insufficient to satisfy the Due Process Clause of the Fourteenth Amendment.The District Court's analysis in this case was similar to that used by the District Court in J. L. v. Parham, 412 F. Supp. 112 (MD Ga. 1976), reversed and remanded sub nom. Parham v. J. R., ante, p. 584. The court in this case concluded that these children had a constitutionally protected liberty interest that could not be "waived" by their parents. This conclusion, coupled with the perceived fallibility of psychiatric diagnosis, led the court to hold that only a formal adversary hearing could suffice to protect the children in appellees' class from being needlessly confined in mental hospitals.To further protect the children's interests, the court concluded that the following procedures were required before any child could be admitted voluntarily to a mental hospital: 1) 48-hour notice prior to any hearing; 2) legal counsel "during all significant stages of the commitment process"; 3) the child's presence at all commitment hearings; 4) a finding by an impartial tribunal based on clear and convincing evidence that the child required institutional treatment; 5) a probable-cause determination within 72 hours after admission to a hospital; 6) a full hearing, including the right to confront and cross-examine witnesses, within two weeks from the date of the initial admission. App. 1097a-1098a.7 Appellants, all of the defendants before the District Court, appealed the judgment. We noted probable jurisdiction, and consolidated the case with Parham v. J. R., ante, p. 584. .II(a) Much of what we said in Parham v. J. R. applies with equal force to this case. The liberty rights and interests of the appellee children, the prerogatives, responsibilities, and interests of the parents, and the obligations and interests of the State are the same. Our holding as to what process is due in Parham controls here, particularly: "We conclude that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a `neutral factfinder' to determine whether the statutory requirements for admission are satisfied... . That inquiry must carefully probe the child's background using all available sources, including, but not limited to, parents, schools, and other social agencies. Of course, the review must also include an interview with the child. It is necessary that the decision maker have the authority to refuse to admit any child who does not satisfy the medical standards for admission. Finally, it is necessary that the child's continuing need for commitment be reviewed periodically by a similarly independent procedure." Parham v. J. R., ante, at 606-607. The only issue is whether Pennsylvania's procedures for the voluntary commitment of children comply with these requirements.(b) Unlike in Parham v. J. R., where the statute being challenged was general and thus the procedures for admission were evaluated hospital by hospital, the statute and regulations in Pennsylvania are specific. Our focus here is on the codified procedures declared unconstitutional by the District Court.The Mental Health Procedures Act of 1976 and regulations promulgated by the Secretary describe the procedures for the voluntary admission for inpatient treatment of mentally ill children. Section 201 of the Act provides that "a parent, guardian, or person standing in loco parentis to a child less than 14 years of age" may apply for a voluntary examination and treatment for the child. After the child receives an examination and is provided with temporary treatment, the hospital must formulate "an individualized treatment plan ... by a treatment team." Within 72 hours the treatment team is required to determine whether inpatient treatment is "necessary" and why. Pa. Stat. Ann., Tit. 50, 7205 (Purdon Supp. 1978). The hospital must inform the child and his parents both of the necessity for institutional treatment and of the nature of the proposed treatment. Ibid.Regulations promulgated under the 1976 Act provide that each child shall be re-examined and his or her treatment plan reviewed not less than once every 30 days. See 7100.108 (a), 8 Pa. Bull. 2436 (1978). The regulations also permit a child to object to the treatment plan and thereby obtain a review by a mental health professional independent of the treatment team. The findings of this person are reported directly to the director of the hospital who has the power and the obligation to release any child who no longer needs institutional treatment.The statute indeed provides three methods for release of a child under the age of 14 from a mental hospital. First, the child's parents or guardian may effect his release at will. Pa. Stat. Ann., Tit. 50, 7206 (b) (Purdon Supp. 1978). Second, "any responsible party" may petition the juvenile court if the person believes that treatment in a less restrictive setting would be in the best interests of the child. Ibid. If such a petition is filed, an attorney is appointed to represent the child's interests and a hearing is held within 10 days to determine "what inpatient treatment, if any, is in the minor's best interest." Ibid. Finally, the director of the hospital may release any child whenever institutional treatment is no longer medically indicated. 7206 (c). The Mental Health and Mental Retardation Act of 1966 regulates the voluntary admission for inpatient hospital habilitation of the mentally retarded. The admission process has been expanded significantly by regulations promulgated in 1973 by Pennsylvania's Secretary of Public Welfare. 3 Pa. Bull. 1840 (1973). Unlike the procedure for the mentally ill, a hospital is not permitted to admit a mentally retarded child based solely on the application of a parent or guardian. All children must be referred by a physician and each referral must be accompanied by a medical or psychological evaluation. In addition, the director of the institution must make an independent examination of each child, and if he disagrees with the recommendation of the referring physician as to whether hospital care is "required," the child, must be discharged. Mentally retarded children or anyone acting on their behalf may petition for a writ of habeas corpus to challenge the sufficiency or legality of the "proceedings leading to commitment." Pa. Stat. Ann., Tit. 50, 4426 (Purdon 1969).Any child older than 13 who is admitted to a hospital must have his rights explained to him and must be informed that a status report on his condition will be provided periodically. The older child is also permitted to object, either orally or in writing, to his hospitalization. After such objection, the director of the facility, if he feels that hospitalization is still necessary, must institute an involuntary commitment proceeding under 406 of the Act, Pa. Stat. Ann., Tit. 50, 4406 (Purdon 1969).What the statute and regulations do not make clear is how the hospital staff decides that inpatient care is required for a child. The director of Haverford State Hospital for the mentally ill was the sole witness called by either side to testify about the decisionmaking process at a state hospital. She described the process as follows: "[T]here is an initial examination made by the psychiatrist, and is so designated as an admission note on the hospital record. Subsequently, for all adolescents on the Adolescent Service at Haverford State Hospital, there are routine studies done, such as an electroencephalogram, a neurological examination, a medical examination, and a complete battery of psychological tests and school evaluation, as well as a psychiatric evaluation. When all their data has been compiled, an entire staff conference is held, which is called a new case conference, at which point the complete case is re-examined and it is decided whether or not the child needs hospitalization, and at that same time, as well, an adequate treatment course is planned." App. 112a. In addition to the physical and mental examinations that are conducted for each child within the institutions, the staff compiles a substantial "pre-admission background information" file on each child.8 After the child is admitted, there is a periodic review of the child's condition by the staff. His status is reviewed by a different social worker at least every 30 days. Since the State places a great deal of emphasis on family therapy, the parents or guardians are met with weekly to discuss the child's case. Id., at 113a.We are satisfied that these procedures comport with the due process requirements set out earlier. No child is admitted without at least one and often more psychiatric examinations by an independent team of mental health professionals whose sole concern under the statute is whether the child needs and can benefit from institutional care. The treatment team not only interviews the child and parents but also compiles a full background history from all available sources. If the treatment team concludes that institutional care is not in the child's best interest, it must refuse the child's admission. Finally, every child's condition is reviewed at least every 30 days. This program meets the criteria of our holding in Parham.9 Accordingly, the judgment of the District Court that Pennsylvania's statutes and regulations are unconstitutional is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. For the reasons stated in his opinion concurring in the judgment in Parham v. J. R., ante, p. 621, MR. JUSTICE STEWART concurs in the judgment. |
0 | Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State used peremptory challenges to strike all four black prospective jurors qualified to serve on the jury. Foster argued that the State's use of those strikes was racially motivated, in violation of Batson v. Kentucky, 476 U. S. 79. The trial court rejected that claim, and the Georgia Supreme Court affirmed. Foster then renewed his Batson claim in a state habeas proceeding. While that proceeding was pending, Foster, through the Georgia Open Records Act, obtained from the State copies of the file used by the prosecution during his trial. Among other documents, the file contained (1) copies of the jury venire list on which the names of each black prospective juror were highlighted in bright green, with a legend indicating that the highlighting "represents Blacks"; (2) a draft affidavit from an investigator comparing black prospective jurors and concluding, "If it comes down to having to pick one of the black jurors, [this one] might be okay"; (3) notes identifying black prospective jurors as "B#1," "B#2," and "B#3"; (4) notes with "N" (for "no") appearing next to the names of all black prospective jurors; (5) a list titled "[D]efinite NO's" containing six names, including the names of all of the qualified black prospective jurors; (6) a document with notes on the Church of Christ that was annotated "NO. No Black Church"; and (7) the questionnaires filled out by five prospective black jurors, on which each juror's response indicating his or her race had been circled. The state habeas court denied relief. It noted that Foster's Batson claim had been adjudicated on direct appeal. Because Foster's renewed Batson claim "fail[ed] to demonstrate purposeful discrimination," the court concluded that he had failed to show "any change in the facts sufficient to overcome" the state law doctrine of res judicata. The Georgia Supreme Court denied Foster the Certificate of Probable Cause necessary to file an appeal.Held: 1. This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on his Batson claim. Although this Court cannot ascertain the grounds for that unelaborated judgment, there is no indication that it rested on a state law ground that is both "independent of the merits" of Foster's Batson claim and an "adequate basis" for that decision, so as to preclude jurisdiction. Harris v. Reed, 489 U. S. 255, 260. The state habeas court held that the state law doctrine of res judicata barred Foster's claim only by examining the entire record and determining that Foster had not alleged a change in facts sufficient to overcome the bar. Based on this lengthy "Batson analysis," the state habeas court concluded that Foster's renewed Batson claim was "without merit." Because the state court's application of res judicata thus "depend[ed] on a federal constitutional ruling, [that] prong of the court's holding is not independent of federal law, and [this Court's] jurisdiction is not precluded." Ake v. Oklahoma, 470 U. S. 68, 75; see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152. Pp. 6-9. 2. The decision that Foster failed to show purposeful discrimination was clearly erroneous. Pp. 9-25. (a) Batson provides a three-step process for adjudicating claims such as Foster's. "First, a defendant must make a prima facie showing that a preemptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Snyder v. Louisiana, 552 U. S. 472, 477 (internal quotation marks and brackets omitted). Only Batson's third step is at issue here. That step turns on factual findings made by the lower courts, and this Court will defer to those findings unless they are clearly erroneous. See ibid. Pp. 9-10. (b) Foster established purposeful discrimination in the State's strikes of two black prospective jurors: Marilyn Garrett and Eddie Hood. Though the trial court accepted the prosecution's justifications for both strikes, the record belies much of the prosecution's reasoning. Pp. 10-22. (i) The prosecution explained to the trial court that it made a last-minute decision to strike Garrett only after another juror, Shirley Powell, was excused for cause on the morning that the strikes were exercised. That explanation is flatly contradicted by evidence showing that Garrett's name appeared on the prosecution's list of "[D]efinite NO's"--the six prospective jurors whom the prosecution was intent on striking from the outset. The record also refutes several of the reasons the prosecution gave for striking Garrett instead of Arlene Blackmon, a white prospective juror. For example, while the State told the trial court that it struck Garrett because the defense did not ask her for her thoughts about such pertinent trial issues as insanity, alcohol, or pre-trial publicity, the record reveals that the defense asked Garrett multiple questions on each topic. And though the State gave other facially reasonable justifications for striking Garrett, those are difficult to credit because of the State's willingness to accept white jurors with the same characteristics. For example, the prosecution claims that it struck Garrett because she was divorced and, at age 34, too young, but three out of four divorced white prospective jurors and eight white prospective jurors under age 36 were allowed to serve. Pp. 11-17. (ii) With regard to prospective juror Hood, the record similarly undermines the justifications proffered by the State to the trial court for the strike. For example, the prosecution alleged in response to Foster's pretrial Batson challenge that its only concern with Hood was the fact that his son was the same age as the defendant. But then, at a subsequent hearing, the State told the court that its chief concern was with Hood's membership in the Church of Christ. In the end, neither of those reasons for striking Hood withstands scrutiny. As to the age of Hood's son, the prosecution allowed white prospective jurors with sons of similar age to serve, including one who, in contrast to Hood, equivocated when asked whether Foster's age would be a factor at sentencing. And as to Hood's religion, the prosecution erroneously claimed that three white Church of Christ members were excused for cause because of their opposition to the death penalty, when in fact the record shows that those jurors were excused for reasons unrelated to their views on the death penalty. Moreover, a document acquired from the State's file contains a handwritten note stating, "NO. NO Black Church," while asserting that the Church of Christ does not take a stand on the death penalty. Other justifications for striking Hood fail to withstand scrutiny because no concerns were expressed with regard to similar white prospective jurors. Pp. 17-23. (c) Evidence that a prosecutor's reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination. Miller-El v. Dretke, 545 U. S. 231, 241. Such evidence is compelling with respect to Garrett and Hood and, along with the prosecution's shifting explanations, misrepresentations of the record, and persistent focus on race, leads to the conclusion that the striking of those prospective jurors was "motivated in substantial part by discriminatory intent." Snyder, 552 U. S., at 485. P. 23. (d) Because Batson was decided only months before Foster's trial, the State asserts that the focus on black prospective jurors in the prosecution's file was an effort to develop and maintain a detailed account should the prosecution need a defense against any suggestion that its reasons were pretextual. That argument, having never before been raised in the 30 years since Foster's trial, "reeks of afterthought." Miller-El, 545 U. S., at 246. And the focus on race in the prosecution's file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. Pp. 23-25.Reversed and remanded. Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion.Opinion of the Court 578 U. S. ____ (2016)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 14-8349TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE CHATMAN, WARDENon writ of certiorari to the supreme court of georgia[May 23, 2016] Chief Justice Roberts delivered the opinion of the Court. Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Foster argued that the State's use of those strikes was racially motivated, in violation of our decision in Batson v. Kentucky, 476 U. S. 79 (1986). The trial court and the Georgia Supreme Court rejected Foster's Batson claim. Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse.I On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White's possessions were recovered from Foster's home and from Foster's two sisters. The State indicted Foster on charges of malice murder and burglary. He faced the death penalty. Foster v. State, 258 Ga. 736, 374 S. E. 2d 188 (1988). District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State at trial. Jury selection proceeded in two phases: removals for cause and peremptory strikes. In the first phase, each prospective juror completed a detailed questionnaire, which the prosecution and defense reviewed. The trial court then conducted a juror-by-juror voir dire of approximately 90 prospective jurors. Throughout this process, both parties had the opportunity to question the prospective jurors and lodge challenges for cause. This first phase whittled the list down to 42 "qualified" prospective jurors. Five were black. In the second phase, known as the "striking of the jury," both parties had the opportunity to exercise peremptory strikes against the array of qualified jurors. Pursuant to state law, the prosecution had ten such strikes; Foster twenty. See Ga. Code Ann. §15-12-165 (1985). The process worked as follows: The clerk of the court called the qualified prospective jurors one by one, and the State had the option to exercise one of its peremptory strikes. If the State declined to strike a particular prospective juror, Foster then had the opportunity to do so. If neither party exercised a peremptory strike, the prospective juror was selected for service. This second phase continued until 12 jurors had been accepted. The morning the second phase began, Shirley Powell, one of the five qualified black prospective jurors, notified the court that she had just learned that one of her close friends was related to Foster. The court removed Powell for cause. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett. The striking of the jury then commenced. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. Foster immediately lodged a Batson challenge. The trial court rejected the objection and empaneled the jury. The jury convicted Foster and sentenced him to death. Following sentencing, Foster renewed his Batson claim in a motion for a new trial. After an evidentiary hearing, the trial court denied the motion. The Georgia Supreme Court affirmed, 258 Ga., at 747, 374 S. E. 2d, at 197, and we denied certiorari, Foster v. Georgia, 490 U. S. 1085 (1989). Foster subsequently sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, again pressing his Batson claim. While the state habeas proceeding was pending, Foster filed a series of requests under the Georgia Open Records Act, see Ga. Code Ann. §§50-18-70 to 50-18-77 (2002), seeking access to the State's file from his 1987 trial. In response, the State disclosed documents related to the jury selection at that trial. Over the State's objections, the state habeas court admitted those documents into evidence. They included the following: (1) Four copies of the jury venire list. On each copy, the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting "represents Blacks." See, e.g., App. 253. The letter "B" also appeared next to each black prospective juror's name. See, e.g., ibid. According to the testimony of Clayton Lundy, an investigator who assisted the prosecution during jury selection, these highlighted venire lists were circulated in the district attorney's office during jury selection. That allowed "everybody in the office"--approximately "10 to 12 people," including "[s]ecretaries, investigators, [and] district attorneys"--to look at them, share information, and contribute thoughts on whether the prosecution should strike a particular juror. Pl. Exh. 1, 2 Record 190, 219 (Lundy deposition) (hereinafter Tr.). The documents, Lundy testified, were returned to Lanier before jury selection. Id., at 220. (2) A draft of an affidavit that had been prepared by Lundy "at Lanier's request" for submission to the state trial court in response to Foster's motion for a new trial. Id., at 203. The typed draft detailed Lundy's views on ten black prospective jurors, stating "[m]y evaluation of the jurors are a[s] follows." App. 343. Under the name of one of those jurors, Lundy had written:"If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. . . . Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a black juror I recommend that [this juror] be one of the jurors." Id., at 345 (paragraph break omitted).That text had been crossed out by hand; the version of the affidavit filed with the trial court did not contain the crossed-out language. See id., at 127-129. Lundy testified that he "guess[ed]" the redactions had been done by Lanier. Tr. 203. (3) Three handwritten notes on black prospective jurors Eddie Hood, Louise Wilson, and Corrie Hinds. Annotations denoted those individuals as "B#1," "B#2," and "B#3," respectively. App. 295-297. Lundy testified that these were examples of the type of "notes that the team — the State would take down during voir dire to help select the jury in Mr. Foster's case." Tr. 208-210. (4) A typed list of the qualified jurors remaining after voir dire. App. 287-290. It included "Ns" next to ten jurors' names, which Lundy told the state habeas court "signif[ied] the ten jurors that the State had strikes for during jury selection." Tr. 211. Such an "N" appeared alongside the names of all five qualified black prospective jurors. See App. 287-290. The file also included a handwritten version of the same list, with the same markings. Id., at 299-300; see Tr. 212. Lundy testified that he was unsure who had prepared or marked the two lists. (5) A handwritten document titled "definite NO's," listing six names. The first five were those of the five qualified black prospective jurors. App. 301. The State concedes that either Lanier or Pullen compiled the list, which Lundy testified was "used for preparation in jury selection." Tr. 215; Tr. of Oral Arg. 45. (6) A handwritten document titled "Church of Christ." A notation on the document read: "NO. No Black Church." App. 302. (7) The questionnaires that had been completed by several of the black prospective jurors. On each one, the juror's response indicating his or her race had been circled. Id., at 311, 317, 323, 329, 334. In response to the admission of this evidence, the State introduced short affidavits from Lanier and Pullen. Lanier's affidavit stated:"I did not make any of the highlighted marks on the jury venire list. It was common practice in the office to highlight in yellow those jurors who had prior case experience. I did not instruct anyone to make the green highlighted marks. I reaffirm my testimony made during the motion for new trial hearing as to how I used my peremptory jury strikes and the basis and reasons for those strikes." Id., at 169 (paragraph numeral omitted). Pullen's affidavit averred:"I did not make any of the highlighted marks on the jury venire list, and I did not instruct anyone else to make the highlighted marks. I did not rely on the highlighted jury venire list in making my decision on how to use my peremptory strikes." Id., at 170-171 (paragraph numeral omitted).Neither affidavit provided further explanation of the documents, and neither Lanier nor Pullen testified in the habeas proceeding. After considering the evidence, the state habeas court denied relief. The court first stated that, "[a]s a preliminary matter," Foster's Batson claim was "not reviewable based on the doctrine of res judicata" because it had been "raised and litigated adversely to [Foster] on his direct appeal to the Georgia Supreme Court." App. 175. The court nonetheless announced that it would "mak[e] findings of fact and conclusions of law" on that claim. Id., at 191. Based on what it referred to as a "Batson . . . analysis," the court concluded that Foster's "renewed Batson claim is without merit," because he had "fail[ed] to demonstrate purposeful discrimination." Id., at 192, 195, 196. The Georgia Supreme Court denied Foster the "Certificate of Probable Cause" necessary under state law for him to pursue an appeal, determining that his claim had no "arguable merit." Id., at 246; see Ga. Code Ann. §9-14-52 (2014); Ga. Sup. Ct. Rule 36 (2014). We granted certiorari. 575 U. S. ___ (2015).II Before turning to the merits of Foster's Batson claim, we address a threshold issue. Neither party contests our jurisdiction to review Foster's claims, but we "have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). This Court lacks jurisdiction to entertain a federal claim on review of a state court judgment "if that judgment rests on a state law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U. S. 255, 260 (1989). The state habeas court noted that Foster's Batson claim was "not reviewable based on the doctrine of res judicata" under Georgia law. App. 175. The Georgia Supreme Court's unelaborated order on review provides no reasoning for its decision.1 That raises the question whether the Georgia Supreme Court's order — the judgment from which Foster sought certiorari2 — rests on an adequate and independent state law ground so as to preclude our jurisdiction over Foster's federal claim. We conclude that it does not. When application of a state law bar "depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded." Ake v. Oklahoma, 470 U. S. 68, 75 (1985); see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984). In this case, the Georgia habeas court's analysis in the section of its opinion labeled "Batson claim" proceeded as follows:"The [State] argues that this claim is not reviewable due to the doctrine of res judicata. However, because [Foster] claims that additional evidence allegedly supporting this ground was discovered subsequent to the Georgia Supreme Court's ruling [on direct appeal], this court will review the Batson claim as to whether [Foster] has shown any change in the facts sufficient to overcome the res judicata bar." App. 192. To determine whether Foster had alleged a sufficient "change in the facts," the habeas court engaged in four pages of what it termed a "Batson . . . analysis," in which it evaluated the original trial record and habeas record, including the newly uncovered prosecution file. Id., at 192-196. Ultimately, that court concluded that Foster's "renewed Batson claim is without merit." Id., at 196 (emphasis added). In light of the foregoing, it is apparent that the state habeas court's application of res judicata to Foster's Batson claim was not independent of the merits of his federal constitutional challenge.3 That court's invocation of res judicata therefore poses no impediment to our review of Foster's Batson claim. See Ake, 470 U. S., at 75.4IIIA The "Constitution forbids striking even a single prospective juror for a discriminatory purpose." Snyder v. Louisiana, 552 U. S. 472, 478 (2008) (internal quotation marks omitted). Our decision in Batson v. Kentucky, 476 U. S. 79, provides a three-step process for determining when a strike is discriminatory:"First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Snyder, 552 U. S., at 476-477 (internal quotation marks and brackets omitted). Both parties agree that Foster has demonstrated a prima facie case, and that the prosecutors have offered race-neutral reasons for their strikes. We therefore address only Batson's third step. That step turns on factual determinations, and, "in the absence of exceptional circumstances," we defer to state court factual findings unless we conclude that they are clearly erroneous. Synder, 552 U. S., at 477. Before reviewing the factual record in this case, a brief word is in order regarding the contents of the prosecution's file that Foster obtained through his Georgia Open Records Act requests. Pursuant to those requests, Foster received a "certif[ied] . . . true and correct copy of 103 pages of the State's case file" from his 1987 trial. App. 247. The State argues that "because [Foster] did not call either of the prosecutors to the stand" to testify in his state habeas proceedings, "he can only speculate as to the meaning of various markings and writings" on those pages, "the author of many of them, and whether the two prosecutors at trial (District Attorney Lanier and Assistant District Attorney Pullen) even saw many of them." Brief for Respondent 20. For these reasons, the State argues, "none of the specific pieces of new evidence [found in the file] shows an intent to discriminate." Ibid. (capitalization omitted). For his part, Foster argues that "[t]here is no question that the prosecutors used the lists and notes, which came from the prosecution's file and were certified as such," and therefore the "source of the lists and notes, their timing, and their purpose is hardly 'unknown' or based on 'conjecture.' " Reply Brief 4-5 (quoting Brief for Respondent 27-28). The State concedes that the prosecutors themselves authored some documents, see, e.g., Tr. of Oral Arg. 45 (admitting that one of the two prosecutors must have written the list titled "definite NO's"), and Lundy's testimony strongly suggests that the prosecutors viewed others, see, e.g., Tr. 220 (noting that the highlighted jury venire lists were returned to Lanier prior to jury selection). There are, however, genuine questions that remain about the provenance of other documents. Nothing in the record, for example, identifies the author of the notes that listed three black prospective jurors as "B#1," "B#2," and "B#3." Such notes, then, are not necessarily attributable directly to the prosecutors themselves. The state habeas court was cognizant of those limitations, but nevertheless admitted the file into evidence, reserving "a determination as to what weight the Court is going to put on any of [them]" in light of the objections urged by the State. 1 Record 20. We agree with that approach. Despite questions about the background of particular notes, we cannot accept the State's invitation to blind ourselves to their existence. We have "made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted." Snyder, 552 U. S., at 478. As we have said in a related context, "[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial . . . evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). At a minimum, we are comfortable that all documents in the file were authored by someone in the district attorney's office. Any uncertainties concerning the documents are pertinent only as potential limits on their probative value.B Foster centers his Batson claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. We turn first to Marilyn Garrett. According to Lanier, on the morning that the State was to use its strikes he had not yet made up his mind to remove Garrett. Rather, he decided to strike her only after learning that he would not need to use a strike on another black prospective juror, Shirley Powell, who was excused for cause that morning. Ultimately, Lanier did strike Garrett. In justifying that strike to the trial court, he articulated a laundry list of reasons. Specifically, Lanier objected to Garrett because she: (1) worked with disadvantaged youth in her job as a teacher's aide; (2) kept looking at the ground during voir dire; (3) gave short and curt answers during voir dire; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failed to disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service. See App. 55-57 (pretrial hearing); id., at 93-98, 105, 108, 110-112 (new trial hearing); Record in No. 45609 (Ga. 1988), pp. 439-440 (hereinafter Trial Record) (brief in opposition to new trial). The trial court accepted Lanier's justifications, concluding that "[i]n the totality of circumstances," there was "no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons" for the strike. App. 143. On their face, Lanier's justifications for the strike seem reasonable enough. Our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact. Lanier's misrepresentations to the trial court began with an elaborate explanation of how he ultimately came to strike Garrett: "[T]he prosecution considered this juror [to have] the most potential to choose from out of the four remaining blacks in the 42 [member] panel venire. However, a system of events took place on the morning of jury selection that caused the excusal of this juror. The [S]tate had, in his jury notes, listed this juror as questionable. The four negative challenges were allocated for Hardge, Hood, Turner and Powell. . . . But on the morning of jury selection, Juror Powell was excused for cause with no objections by [d]efense counsel. She was replaced by Juror Cadle [who] was acceptable to the State. This left the State with an additional strike it had not anticipated or allocated. Consequently, the State had to choose between [white] Juror Blackmon or Juror Garrett, the only two questionable jurors the State had left on the list." Trial Record 438-440 (brief in opposition to new trial) (emphasis added and citations omitted). Lanier then offered an extensive list of reasons for striking Garrett and explained that "[t]hese factors, with no reference to race, were considered by the prosecutor in this particular case to result in a juror less desirable from the prosecutor's viewpoint than Juror Blackmon." Id., at 441 (emphasis deleted). Lanier then compared Blackmon to Garrett. In contrast to Garrett, Juror Blackmon"was 46 years old, married 13 years to her husband who works at GE, buying her own home and [was recommended by a third party to] this prosecutor. She was no longer employed at Northwest Georgia Regional Hospital and she attended Catholic church on an irregular basis. She did not hesitate when answering the questions concerning the death penalty, had good eye contact with the prosecutor and gave good answers on the insanity issue. She was perceived by the prosecutor as having a stable home environment, of the right age and no association with any disadvantaged youth organizations." Ibid.Lanier concluded that "the chances of [Blackmon] returning a death sentence were greater when all these factors were considered than Juror Garrett. Consequently, Juror Garrett was excused." Ibid. The trial court accepted this explanation in denying Foster's motion for a new trial. See App. 142-143. But the predicate for the State's account — that Garrett was "listed" by the prosecution as "questionable," making that strike a last-minute race-neutral decision — was false. During jury selection, the State went first. As a consequence, the defense could accept any prospective juror not struck by the State without any further opportunity for the State to use a strike against that prospective juror. Accordingly, the State had to "pretty well select the ten specific people [it] intend[ed] to strike" in advance. Id., at 83 (pretrial hearing); accord, ibid. ("[T]he ten people that we felt very uncomfortable with, we have to know up front." (Lanier testimony)). The record evidence shows that Garrett was one of those "ten specific people." That much is evident from the "definite NO's" list in the prosecution's file. Garrett's name appeared on that list, which the State concedes was written by one of the prosecutors. Tr. of Oral Arg. 45. That list belies Lanier's assertion that the State considered allowing Garrett to serve. The title of the list meant what it said: Garrett was a "definite NO." App. 301 (emphasis added). The State from the outset was intent on ensuring that none of the jurors on that list would serve. The first five names on the "definite NO's" list were Eddie Hood, Evelyn Hardge, Shirley Powell, Marilyn Garrett, and Mary Turner. All were black. The State struck each one except Powell (who, as discussed, was excused for cause at the last minute — though the prosecution informed the trial court that the "State was not, under any circumstances, going to take [Powell]," Trial Record 439 (brief in opposition to new trial)). Only in the number six position did a white prospective juror appear, and she had informed the court during voir dire that she could not "say positively" that she could impose the death penalty even if the evidence warranted it. 6 Tr. in No. 86-2218-2 (Super. Ct. Floyd Cty., Ga., 1987), p. 1152 (hereinafter Trial Transcript); see also id., at 1153-1158. In short, contrary to the prosecution's submissions, the State's resolve to strike Garrett was never in doubt. See also App. 290 ("N" appears next to Garrett's name on juror list); id., at 300 (same). The State attempts to explain away the contradiction between the "definite NO's" list and Lanier's statements to the trial court as an example of a prosecutor merely "misspeak[ing]." Brief for Respondent 51. But this was not some off-the-cuff remark; it was an intricate story expounded by the prosecution in writing, laid out over three single-spaced pages in a brief filed with the trial court. Moreover, several of Lanier's reasons for why he chose Garrett over Blackmon are similarly contradicted by the record. Lanier told the court, for example, that he struck Garrett because "the defense did not ask her questions about" pertinent trial issues such as her thoughts on "insanity" or "alcohol," or "much questions on publicity." App. 56 (pretrial hearing). But the trial transcripts reveal that the defense asked her several questions on all three topics. See 5 Trial Transcript 955-956 (two questions on insanity and one on mental illness); ibid. (four questions on alcohol); id., at 956-957 (five questions on publicity). Still other explanations given by the prosecution, while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the trial court that he struck Garrett because she was divorced. App. 56 (pre-trial hearing). But he declined to strike three out of the four prospective white jurors who were also divorced. See Juror Questionnaire in No. 86-2218-2 (Super. Ct. Floyd Cty., Ga., 1987) (hereinafter Juror Questionnaire), for Juror No. 23, p. 2 (juror Coultas, divorced); id., No. 33, p. 2 (juror Cochran, divorced); id., No. 107, p. 2 (juror Hatch, divorced); App. 23-24, 31 (State accepting jurors Coultas, Cochran, and Hatch). Additionally, Lanier claimed that he struck Garrett because she was too young, and the "State was looking for older jurors that would not easily identify with the defendant." Trial Record 439; see App. 55 (pretrial hearing). Yet Garrett was 34, and the State declined to strike eight white prospective jurors under the age of 36. See Trial Record 439; Juror Questionnaire No. 4, p. 1; id., No. 10, p. 1; id., No. 23, p. 1; id., No. 48, p. 1; id., No. 70, p. 1; id., No. 71, p. 1; id., No. 92, p. 1; id., No. 106, p. 1; see App. 22-31. Two of those white jurors served on the jury; one of those two was only 21 years old. See id., at 35. Lanier also explained to the trial court that he struck Garrett because he "felt that she was less than truthful" in her answers in voir dire. Id., at 108 (new trial hearing). Specifically, the State pointed the trial court to the following exchange:"[Court]: Are you familiar with the neighborhood where [the victim] lived, North Rome?"[Garrett]: No." 5 Trial Transcript 950-951. Lanier, in explaining the strike, told the trial court that in apparent contradiction to that exchange (which represented the only time that Garrett was asked about the topic during voir dire), he had "noted that [Garrett] attended Main High School, which is only two blocks from where [the victim] lived and certainly in the neighborhood. She denied any knowledge of the area." Trial Record 439 (brief in opposition to new trial). We have no quarrel with the State's general assertion that it "could not trust someone who gave materially untruthful answers on voir dire." Foster, 258 Ga., at 739, 374 S. E. 2d, at 192. But even this otherwise legitimate reason is difficult to credit in light of the State's acceptance of (white) juror Duncan. Duncan gave practically the same answer as Garrett did during voir dire:"[Court]: Are you familiar with the neighborhood in which [the victim] live[d]?"[Duncan]: No. I live in Atteiram Heights, but it's not — I'm not familiar with up there, you know." 5 Trial Transcript 959.But, as Lanier was aware, Duncan's "residence [was] less than a half a mile from the murder scene" and her workplace was "located less than 250 yards" away. Trial Record 430 (brief in opposition to new trial). In sum, in evaluating the strike of Garrett, we are not faced with a single isolated misrepresentation.C We turn next to the strike of Hood. According to Lanier, Hood "was exactly what [the State] was looking for in terms of age, between forty and fifty, good employment and married." App. 44 (pretrial hearing). The prosecution nonetheless struck Hood, giving eight reasons for doing so. Hood: (1) had a son who was the same age as the defendant and who had previously been convicted of a crime; (2) had a wife who worked in food service at the local mental health institution; (3) had experienced food poisoning during voir dire; (4) was slow in responding to death penalty questions; (5) was a member of the Church of Christ; (6) had a brother who counseled drug offenders; (7) was not asked enough questions by the defense during voir dire; and (8) asked to be excused from jury service. See id., at 44-47; id., at 86, 105, 110-111 (new trial hearing); Trial Record 433-435 (brief in opposition to new trial). An examination of the record, however, convinces us that many of these justifications cannot be credited. As an initial matter, the prosecution's principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual. In response to Foster's pre-trial Batson challenge, District Attorney Lanier noted all eight reasons, but explained:"The only thing I was concerned about, and I will state it for the record. He has an eighteen year old son which is about the same age as the defendant. "In my experience prosecuting over twenty-five murder cases . . . individuals having the same son as [a] defendant who is charged with murder [have] serious reservations and are more sympathetic and lean toward that particular person. "It is ironic that his son, . . . Darrell Hood[,] has been sentenced . . . by the Court here, to theft by taking on April 4th, 1982. . . . [T]heft by taking is basi-cally the same thing that this defendant is charged with." App. 44-45 (pretrial hearing; emphasis added). But by the time of Foster's subsequent motion for a new trial, Lanier's focus had shifted. He still noted the similarities between Hood's son and Foster, see id., at 105 (new trial hearing), but that was no longer the key reason behind the strike. Lanier instead told the court that his paramount concern was Hood's membership in the Church of Christ: "The Church of Christ people, while they may not take a formal stand against the death penalty, they are very, very reluctant to vote for the death penalty." Id., at 84 (new trial hearing); accord, Trial Record 434-435 ("It is the opinion of this prosecutor that in a death penalty case, Church of Christ affiliates are reluctant to return a verdict of death." (brief in opposition to new trial)). Hood's religion, Lanier now explained, was the most important factor behind the strike: "I evaluated the whole Eddie Hood. . . . And the bottom line on Eddie Hood is the Church of Christ affiliation." App. 110-111 (new trial hearing; emphasis added). Of course it is possible that Lanier simply misspoke in one of the two proceedings. But even if that were so, we would expect at least one of the two purportedly principal justifications for the strike to withstand closer scrutiny. Neither does. Take Hood's son. If Darrell Hood's age was the issue, why did the State accept (white) juror Billy Graves, who had a 17-year-old son? Juror Questionnaire No. 31, p. 3; see App. 24. And why did the State accept (white) juror Martha Duncan, even though she had a 20-year-old son? Juror Questionnaire No. 88, p. 3; see App. 30. The comparison between Hood and Graves is particu-larly salient. When the prosecution asked Hood if Foster's age would be a factor for him in sentencing, he answered "None whatsoever." Trial Transcript 280. Graves, on the other hand, answered the same question "probably so." Id., at 446. Yet the State struck Hood and accepted Graves. The State responds that Duncan and Graves were not similar to Hood because Hood's son had been convicted of theft, while Graves's and Duncan's sons had not. See Brief for Respondent 34-35; see also App. 135-136 ("While the defense asserts that the state used different standards for white jurors, insofar as many of them had children near the age of the Defendant, the Court believes that [Darrell Hood's] conviction is a distinction that makes the difference." (trial court opinion denying new trial)). Lanier had described Darrell Hood's conviction to the trial court as being for "basically the same thing that this defendant is charged with." Id., at 45 (pretrial hearing). Nonsense. Hood's son had received a 12-month suspended sentence for stealing hubcaps from a car in a mall parking lot five years earlier. Trial Record 446. Foster was charged with capital murder of a 79-year-old widow after a brutal sexual assault. The "implausible" and "fantastic" assertion that the two had been charged with "basically the same thing" supports our conclusion that the focus on Hood's son can only be regarded as pretextual. Miller-El v. Cockrell, 537 U. S. 322, 339 (2003); see also ibid. ("Credibility can be measured by, among other factors, . . . how reasonable, or how improbable, the [State's] explanations are."). The prosecution's second principal justification for striking Hood — his affiliation with the Church of Christ, and that church's alleged teachings on the death penalty — fares no better. Hood asserted no fewer than four times during voir dire that he could impose the death penalty.5 A prosecutor is entitled to disbelieve a juror's voir dire answers, of course. But the record persuades us that Hood's race, and not his religious affiliation, was Lanier's true motivation. The first indication to that effect is Lanier's mischaracterization of the record. On multiple occasions, Lanier asserted to the trial court that three white prospective jurors who were members of the Church of Christ had been struck for cause due to their opposition to the death penalty. See App. 46 ("[Hood's] religious preference is Church of Christ. There have been [three] other jurors that have been excused for cause by agreement that belong to the Church of Christ, Juror No. 35, 53, and 78." (pretrial hearing)); id., at 114 ("Three out of four jurors who professed to be members of the Church of Christ, went off for [cause related to opposition to the death penalty]." (new trial hearing)); Trial Record 435 ("Church of Christ jurors Terry (#35), Green (#53), and Waters (#78) [were] excused for cause due to feeling[s] against the death penalty." (brief in opposition to new trial)). That was not true. One of those prospective jurors was excused before even being questioned during voir dire because she was five-and-a-half months pregnant. 5 Trial Transcript 893. Another was excused by the agreement of both parties because her answers on the death penalty made it difficult to ascertain her precise views on capital punishment. See Brief for Respondent 39 ("[I]t was entirely unclear if [this juror] understood any of the trial court's questions and her answers are equivocal at best."). And the judge found cause to dismiss the third because she had already formed an opinion about Foster's guilt. See 3 Trial Transcript 558 ("[Court]: And you have made up your mind already as to the guilt of the accused? A: Yes, sir. [Court]: I think that's cause."). The prosecution's file fortifies our conclusion that any reliance on Hood's religion was pretextual. The file contains a handwritten document titled "Church of Christ." The document notes that the church "doesn't take a stand on [the] Death Penalty," and that the issue is "left for each individual member." App. 302. The document then states: "NO. NO Black Church." Ibid. The State tries to downplay the significance of this document by emphasizing that the document's author is unknown. That uncertainty is pertinent. But we think the document is nonetheless entitled to significant weight, especially given that it is consistent with our serious doubts about the prosecution's account of the strike. Many of the State's secondary justifications similarly come undone when subjected to scrutiny. Lanier told the trial court that Hood "appeared to be confused and slow in responding to questions concerning his views on the death penalty." Trial Record 434 (brief in opposition to new trial). As previously noted, however, Hood unequivocally voiced his willingness to impose the death penalty, and a white juror who showed similar confusion served on the jury. Compare 5 Trial Transcript 1100-1101 (white juror Huffman's answers) with 2 id., at 269-278 (Hood's answers); see App. 35. According to the record, such confusion was not uncommon. See id., at 138 ("The Court notes that [Hood's] particular confusion about the death penalty questions was not unusual."); accord, 5 Trial Transcript 994 ("[Court]: I think these questions should be reworded. I haven't had a juror yet that understood what that meant."); id., at 1101-1102 ("[Court]: I still say that these questions need changing overnight, because one out of a hundred jurors, I think is about all that's gone along with knowing what [you're asking]."). Lanier also stated that he struck Hood because Hood's wife worked at Northwest Regional Hospital as a food services supervisor. App. 45 (pretrial hearing). That hospital, Lanier explained, "deals a lot with mentally disturbed, mentally ill people," and so people associated with it tend "to be more sympathetic to the underdog." Ibid. But Lanier expressed no such concerns about white juror Blackmon, who had worked at the same hospital. Blackmon, as noted, served on the jury. Lanier additionally stated that he struck Hood because the defense "didn't ask [Hood] any question[s] about the age of the defendant," "his feelings about criminal responsibility involved in insanity," or "publicity." Id., at 47. Yet again, the trial transcripts clearly indicate the contrary. See 2 Trial Transcript 280 ("Q: Is age a factor to you in trying to determine whether or not a defendant should receive a life sentence or a death sentence? A: None whatsoever."); ibid. ("Q: Do you have any feeling about the insanity defense? A: Do I have any opinion about that? I have not formed any opinion about that."); id., at 281 ("Q: Okay. The publicity that you have heard, has that pub-licity affected your ability to sit as a juror in this case and be fair and impartial to the defendant? A: No, it has no effect on me.").D As we explained in Miller-El v. Dretke, "[i]f a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination." 545 U. S. 231, 241 (2005). With respect to both Garrett and Hood, such evidence is compelling. But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution's file. Considering all of the circumstantial evidence that "bear[s] upon the issue of racial animosity," we are left with the firm conviction that the strikes of Garrett and Hood were "motivated in substantial part by discriminatory intent." Snyder, 552 U. S., at 478, 485.6IV Throughout all stages of this litigation, the State has strenuously objected that "race [was] not a factor" in its jury selection strategy. App. 41 (pretrial hearing); but see id., at 120 (Lanier testifying that the strikes were "based on many factors and not purely on race." (emphasis added) (new trial hearing)). Indeed, at times the State has been downright indignant. See Trial Record 444 ("The Defenses's [sic] misapplication of the law and erroneous distortion of the facts are an attempt to discredit the pro-secutor. . . . The State and this community demand an apology." (brief in opposition to new trial)). The contents of the prosecution's file, however, plainly belie the State's claim that it exercised its strikes in a "color-blind" manner. App. 41, 60 (pretrial hearing). The sheer number of references to race in that file is arresting. The State, however, claims that things are not quite as bad as they seem. The focus on black prospective jurors, it contends, does not indicate any attempt to exclude them from the jury. It instead reflects an effort to ensure that the State was "thoughtful and non-discriminatory in [its] consideration of black prospective jurors [and] to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual." Brief for Respondent 6. Batson, after all, had come down only months before Foster's trial. The prosecutors, according to the State, were uncertain what sort of showing might be demanded of them and wanted to be prepared. This argument falls flat. To begin, it "reeks of afterthought," Miller-El, 545 U. S., at 246, having never before been made in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the State's brief in opposition to Foster's petition for certiorari. In addition, the focus on race in the prosecution's file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. The State argues that it "was actively seeking a black juror." Brief for Respondent 12; see also App. 99 (new trial hearing). But this claim is not credible. An "N" appeared next to each of the black prospective jurors' names on the jury venire list. See, e.g., id., at 253. An "N" was also noted next to the name of each black prospective juror on the list of the 42 qualified prospective jurors; each of those names also appeared on the "definite NO's" list. See id., 299-301. And a draft affidavit from the prosecution's investigator stated his view that "[i]f it comes down to having to pick one of the black jurors, [Marilyn] Garrett, might be okay." Id., at 345 (emphasis added); see also ibid. (recommending Garrett "if we had to pick a black juror" (emphasis added)). Such references are inconsistent with attempts to "actively see[k]" a black juror. The State's new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows. The order of the Georgia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.Alito, J., concurring in judgment 578 U. S. ____ (2016)No. 14-8349TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE CHATMAN, WARDENon writ of certiorari to the supreme court of georgia[May 23, 2016] Justice Alito, concurring in the judgment. I agree with the Court that the decision of the Supreme Court of Georgia cannot be affirmed and that the case must be remanded. I write separately to explain my understanding of the role of state law in the proceedings that must be held on remand.I As the Court recounts, in August 1986, Queen Madge White, a 79-year-old retired schoolteacher, was sexually assaulted and brutally murdered in her home in Rome, Georgia. Her home was ransacked, and various household items were stolen. Foster v. State, 258 Ga. 736, 374 S. E. 2d 188 (1988). About a month after the murder, police officers were called to respond to a local disturbance. The complainant, Lisa Stubbs, told them that her boyfriend, petitioner Timothy Foster, had killed White and had distributed the goods stolen from White's home to Stubbs and family members. Tr. 1719-1723. Officers arrested Foster, who confessed to the murder and robbery, 258 Ga., at 736, 374 S. E. 2d, at 190, and the police recovered some of the stolen goods. Foster was put on trial for White's murder, convicted, and sentenced to death. Before, during, and after his trial, Foster argued that the prosecution violated his rights under this Court's then-recent decision in Batson v. Kentucky, 476 U. S. 79 (1986), by peremptorily challenging all the prospective jurors who were black. After the Georgia Supreme Court rejected Foster's Batson argument on direct appeal, he filed a petition for a writ of certiorari in this Court, but his petition did not raise a Batson claim,1 and the petition was denied. Foster v. Georgia, 490 U. S. 1085 (1989). In July 1989, Foster filed a state habeas petition in the Superior Court of Butts County, Georgia. For the next 10 years, most of Foster's claims (including his Batson claim) were held in abeyance while the Georgia courts adjudicated Foster's claim that he is "mentally retarded" and thus cannot be executed under Georgia law. Zant v. Foster, 261 Ga. 450, 406 S. E. 2d 74 (1991). After extensive court proceedings, including two visits to the State Supreme Court,2 additional petitions for certiorari to this Court,3 and a jury trial on the issue of intellectual disability, Foster was denied relief on that claim. He then amended his habeas petition, and the Superior Court considered the many other claims asserted in his petition, including his Batson claim. In support of that claim, Foster offered new evidence, namely, the prosecution's jury selection notes, which he had obtained through a Georgia open-records request. These notes showed that someone had highlighted the names of black jurors and had written the letter "B" next to their names. The Superior Court issued a written decision in which it evaluated Foster's habeas claims. The opinion began by noting that many of his claims were barred by res judicata. The opinion stated: "[T]his court notes . . . that the following claims are not reviewable based on the doctrine of res judicata, as the claims were raised and litigated adversely to the petitioner on his direct appeal to the Georgia Supreme Court." App. 175. Included in the list of barred claims was "Petitioner['s] alleg[ation] that the State used peremptory challenges in a racially discriminatory manner in violation of Batson." Id., at 175-176. Later in its opinion, the Superior Court again referred to the Batson claim and wrote as follows:"The Respondent argues that this claim is not reviewable due to the doctrine of res judicata. However, because the Petitioner claims that additional evidence allegedly supporting this ground was discovered subsequent to the Georgia Supreme Court's ruling in Foster v. State, 258 Ga. 736 (1988) [the decision affirming Foster's conviction on direct appeal], this court will review the Batson claim as to whether Petitioner has shown any change in the facts sufficient to overcome the res judicata bar." Id., at 192.The court then reviewed the evidence and concluded that it "[could not] find that the highlighting of the names of black jurors and the notation of their race can serve to override this previous consideration [on direct appeal]." Id., at 193. Because "all jurors in this case, regardless of race, were thoroughly investigated and considered before the State exercised its peremptory challenges," the court found that "Petitioner fail[ed] to demonstrate purposeful discrimination on the basis that the race of prospective jurors was either circled, highlighted or otherwise noted on various lists." Id., at 195. Thus, the court held that the Batson claim was "without merit." App. 196. Foster subsequently sought review of the Superior Court's decision in the Georgia Supreme Court, but that court refused to issue a certificate of probable cause (CPC) to appeal. In its entirety, the State Supreme Court order states: "Upon consideration of the Application for Certificate of Probable Cause to appeal the denial of habeas corpus, it is ordered that it be hereby denied. All the Justices concur, except Benham, J., who dissents." Id., at 246. Foster sought review of this decision, and this Court granted certiorari to review the decision of the Georgia Supreme Court. 575 U. S. ___ (2015).II The decision of the Georgia Supreme Court was a decision on the merits of Foster's Batson claim, as presented in his state habeas petition. See Ga. Sup. Ct. Rule 36 (2016) (a CPC to appeal a final judgment in a habeas corpus case involving a criminal conviction "will be issued where there is arguable merit"); Hittson v. Warden, 759 F. 3d 1210, 1232 (CA11 2014) (The Georgia Supreme Court's standard for denying a CPC "clearly constitutes an adjudication on the merits"). Thus, what the Georgia Supreme Court held was that Foster's Batson claim, as presented in his state habeas petition, lacked arguable merit. That holding was likely based at least in part on state law. As noted, the Superior Court quite clearly held that Foster's Batson claim was barred by res judicata. That conclusion, to be sure, was not entirely divorced from the merits of his federal constitutional claim, since the court went on to discuss the evidence advanced by petitioner in support of his argument that the prosecution's strikes of black members of the venire were based on race. Rather, it appears that the Superior Court understood state law to permit Foster to obtain reconsideration of his previously rejected Batson claim only if he was able to show that a "change in the facts" was "sufficient to overcome the res judicata bar." App. 192. In concluding that Foster's renewed Batson claim was required to meet a heightened standard, the Superior Court appears to have been following established Georgia law. Some Georgia cases seem to stand for the proposition that the bar is absolute, at least in some circumstances. See, e.g., Roulain v. Martin, 266 Ga. 353, 466 S. E. 2d 837, 839 (1996) ("Since this issue was raised and resolved in Martin's direct appeal, it should not have been readdressed by the habeas court"); Davis v. Thomas, 261 Ga. 687, 689, 410 S. E. 2d 110, 112 (1991) ("This issue was raised on direct appeal, and this court determined that it had no merit. Davis recognizes the principle that one who had an issue decided adversely to him on direct appeal is precluded from relitigating that issue on habeas corpus"); Gunter v. Hickman, 256 Ga. 315, 316, 348 S. E. 2d 644, 645 (1986) ("This issue was actually litigated, i.e., raised and decided, in the appellant's direct appeal . . . . For this reason, the issue cannot be reasserted in habeas-corpus proceedings"); Elrod v. Ault, 231 Ga. 750, 204 S. E. 2d 176 (1974) ("After an appellate review the same issues will not be reviewed on habeas corpus"). Other decisions, however, allow a defendant to overcome res judicata if he can produce newly discovered evidence that was not "reasonably available" to him on direct review. Gibson v. Head, 282 Ga. 156, 159, 646 S. E. 2d 257, 260 (2007); see also Gibson v. Ricketts, 244 Ga. 482, 483, 260 S. E. 2d 877, 878 (1979).4 In restricting the relitigation of previously rejected claims, Georgia is not alone. "[W]e have long and consistently affirmed that a collateral challenge may not do service for an appeal." United States v. Frady, 456 U. S. 152, 165 (1982). Accordingly, at least as a general rule, federal prisoners may not use a motion under 28 U. S. C. §2255 to relitigate a claim that was previously rejected on direct appeal. See, e.g., Reed v. Farley, 512 U. S. 339, 358 (1994) (Scalia, J., concurring in part and concurring in judgment) ("[C]laims will ordinarily not be entertained under §2255 that have already been rejected on direct review"); Withrow v. Williams, 507 U. S. 680, 721 (1993) (Scalia, J., concurring in part and dissenting in part) ("[A]bsent countervailing considerations, district courts may refuse to reach the merits of a constitutional claim previously raised and rejected on direct appeal"); United States v. Lee, 715 F. 3d 215, 224 (CA8 2013); Rozier v. United States, 701 F. 3d 681, 684 (CA11 2012); United States v. Roane, 378 F. 3d 382, 396, n. 7 (CA4 2004); United States v. Webster, 392 F. 3d 787, 791 (CA5 2004); White v. United States, 371 F. 3d 900, 902 (CA7 2004); United States v. Jones, 918 F. 2d 9, 10-11 (CA2 1990); United States v. Prichard, 875 F. 2d 789, 790-791 (CA10 1989). Cf. Davis v. United States, 417 U. S. 333, 342 (1974). As we have said, "[i]t has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment. The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice." United States v. Addonizio, 442 U. S. 178, 184 (1979) (footnote omitted). In accordance with this principle, federal law provides that a state prisoner may not relitigate a claim that was rejected in a prior federal habeas petition. See 28 U. S. C. §§2244(b)(1)-(3). And even when a state prisoner's second or successive federal habeas petition asserts a new federal constitutional claim based on what is asserted to be new evidence, the claim must be dismissed unless a very demanding test is met. See §2244(b)(2)(B) ("[T]he factual predicate for the claim could not have been discovered previously through the exercise of due diligence"; and the facts must "be sufficient to establish by clear and convincing evidence that . . . no reasonable factfinder would have found the applicant guilty"). "[T]he principle of finality" is "essential to the operation of our criminal justice system." Teague v. Lane, 489 U. S. 288, 309 (1989) (plurality opinion). Thus, once a criminal conviction becomes final — as Foster's did 30 years ago — state courts need not remain open indefinitely to relitigate claims related to that conviction which were raised and decided on direct review. States are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated. To the extent that the decision of the Georgia Supreme Court was based on a state rule restricting the relitigation of previously rejected claims, the decision has a state-law component, and we have no jurisdiction to review a state court's decision on a question of state law. See 28 U. S. C. §1257(a). This Court, no less than every other federal court, has "an independent obligation to ensure that [we] do not exceed the scope of [our] jurisdiction, and therefore [we] must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson v. Shinseki, 562 U. S. 428, 434 (2011).III "This Court long has held that it will not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision," Harris v. Reed, 489 U. S. 255, 260 (1989), and like the Court (and both petitioner and respondent) I agree that we cannot conclude from the brief order issued by the Supreme Court of Georgia that its decision was based wholly on state law. It is entirely possible that the State Supreme Court reached a conclusion about the effect of the state res judicata bar based in part on as assessment of the strength of Foster's Batson claim or the extent to which the new evidence bolstered that claim. And if that is what the State Supreme Court held, the rule that the court applied was an amalgam of state and federal law. By the same token, however, the state-law res judicata rule applied by the Superior Court is clearly not like the rule in Ake v. Oklahoma, 470 U. S. 68 (1985), which appears to have been entirely dependent on federal law. In Ake, a prisoner argued that due process entitled him to obtain the services of a psychiatrist in order to prove that he was insane at the time when he committed a murder. The Oklahoma courts concluded that Ake's claim was waived, but the Oklahoma waiver rule essentially made an exception for any case in which there was a violation of a fundamental federal constitutional right. See id., at 74-75 ("The Oklahoma waiver rule does not apply to fundamental trial error," including "federal constitutional errors [that] are 'fundamental' "). Thus, the state waiver rule was entirely dependent on federal law, and this Court therefore held that it had jurisdiction to review the underlying constitutional question — whether Ake was entitled to a psychiatrist. Then, having found a constitutional violation, the Court remanded for a new trial. Id., at 86-87. The res judicata rule applied by the Superior Court in this case is quite different. That court obviously did not think that Georgia law included an Ake-like exception that would permit a defendant to overcome res judicata simply by making the kind of showing of federal constitutional error that would have been sufficient when the claim was first adjudicated. Accordingly, Ake does not mean that we can simply disregard the possibility that the decision under review may have a state-law component. Our cases chart the path that we must follow in a situation like the one present here. When "a state court's interpretation of state law has been influenced by an accompanying interpretation of federal law," the proper course is for this Court to "revie[w] the federal question on which the state-law determination appears to have been premised. If the state court has proceeded on an incorrect perception of federal law, it has been this Court's practice to vacate the judgment of the state court and remand the case so that the court may reconsider the state-law question free of misapprehensions about the scope of federal law." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984). See also S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice 212 (10th ed. 2013). In a situation like the one presented here, the correct approach is for us to decide the question of federal law and then to remand the case to the state court so that it can reassess its decision on the state-law question in light of our decision on the underlying federal issue.5IV I agree with the Court that the totality of the evidence now adduced by Foster is sufficient to make out a Batson violation. On remand, the Georgia Supreme Court is bound to accept that evaluation of the federal question, but whether that conclusion justifies relief under state res judicata law is a matter for that court to decide. Compliance with Batson is essential to ensure that defendants receive a fair trial and to preserve the public confidence upon which our system of criminal justice depends. But it is also important that this Court respect the authority of state courts to structure their systems of postconviction review in a way that promotes the expeditious and definitive disposition of claims of error. Until recently, this Court rarely granted review of state-court decisions in collateral review proceedings, preferring to allow the claims adjudicated in such proceedings to be decided first in federal habeas proceedings. See Lawrence v. Florida, 549 U. S. 327, 335 (2007) ("[T]his Court rarely grants review at this stage of the litigation even when the application for state collateral relief is supported by arguably meritorious federal constitutional claims, choosing instead to wait for federal habeas proceedings" (internal quotation marks omitted)); Kyles v. Whitley, 498 U. S. 931, 932 (1990) (Stevens, J., concurring in denial of stay of execution); Huffman v. Florida, 435 U. S. 1014, 1017-1018 (1978) (Stevens, J., respecting denial of certiorari). When cases reach this Court after habeas review in the lower federal courts, the standards of review set out in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U. S. C. §2254, apply. Recently, this Court has evidenced a predilection for granting review of state-court decisions denying postconviction relief, see, e.g., Wearry v. Cain, 577 U. S. __ (2016) (per curiam). Particularly in light of that trend, it is important that we do not lightly brush aside the States' legitimate interest in structuring their systems of postconviction review in a way that militates against repetitive litigation and endless delay.Thomas, J., dissenting 578 U. S. ____ (2016)No. 14-8349TIMOTHY TYRONE FOSTER, PETITIONER v. BRUCE CHATMAN, WARDENon writ of certiorari to the supreme court of georgia[May 23, 2016] Justice Thomas, dissenting. Thirty years ago, Timothy Foster confessed to murdering Queen Madge White after sexually assaulting her with a bottle of salad dressing. In the decades since, Foster has sought to vacate his conviction and death sentence on the ground that prosecutors violated Batson v. Kentucky, 476 U. S. 79 (1986), when they struck all black prospective jurors before his trial. Time and again, the state courts have rejected that claim. The trial court twice rejected it, and the Supreme Court of Georgia unequivocally rejected it when Foster directly appealed his conviction and sentence. Foster v. State, 258 Ga. 736, 736, n. 1, 738-739, 374 S. E. 2d 188, 190, n. 1, 192 (1988), cert. denied, 490 U. S. 1085 (1989). A state habeas court rejected it in 2013. App. 175-176, 192-196. And most recently, the Supreme Court of Georgia again rejected it as lacking "arguable merit," Ga. Sup. Ct. Rule 36 (2001). See App. 246. Yet, today — nearly three decades removed from voir dire — the Court rules in Foster's favor. It does so without adequately grappling with the possibility that we lack jurisdiction. Moreover, the Court's ruling on the merits, based, in part, on new evidence that Foster procured decades after his conviction, distorts the deferential Batson inquiry. I respectfully dissent.I Federal law authorizes us to review the "judgments or decrees rendered by the highest court of a State in which a decision could be had," 28 U. S. C. §1257(a), but only if such a judgment or decree raises a question of federal law, Michigan v. Long, 463 U. S. 1032, 1038 (1983). The Court today errs by assuming that the Supreme Court of Georgia's one-line order — the "judgmen[t] . . . rendered by the highest court of a State in which a decision could be had," §1257 — raises such a question. See ante, at 7-8. The far more likely explanation for the court's denial of habeas relief is that Foster's claim is procedurally barred. This disposition is ordinarily a question of state law that this Court is powerless to review. Before addressing the merits of Foster's Batson claim, the Court should have sought clarification that the resolution of a federal question was implicated in the Georgia high court's decision.A The Supreme Court of Georgia's order in this case states in full: "Upon consideration of the Application for Certificate of Probable Cause to appeal the denial of habeas corpus, it is ordered that it be hereby denied." App. 246. Neither that order nor Georgia law provides adequate assurance that this case raises a federal question. Under Georgia law, a state prisoner may file a state habeas petition in a state superior court. Ga. Code Ann. §§9-14-41 to 9-14-43 (2015). If the state superior court denies the petition, then the prisoner may appeal to the Supreme Court of Georgia, which has exclusive jurisdiction over habeas corpus cases, by timely filing a notice of appeal in the superior court and applying for a certificate of probable cause in the supreme court. See Fullwood v. Sivley, 271 Ga. 248, 250-251, 517 S. E. 2d 511, 513-515 (1999) (discussing requirements of §9-14-52). Much like certificates of appealability in federal court, Miller-El v. Cockrell, 537 U. S. 322, 336 (2003), a Georgia prisoner must establish in his application that at least one of his claims has "arguable merit." Ga. Sup. Ct. Rule 36. If he cannot, the Supreme Court of Georgia summarily denies relief by denying the certificate of probable cause. Ibid.; see also §9-14-52(b); Hittson v. GDCP Warden, 759 F. 3d 1210, 1231-1232 (CA11 2014). If he can, then the court affords plenary review of the arguably meritorious claim. See, e.g., Sears v. Humphrey, 294 Ga. 117, 117-118, 751 S. E. 2d 365, 368 (2013); Hillman v. Johnson, 297 Ga. 609, 611, 615, n. 5, 774 S. E. 2d 615, 617, 620, n. 5 (2015). The most we can glean, therefore, from the summary denial of Foster's state habeas petition is that the Supreme Court of Georgia concluded that Foster's claim lacked "arguable merit." The most obvious ground for deciding that Foster's claim lacked "arguable merit" is that the Supreme Court of Georgia already considered that claim and rejected it decades ago.1 Georgia law prohibits Foster from raising the same claim anew in his state habeas petition. See, e.g., Davis v. Thomas, 261 Ga. 687, 689, 410 S. E. 2d 110, 112 (1991). "It is axiomatic" in the Georgia courts "that a habeas court is not to be used as a substitute for an appeal, or as a second appeal." Walker v. Penn, 271 Ga. 609, 612, 523 S. E. 2d 325, 327 (1999). Without such procedural bars, state prisoners could raise old claims again and again until they are declared victorious, and finality would mean nothing. See Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 145 (1970) ("The proverbial man from Mars would surely think we must consider our system of criminal justice terribly bad if we are willing to tolerate such efforts at undoing judgments of conviction"). I would think that this state-law defect in Foster's state habeas petition would be the end of the matter: "Because this Court has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory." Coleman v. Thompson, 501 U. S. 722, 729 (1991). It is fundamental that this Court's "only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights." Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945). If an adequate and independent state-law ground bars Foster's claim, then the Court today has done nothing more than issue an impermissible advisory opinion.B To assure itself of jurisdiction, the Court wrongly assumes that the one-line order before us implicates a federal question. See ante, at 7-8. The lurking state-law procedural bar, according to the Court, is not an independent state-law ground because it "depends on a federal constitutional ruling." Ante, at 7 (internal quotation marks omitted). I would not so hastily assume that the State Supreme Court's unelaborated order depends on the resolution of a federal question without first seeking clarification from the Supreme Court of Georgia. To be sure, we often presume that a "state court decide[s] the case the way it did because it believed that federal law required it to do so." Long, 463 U. S., at 1040-1041. But there still exist "certain circumstances in which clarification [from the state court] is necessary or desirable" before delving into the merits of a state court's decision. Id., at 1041, n. 6. This case presents such a circumstance. The Long presumption assumes that the ambiguous state-court ruling will come in the form of a reasoned decision: It applies in cases in which "it is not clear from the opinion itself that the state court relied upon an adequate and independent state ground and when it fairly appears that the state court rested its decision primarily on federal law." Id., at 1042 (emphasis added). But here, when the decision is a one-line judgment, it hardly makes sense to invoke the Long presumption. There is neither an "opinion" nor any resolution of federal law that "fairly appears" on the face of the unexplained order. Ibid. Confronted with cases like this in the past, this Court has vacated and remanded for clarification from the state court before proceeding to decide the merits of the underlying claim. I would follow that path instead of assuming that the one-line order implicates a federal question. We have "decline[d] . . . to review the federal questions asserted to be present" when " 'there is considerable uncertainty as to the precise grounds for the [state court's] decision.' " Bush v. Palm Beach County Canvassing Bd., 531 U. S. 70, 78 (2000) (per curiam) (quoting Minnesota v. National Tea Co., 309 U. S. 551, 555 (1940)). A fortiori, when a State's highest court has denied relief without any explanation, the proper course is to vacate and remand for clarification before reaching the merits of a federal question that might have nothing to do with the state court's decision. See, e.g., Capital Cities Media, Inc. v. Toole, 466 U. S. 378 (1984) (per curiam); see also, e.g., Johnson v. Risk, 137 U. S. 300, 306-307 (1890). This course respects weighty federalism concerns. "It is fundamental that state courts be left free and unfettered by us" in interpreting their own law, National Tea Co., supra, at 557, especially when a state prisoner's long-final conviction is at stake. Clarification is especially warranted here. Nothing in the reported decisions of the Supreme Court of Georgia suggests that federal law figures in how Georgia applies its res judicata procedural bar. Those decisions state that "new law or new facts" could "justify the reconsideration of the claims . . . raised on direct appeal," Hall v. Lance, 286 Ga. 365, 376-377, 687 S. E. 2d 809, 818 (2010), as might a showing that the prisoner is actually innocent, Walker, supra, at 611, 523 S. E. 2d, at 327. But it is for the Supreme Court of Georgia — not this Court — to decide what new facts suffice to reopen a claim already decided against a state habeas petitioner. It is up to the Georgia courts, for example, to decide whether a petitioner was diligent in discovering those new facts, see, e.g., Gibson v. Head, 282 Ga. 156, 159, 646 S. E. 2d 257, 260 (2007) (noting that whether a petitioner could overcome the procedural bar "depend[ed] on factual findings" including "the precise timing of [his] discovery of" the new evidence), or whether the new facts are "material," Rollf v. Carter, 298 Ga. 557, 558, ___ S. E. 2d ___, ___ (2016). Instead of leaving the application of Georgia law to the Georgia courts, the Court takes it upon itself to decide that the procedural bar implicates a federal question. Worse still, the Court surmises that Georgia's procedural bar depends on the resolution of a federal question by parsing the wrong court's decision, the opinion of the Superior Court of Butts County. Ante, at 7-8. Invoking Ake v. Oklahoma, 470 U. S. 68, 75 (1985), the Court reasons that "the state habeas court's application of res judicata to Foster's Batson claim was not independent of the merits of his federal constitutional challenge." Ante, at 8. (emphasis added). Accordingly, whether Foster has alleged a sufficient " 'change in the facts' " to overcome the Georgia procedural bar depends on whether Foster's Batson claim would succeed in light of those changed facts. Ante, at 7-8. But the State Superior Court's opinion is not the "judgmen[t] . . . by the highest court of [Georgia] in which a decision could be had" subject to our certiorari jurisdiction. 28 U. S. C. §1257. The unexplained denial of relief by the Supreme Court of Georgia is. I cannot go along with the Court's decision to assure itself of its jurisdiction by attributing snippets of the State Superior Court's reasoning to the Supreme Court of Georgia. The reported decisions of the Supreme Court of Georgia do not resolve what "type of new alleged facts . . . could ever warrant setting aside the procedural bar," Hall, supra, at 377, 687 S. E. 2d, at 818, let alone intimate that a prisoner may relitigate a claim already decided against him merely because he might win this second time around. Cf. Roulain v. Martin, 266 Ga. 353, 354, 466 S. E. 2d 837, 839 (1996) (opining that a state habeas court "would certainly be bound by the ruling [in the petitioner's direct appeal] regardless of whether that ruling may be erroneous"). I therefore refuse to presume that the unexplained denial of relief by the Supreme Court of Georgia presents a federal question.2 The Court today imposes an opinion-writing requirement on the States' highest courts. Lest those high courts be subject to lengthy digressions on constitutional claims that might (or might not) be at issue, they must offer reasoned opinions why — after rejecting the same claim decades ago — they refuse to grant habeas relief now. But "[o]pinion-writing practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack in federal court," including "concentrat[ing their] resources on the cases where opinions are most needed." Harrington v. Richter, 562 U. S. 86, 99 (2011). Rather than demand detailed opinions of overburdened state courts, the Court should vacate and remand cases such as this one to assure itself of its jurisdiction.II The Court further errs by deciding that Foster's Batson claim has arguable merit. Because the adjudication of his Batson claim is, at bottom, a credibility determination, we owe "great deference" to the state court's initial finding that the prosecution's race-neutral reasons for striking veniremen Eddie Hood and Marilyn Garrett were credible. Batson, 476 U. S., at 98, n. 21. On a record far less cold than today's, the Supreme Court of Georgia long ago (on direct appeal) rejected that claim by giving great deference to the trial court's credibility determinations. Evaluating the strike of venireman Hood, the court highlighted that his son had been convicted of a misdemeanor and that both his demeanor and religious affiliation indicated that he might be reluctant to impose the death penalty. Foster, 258 Ga., at 738, 374 S. E. 2d, at 192. And the prosecution reasonably struck venireman Garrett, according to the court, because it feared that she would sympathize with Foster given her work with "low-income, underprivileged children" and because she was "related to someone with a drug or alcohol problem." Id., at 739, 374 S. E. 2d, at 192. That should have been the last word on Foster's Batson claim. But now, Foster has access to the prosecution's file. By allowing Foster to relitigate his Batson claim by bringing this newly discovered evidence to the fore, the Court upends Batson's deferential framework. Foster's new evidence does not justify this Court's reassessment of who was telling the truth nearly three decades removed from voir dire.A The new evidence sets the tone for the Court's analysis, but a closer look reveals that it has limited probative value. For this reason, the Court's conclusion that the prosecution violated Batson rests mostly on arguments at Foster's disposal decades ago. See ante, at 14-16 (concluding that trial transcripts belie proffered reasons for striking Garrett); ante, at 17-22 (relying on transcripts and briefs as evidence of the prosecution's shifting explanations for striking Hood). The new evidence is no excuse for the Court's reversal of the state court's credibility determinations. As even the Court admits, ante, at 9-10, we do not know who wrote most of the notes that Foster now relies upon as proof of the prosecutors' race-based motivations. We do know, however, that both prosecutors averred that they "did not make any of the highlighted marks on the jury venire list" and "did not instruct anyone to make the green highlighted marks." App. 168-169, 171. In particular, prosecutor Stephen Lanier reaffirmed his earlier testimony, given during Foster's hearing for a new trial, that he relied only on race-neutral factors in striking the jury. Id., at 169; see also id., at 80-125. And, prosecutor Douglas Pullen swore that he "did not rely on the highlighted jury venire list." Id., at 171. The hazy recollections of the prosecution's investigator, Clayton Lundy, are not to the contrary. As part of the postconviction proceedings, Lundy testified that he "[v]aguely" remembered parts of jury selection, he "kind of remember[ed]" some of the documents used during jury selection, and cautioned that he "ain't done this in a long time." Tr. 181-182. (When Lundy testified in 2006, nearly 20 years had passed since Foster's trial and he had changed careers. Id., at 174.) He thought others at the district attorney's office "probably" passed venire lists around the office and "guess[ed]" that everyone would make notations. Id., at 182, 190. As for the other documents in the prosecution's file, Lundy could not identify who authored any of them, with two exceptions.3 First, Lundy said he prepared handwritten lists describing seven veniremen, including Garrett, but her race is not mentioned. See id., at 205; App. 293-294. Second, Lundy "guess[ed]" that prosecutor Lanier suggested the handwritten edits to a draft of an affidavit that Lundy later submitted to the trial court. Tr. 203; see App. 343-347 (draft affidavit); id., at 127-129 (final affidavit). The relevant edits suggested deleting two statements that, "solely [in Lundy's] opinion," prosecutors ought to pick Garrett "[i]f it comes down to having to pick one of the black jurors." Id., at 345 (emphasis added). Perhaps this look inside the district attorney's office reveals that the office debated internally who would be the best black juror. Or perhaps it reveals only Lundy's personal thoughts about selecting black jurors, an "opinion" with which (we can "guess") Lanier disagreed. The notion that this "newly discovered evidence" could warrant relitigation of a Batson claim is flabbergasting. In Batson cases, the "decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed." Hernandez v. New York, 500 U. S. 352, 365 (1991) (plurality opinion). And because "[t]here will seldom be much evidence bearing on that issue," "the best evidence often will be the demeanor of the attorney who exercises the challenge." Ibid. Time and again, we have said that the credibility of the attorney is best judged by the trial court and can be overturned only if it is clearly erroneous. See ibid.; see also Snyder v. Louisiana, 552 U. S. 472, 477 (2008); Miller-El, 537 U. S., at 339; Hernandez, supra, at 375 (O'Connor, J., concurring in judgment). But the Court today invites state prisoners to go searching for new "evidence" by demanding the files of the prosecutors who long ago convicted them. If those prisoners succeed, then apparently this Court's doors are open to conduct the credibility determination anew. Alas, "every end is instead a new beginning" for a majority of this Court. Welch v. United States, ante, at 15 (Thomas, J., dissenting). I cannot go along with that "sort of sandbagging of state courts." Miller-El v. Dretke, 545 U. S. 231, 279 (2005) (Thomas, J., dissenting). New evidence should not justify the relitigation of Batson claims.B Perhaps the Court's decision to reconsider a decades-old Batson claim based on newly discovered evidence would be less alarming if the new evidence revealed that the trial court had misjudged the prosecutors' reasons for striking Garrett and Hood. It does not. Not only is the probative value of the evidence severely limited, supra, at 8-11, but also pieces of the new evidence corroborate the trial court's conclusion that the race-neutral reasons were valid. The Court's substitution of its judgment for the trial court's credibility determinations is flawed both as a legal and factual matter.1 The Court's analysis with respect to Hood is unavailing. The Court first compares Hood with other jurors who had similarly aged children, ante, at 18-19, just as the trial court did decades ago, App. 135-136. The trial court was well aware that Hood's son's conviction was for theft, not murder. But in the words of the trial court, "the conviction is a distinction that makes the difference" between Hood and the other jurors, and the prosecution's "apprehension that this would tend to, perhaps only subconsciously, make the venireman sympathetic to [Foster] was a rational one." Ibid. Because "the trial court believe[d] the prosecutor's nonracial justification, and that finding is not clearly erroneous, that [should be] the end of the matter." Hernandez, supra, at 375 (O'Connor, J., concurring in judgment). The Court also second-guesses the prosecution's strike of Hood because of his questionable stance on the death penalty. The Court concludes that Hood's transcribed statements at voir dire "unequivocally voiced [Hood's] willingness to impose the death penalty." Ante, at 22. There is nothing unequivocal about a decades-old record. Our case law requires the Court to defer to the trial court's finding that the State's race-neutral concerns about Hood's "soft-spoken[ness] and slow[ness] in responding to the death penalty questions" were "credible." App. 138; see Snyder, supra, at 477 ("[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's firsthand observations of even greater importance"). The "evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province." Hernandez, supra, at 365 (plurality opinion) (internal quotation marks omitted). The new evidence, moreover, supports the prosecution's concern about Hood's views on capital punishment. A handwritten document in the prosecution's file stated that the Church of Christ "doesn't take a stand on [the] Death Penalty." App. 302. Perplexingly, the Court considers this proof that the prosecution misled the trial court about its reasons for striking Hood. Ante, at 20-21. Hardly. That document further states that capital punishment is an issue "left for each individual member," App. 302, and thus in no way discredits the prosecutor's statement that, in his experience, "Church of Christ people, while they may not take a formal stand against the death penalty, . . . are very, very reluctant to vote for the death penalty." Id., at 84. And other notes in the file say that Hood gave "slow D[eath] P[enalty] answers" and that he "hesitated . . . when asked about [the] D[eath] P[enalty]." Id., at 295, 303. This new evidence supports the prosecution's stated reason for striking Hood — that he, as a member of the Church of Christ, had taken an uncertain stance on capital punishment.2 Likewise, the Court's evaluation of the strike of Garrett is riddled with error. The Court is vexed by a single misrepresentation about the prosecution's decision to strike Garrett — the prosecution stated that Garrett was listed as " 'questionable' " but the new evidence reveals that Garrett was on the " 'definite NO's' " list from the beginning. Ante, at 13-14. But whether the prosecution planned to strike Garrett all along or only at the last minute seems irrelevant to the more than 10 race-neutral reasons the prosecution supplied for striking Garrett. The prosecution feared that Garrett might sympathize with Foster at sentencing. She worked with disadvantaged children, she was young, and she failed to disclose that her cousin had been recently arrested. See App. 55-57, 105. And prosecutors were concerned that she gave short answers, appeared nervous, and did not ask to be off the jury even though she was a divorced mother of two children and worked more than 70 hours per week. See id., at 55-56, 93-94. The prosecution also stated repeatedly that they were concerned about female jurors, who "appear to be more sympathetic . . . in . . . death penalty case[s] than men." Id., at 42; see id., at 57.4 Pieces of the new evidence support some of these concerns. The notes in the prosecutors' file reveal that someone on the prosecution team was aware that Garrett's cousin was Angela Garrett (who had been arrested for drug-related charges and fired from her job on the eve of trial, id., at 105, 129), that Garrett "would not look a[t] [the] C[our]t during V[oir] D[ire]," that she gave "very short answers," and that she "[l]ooked @ floor during D[eath] P[enalty]" questioning. Id., at 293, 308. Nevertheless, the Court frets that these indisputably race-neutral reasons were pretextual. The Court engages in its own comparison of the jurors to highlight the prosecution's refusal to strike white jurors with similar characteristics. Ante, at 14-16. But as with venireman Hood, the Georgia courts were faced with the same contentions regarding Garrett decades ago, and the Supreme Court of Georgia rightly decided that the trial court's findings were worthy of deference. After conducting a post-trial hearing in which one of the prosecutors testified, App. 80-125, the trial court credited the prosecution's concerns. The trial court, for example, agreed that Garrett's association with Head Start might be troubling and "believe[d] that the state [was] honest in voicing its concern that the combination of holding down two jobs and being the divorced mother of two indicates a less stable home environment," which "was the prime defense in [Foster's] case." Id., at 142; see id., at 141. Again, that should be "the end of the matter." Hernandez, 500 U. S., at 375 (O'Connor, J., concurring in judgment).* * * Today, without first seeking clarification from Georgia's highest court that it decided a federal question, the Court affords a death-row inmate another opportunity to relitigate his long-final conviction. In few other circumstances could I imagine the Court spilling so much ink over a factbound claim arising from a state postconviction proceeding. It was the trial court that observed the veniremen firsthand and heard them answer the prosecution's questions, and its evaluation of the prosecution's credibility on this point is certainly far better than this Court's nearly 30 years later. See Hernandez, supra, at 365 (plurality opinion). I respectfully dissent.FOOTNOTESFootnote 1 The order stated, in its entirety: "Upon consideration of the Application for Certificate of Probable Cause to appeal the denial of habeas corpus, it is ordered that it be hereby denied. All the Justices concur, except Benham, J., who dissents." App. 246.Footnote 2 We construe Foster's petition for writ of certiorari as seeking review of the Georgia Supreme Court's order denying him a "Certificate of Probable Cause." App. 246. The Georgia Supreme Court Rules provide that such a certificate "will be issued where there is arguable merit." Rule 36 (emphasis added); see also Hittson v. GDCP Warden, 759 F. 3d 1210, 1231-1232 (CA11 2014). A decision by the Georgia Supreme Court that Foster's appeal had no "arguable merit" would seem to be a decision on the merits of his claim. In such circumstances the Georgia Supreme Court's order is subject to review in this Court pursuant to a writ of certiorari under 28 U. S. C. §1257(a). R. J. Reynolds Tobacco Co. v. Durham County, 479 U. S. 130, 138-139 (1986); see Sears v. Upton, 561 U. S. 945 (2010) (per curiam) (exercising jurisdiction over order from Georgia Supreme Court denying a Certificate of Probable Cause). We reach the conclusion that such an order is a decision on the merits "in the absence of positive assurance to the contrary" from the Georgia Supreme Court. R. J. Reynolds, 479 U. S., at 138.Footnote 3 Contrary to the dissent's assertion, see post, at 6-8, it is perfectly consistent with this Court's past practices to review a lower court decision — in this case, that of the Georgia habeas court — in order to ascertain whether a federal question may be implicated in an unreasoned summary order from a higher court. See, e.g., R. J. Reynolds, 479 U. S., at 136-139 (exercising §1257 jurisdiction over unreasoned judgment by the North Carolina Supreme Court after examining grounds of decision posited by North Carolina Court of Appeal); see also Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, Dan Himmelfarb, Supreme Court Practice 211 (10th ed. 2013) ("[W]here the state court opinion fails to yield precise answers as to the grounds of decision, the Court may be forced to turn to other parts of the record, such as pleadings, motions, and trial court rulings, to determine if a federal claim is so central to the controversy as to preclude resting the judgment on independent and adequate state grounds."). And even the dissent does not follow its own rule. It too goes beyond the unreasoned order of the Georgia Supreme Court in determining that the "likely explanation for the court's denial of habeas relief is that Foster's claim is procedurally barred." Post, at 2. There would be no way to know this, of course, from the face of the Georgia Supreme Court's summary order.Footnote 4 The concurrence notes that the "res judicata rule applied by the Superior Court in this case is quite different" from the state procedural bar at issue in Ake, which was "entirely dependent on federal law." Post, at 8. But whether a state law determination is characterized as "entirely dependent on," ibid., "resting primarily on," Stewart v. Smith, 536 U. S. 856, 860 (2002) (per curiam), or "influenced by" a question of federal law, Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 152 (1984), the result is the same: the state law determination is not independent of federal law and thus poses no bar to our jurisdiction.Footnote 5 See 2 Trial Transcript 269 ("[Court]: Are you opposed to or against the death penalty? A: I am not opposed to it. Q: If the facts and circumstances warrant the death penalty, are you prepared to vote for the death penalty? A: Yes."); id., at 270 ("[Court]: [A]re you prepared to vote for the death penalty? Now you said yes to that. A: All right. Q: Are you still saying yes? A: Uh-huh."); id., at 274 ("[Court]: If the evidence warrants the death penalty, could you vote for the death penalty? A: Yes. I could vote for the death penalty."); id., at 278 ("[Pullen]: And if the facts and circumstances warranted, you could vote to impose the death penalty? Yes.").Footnote 6 In Snyder, we noted that we had not previously allowed the prosecution to show that "a discriminatory intent [that] was a substantial or motivating factor" behind a strike was nevertheless not "determinative" to the prosecution's decision to exercise the strike. 552 U. S., at 485. The State does not raise such an argument here and so, as in Snyder, we need not decide the availability of such a defense.FOOTNOTESFootnote 1 Nor did his petition for rehearing, which was also denied. Foster v. Georgia, 492 U. S. 928 (1989).Footnote 2 See Zant v. Foster, 261 Ga. 450, 406 S. E. 2d 74 (1991); Foster v. State, 272 Ga. 69, 525 S. E. 2d 78 (2000).Footnote 3 See Foster v. Georgia, 503 U. S. 921 (1992); Foster v. Georgia, 531 U. S. 890, reh'g denied, 531 U. S. 1045 (2000).Footnote 4 Georgia res judicata law may also include a "miscarriage of justice" exception, but that appears to capture only the exceptionally rare claim of actual innocence, and so is not at issue here. See Walker v. Penn, 271 Ga. 609, 611, 523 S. E. 2d 325, 327 (1999) ("The term miscarriage of justice is by no means to be deemed synonymous with procedural irregularity, or even with reversible error. To the contrary, it demands a much greater substance, approaching perhaps the imprisonment of one who, not only is not guilty of the specific offense for which he is convicted, but, further, is not even culpable in the circumstances under inquiry. (A plain example is a case of mistaken identity)" (brackets omitted)).Footnote 5 The Court relies on Ake solely for the proposition, with which I agree, that we have jurisdiction to review the federal question whether the totality of the circumstances (that is, all the facts brought to the attention of the state courts on direct appeal and collateral review) make out a Batson claim. Ante, at 9, n. 4. Thus, the Court does not preclude consideration of state law issues on remand. See ante, at 25.FOOTNOTESFootnote 1 That is obvious, in part, because the Superior Court rested on this procedural bar to deny Foster's Batson claim. See, e.g., App. 175-176. We need not blind ourselves to that lurking state-law ground merely because the Supreme Court of Georgia denied relief in an unexplained order. As we would do in the federal habeas context, we may "look through" to the last reasoned state-court opinion to discern whether that opinion rested on state-law procedural grounds. Ylst v. Nunnemaker, 501 U. S. 797, 806 (1991). If "the last reasoned opinion on the claim explicitly imposes a procedural default," then there is a rebuttable presumption "that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Id., at 803; see also, e.g., Kernan v. Hinojosa, ante, at 3 ( per curiam). We presume, in other words, that the decision rests on a question of state law. That presumption arguably plays an even more important role in a state-court case like this, where a state-law procedural defect would oust this Court of its jurisdiction. See Coleman v. Thompson, 501 U. S. 722, 730 (1991) (distinguishing a state-law procedural bar's effect on a state case from its effect in federal habeas).Footnote 2 The Court takes me to task for not "follow[ing my] own rule," ante, at 8-9, n. 3, because I acknowledge that the State Superior Court's decision is strong evidence that Foster's claim was denied as procedurally defaulted. See supra, at 3-4, and n. 1. It is one thing to look to the reasoning of a lower state court's decision to confirm that the Court lacks jurisdiction. It is quite another for the Court to probe that lower state court's decision to assure itself of jurisdiction. The Court reads the tea leaves of a single State Superior Court's decision to decide that the state-law procedural bar depends on the resolution of a federal question. That is a question of Georgia law that is best answered by the decisions of the Supreme Court of Georgia. See Commissioner v. Estate of Bosch, 387 U. S. 456, 465 (1967) (concluding that when "the underlying substantive rule involved is based on state law," "the State's highest court is the best authority on its own law"); cf. King v. Order of United Commercial Travelers of America, 333 U. S. 153, 160-162 (1948) (rejecting an unreported state trial court decision as binding under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938)).Footnote 3 At oral argument, counsel for Georgia also stipulated that "one of the two prosecutors" must have drafted another document comprising a "definite NO's" list and a "questionables" list of veniremen. Tr. of Oral Arg. 45; App. 301. Both veniremen Hood and Garrett appeared on the "definite NO's" list. Of course we cannot know when these lists were created, or whether Lanier himself relied upon them. See Tr. of Oral Arg. 45 (calling into question whether Lanier's "thought process" was based on those lists).Footnote 4 This Court's decision in J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994), which held that peremptory strikes on the basis of sex were unconstitutional, postdated Foster's direct appeal. |
7 | In view of the entire record in this case, and the findings of the courts below, petitioner's permanent disbarment by the District Court for his conduct in the trial of the Dennis case is set aside as unnecessarily severe, and the cause is remanded for further proceedings. Pp. 388-389. 206 F.2d 358, reversed and remanded.Telford Taylor argued the cause and filed a brief for petitioner.Eli Whitney Debevoise argued the cause and filed a brief for respondents.PER CURIAM.This is a proceeding brought by respondent bar associations in the United States District Court for the Southern District of New York for the disbarment of petitioner from practice in that court. Petitioner had previously been convicted of contempt in the same court. See Sacher v. United States, .The District Court, after disallowing eight of the specifications in the petition for disbarment, found as to the others that there was no conspiracy as charged therein and no moral turpitude involved, and that the proven contumacious conduct of petitioner stemmed from an excess of zeal for his clients that obscured his recognition of responsibility as an officer of the court. All of the conduct complained of occurred in one protracted trial involving many defendants and counsel. See Dennis v. United States, . There was no allegation or proof of prior misconduct in petitioner's twenty-four years of practice. The Court of Appeals divided upon the propriety of permanent disbarment, but unanimously questioned the importance of one of the two specifications principally relied on by the trial court.At the time the District Court made its decision in this case, the contempt judgment was under review on appeal, and it did not know and could not know that petitioner would be obliged to serve, as he did, a six months' sentence for the same conduct for which it disbarred him.In view of this entire record and of the findings of the courts below, we are of the opinion that permanent disbarment in this case is unnecessarily severe. The judgment is reversed and the case remanded to the District Court for further consideration and appropriate action not inconsistent with this opinion.MR. JUSTICE BURTON would affirm the judgment of the Court of Appeals.MR. JUSTICE CLARK took no part in the consideration or decision of this case.MR. JUSTICE REED, dissenting.The conclusion of the Court that the conduct of Mr. Sacher in the trial of Dennis v. United States, , did not justify the order of disbarment entered against him by the United States District Court for the Southern District of New York seems so inimical to the orderly administration of justice as to justify this expression of dissent. We trust that the purpose of the dissent will not be misinterpreted as an implied criticism of those members of the bar who undertake the task of the representation of unpopular clients. Those who provide such counsel in the spirit of justice and in accordance with the dignity of the courts are to be commended. They enhance the tradition of American lawyers of seeing that all defendants have proper representation before the courts. The purpose of this dissent is to show that in reversing the disbarment of Mr. Sacher this Court departs from its previous practice of leaving exclusions from their bars to the district courts except when there has been an abuse of discretion.If no protest against such action were made here, we think the danger of the adoption of tactics akin to those of Mr. Sacher by other lawyers in other cases of intense partisanship or involving deep feeling would be materially enlarged. The contagiousness of unethical practices is shown by the conduct in the Dennis case by another member of the bar that resulted in his conviction of contempt, , and in his suspension from membership in the District Court Bar for two years.1 The New Jersey Supreme Court disbarred this other lawyer from the practice of law in that State on the basis of such contempt conviction. 9 N. J. 269, 316, 87 A. 2d 903, 88 A. 2d 199. That action resulted in his disbarment from our Bar. .The misconduct charged against Mr. Sacher occurred in a long-drawn-out trial lasting from January 17, 1949, with occasional intermissions until a verdict of guilty, subsequently affirmed here, was reached on October 21, 1949. The charges and findings as to improper conduct do not refer to an isolated instance but to a course of reprehensible conduct throughout the trial. The charges were filed by the Association of the Bar of the City of New York and the New York County Lawyers' Association after the verdict in the Dennis case. At that time the trial judge in the Dennis case had imposed on Mr. Sacher as punishment for his contemptuous conduct a sentence of six months.2 This was upheld by this Court after the order of disbarment and has been served. The sentence was a punishment for Mr. Sacher's contempt of court. Disbarment is not punishment for contempt but a cleansing of the bar by ousting.3 Punishment for contempt should not be considered as a prohibition of or in mitigation of discipline in disbarment proceedings. In fact, a prior conviction adds force to the need to disbar. The Court's per curiam opinion in this case seems to incline to the contrary view. Apparently it looks upon the affirmance of the contempt conviction as something that must soften the attitude toward disbarment.Coming to the merits of this disbarment, we limited consideration on certiorari to the following question: "Accepting the facts as found in the memorandum decision of Chief Judge Hincks, does permanent disbarment exceed the bounds of fair discretion, particularly in view of the punishment of petitioner's individual misconduct as a contempt and the finding that the proof does not establish that he so behaved pursuant to a conspiracy or a deliberate and concerted effort?"4 That limitation accepted the following findings made by Chief Judge Hincks as a valid and unassailable foundation for decision: "As to Mr. Sacher, I find as charged in Par. 14, "(1) that with intent to delay and obstruct the trial, he disregarded numerous warnings of the court concerning wilful, delaying tactics and persisted in making long and repetitious arguments and protests, ... and made needless reiterations of objections of others, ... . "(2) that for the purpose of bringing the court into general discredit and disrepute, (a) he insinuated that various findings made by the court were made for purposes of newspaper headlines, ... (b) he accused the court of prejudice and partiality, ... and (c) made disrespectful, insolent and sarcastic comments and remarks to the court, many of which were with intent to provoke the court into intemperate action which might be availed of as ground for mistrial or later as error on appeal, ... . "Mr. Sacher's proved misconduct, as charged in this paragraph ... in my judgment requires disbarment." [Record references omitted.] "3. By Paragraph 16 it is also charged that Mr. Sacher `made insolent, sarcastic, impertinent and disrespectful remarks to the Court and conducted' himself `in a provocative manner.' This charge also I find abundantly proved by the cited references to the record." It would take voluminous quotations from the huge record to document Chief Judge Hincks' conclusions. Our order on certiorari accepts their truth. The trial court commented: "That such conduct was unprofessional needs no exegesis: I so hold. Even more closely than that dealt with in the preceding Section it touches the vitals of the judicial process: even greater is its tendency to obstruct the attainment of personal justice. And the proven volume of this misconduct also was such as to constitute a serious obstruction to the proper conduct of the trial. Overpersistence in argument, as observed above, tends to breed confusion. Provocative conduct tends to breed turbulence. Insolent and disrespectful remarks to the Court tend to undermine the judicial authority indispensable to the power effectively to cope with such intrusions which by their very nature obstruct the development of the real merits of the case. "For proved misconduct falling within this branch of the charge, I conclude that an order of disbarment is required." The Court, as it must by its grant of certiorari, bases its action on the facts of disrespect to the trial court, wilful delay, and a purpose to discredit the administration of justice. It differs from the trial court only as to the measure of discipline required.5 By reversing the judgment below, without discussion of the accepted rule in federal courts that the exercise of judicial discretion in disbarment will not be overturned on review unless there is a clear abuse of discretion,6 this Court now summarily places itself in the position of a trial court. It acts, not upon an abuse of discretion by the trial court, but upon a record to determine for itself the proper extent of punishment. Certainly this Court does not mean to rule that conduct such as the accepted facts disclose does not support the discretion of the trial judge in disbarring Mr. Sacher.7 Such a change of the course of decision is a disservice to the orderly progress of trials. It stimulates rather than deters the adoption of the strategy of the Dennis case. It intrudes unnecessarily this Court's views of the proprieties into the discipline of bars of regions and communities whose attitude toward courtroom behavior diverges from our own. It is enough if we stand ready to say that an abuse of discretion by a trial court will not be allowed to stand. We should not substitute our discretion for that of the trial judge. Calm and reasoned presentation of facts and law are not only more effective but are essential if administration of justice by the courts is not to be disrupted by such courtroom tactics as were used in the Dennis trial. We demand tolerance for those who differ. Conformity is not expected or desired. There is room for every shade of opinion and expression short of incitement to crime. But there is not room for violence, offensive expletives or interference with orderly procedure in a courtroom, and such an attitude is not to exalt order over liberty but to exalt reason over force. An atmosphere filled with unproven personal charges or innuendoes of wrongful action is not conducive to dispassionate appraisal of the truth of matters under judicial investigation. I would uphold the discipline administered by the bar and trial judge by affirming this judgment. |
0 | Petitioner was tried in an Indiana State Court, convicted of murder, and sentenced to death. Six murders had been committed in the vicinity of Evansville, Ind., and they were extensively covered by news media in the locality, which aroused great excitement and indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County. Shortly after petitioner was arrested, the Prosecutor of Vanderburgh County and Evansville police officials issued press releases, which were intensively publicized, stating that petitioner had confessed to the six murders. When petitioner was indicated in Vanderburgh County, counsel appointed to defend him immediately sought a change of venue, which was granted, but to adjoining Gibson County. Alleging that the widespread and inflammatory publicity had also highly prejudiced the inhabitants of Gibson County against petitioner, his counsel sought a change of venue from that County to a county sufficiently removed from the Evansville locality to permit an unprejudiced and fair trial; but this was denied. At the trial, the jury panel consisted of 430 persons; 268 of these were excused for cause as having fixed opinions as to the guilt of petitioner; and 8 of the 12 who finally served on the jury admitted that they thought petitioner was guilty, but each indicated that, notwithstanding his opinion, he could render an impartial verdict. After petitioner's conviction had been sustained by the State Supreme Court, he applied to a Federal District Court for a writ of habeas corpus, which was denied. Held: Petitioner was not accorded a fair and impartial trial, to which he was entitled under the Due Process Clause of the Fourteenth Amendment; his conviction is void; the judgment denying habeas corpus is vacated; and the case is remanded to the District Court for further proceedings affording the State a reasonable time to retry petitioner. Pp. 718-729. (a) Since the State Supreme Court has held that, where an attempt has been made to secure an impartial jury by a change in venue but it appears that such a jury could not be obtained in the county to which the venue was changed, it is the duty of the court to grant a second change of venue in order to afford the accused a trial by an impartial jury, a state statute purporting to permit only one change of venue is not, on its face, subject to attack on due process grounds. Pp. 720-721. (b) Failure of a State to accord a fair hearing to one accused of a crime violates the Due Process Clause of the Fourteenth Amendment; and a trial by jury is not fair unless the jury is impartial. Pp. 721-722. (c) In the circumstances of this case, it was the duty of the Federal Court of Appeals to evaluate independently the voir dire testimony of the impaneled jurors. Pp. 722-723. (d) On the record in this case, it cannot be said that petitioner was accorded a fair trial by an impartial jury. Pp. 723-728. (e) Petitioner is entitled to be freed from detention and sentence of death pursuant to the void judgment; but he is still subject to custody under the indictment; he may be retried under this or another indictment; and the District Court should allow the State a reasonable time in which to retry him. Pp. 728-729. 271 F.2d 552, judgment vacated and cause remanded.James D. Lopp and Theodore Lockyear, Jr. argued the cause for petitioner. With them on the brief was James D. Nafe.Richard M. Givan, Assistant Attorney General of Indiana, argued the cause for respondent. With him on the brief was Edwin K. Steers, Attorney General.MR. JUSTICE CLARK delivered the opinion of the Court.This is a habeas corpus proceeding, brought to test the validity of petitioner's conviction of murder and sentence of death in the Circuit Court of Gibson County, Indiana. The Indiana Supreme Court affirmed the conviction in Irvin v. State, 236 Ind. 384, 139 N. E. 2d 898, and we denied direct review by certiorari "without prejudice to filing for federal habeas corpus after exhausting state remedies." . Petitioner immediately sought a writ of habeas corpus, under 28 U.S.C. 2241,1 in the District Court for the Northern District of Indiana, claiming that his conviction had been obtained in violation of the Fourteenth Amendment in that he did not receive a fair trial. That court dismissed the proceeding on the ground that petitioner had failed to exhaust his state remedies. 153 F. Supp. 531. On appeal, the Court of Appeals for the Seventh Circuit affirmed the dismissal. 251 F.2d 548. We granted certiorari, , and remanded to the Court of Appeals for decision on the merits or remand to the District Court for reconsideration. . The Court of Appeals retained jurisdiction and decided the claim adversely to petitioner. 271 F.2d 552. We granted certiorari, .As stated in the former opinion, 359 U.S., at 396-397: "The constitutional claim arises in this way. Six murders were committed in the vicinity of Evansville, Indiana, two in December 1954, and four in March 1955. The crimes, extensively covered by news media in the locality, aroused great excitement and indignation throughout Vanderburgh County, where Evansville is located, and adjoining Gibson County, a rural county of approximately 30,000 inhabitants. The petitioner was arrested on April 8, 1955. Shortly thereafter, the Prosecutor of Vanderburgh County and Evansville police officials issued press releases. which were intensively publicized, stating that the petitioner had confessed to the six murders. The Vanderburgh County Grand Jury soon indicted the petitioner for the murder which resulted in his conviction. This was the murder of Whitney Wesley Kerr allegedly committed in Vanderburgh County on December 23, 1954. Counsel appointed to defend petitioner immediately sought a change of venue from Vanderburgh County, which was granted, but to adjoining Gibson County. Alleging that the widespread and inflammatory publicity had also highly prejudiced the inhabitants of Gibson County against the petitioner, counsel, on October 29, 1955, sought another change of venue, from Gibson County to a county sufficiently removed from the Evansville locality that a fair trial would not be prejudiced. The motion was denied, apparently because the pertinent Indiana statute allows only a single change of venue." During the course of the voir dire examination, which lasted some four weeks, petitioner filed two more motions for a change of venue and eight motions for continuances. All were denied.At the outset we are met with the Indiana statute providing that only one change of venue shall be granted "from the county" wherein the offense was committed.2 Since petitioner had already been afforded one change of venue, and had been denied further changes solely on the basis of the statute, he attacked its constitutionality. The Court of Appeals upheld its validity. However, in the light of Gannon v. Porter Circuit Court, 239 Ind. 637, 159 N. E. 2d 713, we do not believe that argument poses a serious problem. There the Indiana Supreme Court held that if it was "made to appear after attempt has actually been made to secure an impartial jury that such jury could not be obtained in the county of present venue ... it becomes the duty of the judiciary to provide to every accused a public trial by an impartial jury, even though to do so the court must grant a second change of venue and thus contravene [the statute] ... ." 239 Ind., at 642, 159 N. E. 2d, at 715. The prosecution attempts to distinguish that case on the ground that the District Attorney there conceded that a fair trial could not be had in La Porte County and that the court, therefore, properly ordered a second change of venue despite the language of the statute. Inasmuch as the statute says nothing of concessions, we do not believe that the Indiana Supreme Court conditions the duty of the judiciary to transfer a case to another county solely upon the representation by the prosecutor - regardless of the trial court's own estimate of local conditions - that an impartial jury may not be impaneled. As we read Gannon, it stands for the proposition that the necessity for transfer will depend upon the totality of the surrounding facts. Under this construction the statute is not, on its face, subject to attack on due process grounds.England, from whom the Western World has largely taken its concepts of individual liberty and of the dignity and worth of every man, has bequeathed to us safeguards for their preservation, the most priceless of which is that of trial by jury. This right has become as much American as it was once the most English. Although this Court has said that the Fourteenth Amendment does not demand the use of jury trials in a State's criminal procedure, Fay v. New York, ; Palko v. Connecticut, , every State has constitutionally provided trial by jury. See Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 578-579 (1959). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, ; Tumey v. Ohio, . "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, . In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as "indifferent as he stands unsworne." Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, . This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr's Trial 416 (1807).3 "The theory of the law is that a juror who has formed an opinion cannot be impartial." Reynolds v. United States, .It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Spies v. Illinois, ; Holt v. United States, ; Reynolds v. United States, supra.The adoption of such a rule, however, "cannot foreclose inquiry as to whether, in a given case, the application of that rule works a deprivation of the prisoner's life or liberty without due process of law." Lisenba v. California, . As stated in Reynolds, the test is "whether the nature and strength of the opinion formed are such as in law necessarily ... raise the presumption of partiality. The question thus presented is one of mixed law and fact ... ." At p. 156. "The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside ... . If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed." At p. 157. As was stated in Brown v. Allen, , the "so-called mixed questions or the application of constitutional principles to the facts as found leave the duty of adjudication with the federal judge." It was, therefore, the duty of the Court of Appeals to independently evaluate the voir dire testimony of the impaneled jurors.The rule was established in Reynolds that "[t]he finding of the trial court upon that issue [the force of a prospective juror's opinion] ought not be set aside by a reviewing court, unless the error is manifest." 98 U.S., at 156. In later cases this Court revisited Reynolds, citing it in each instance for the proposition that findings of impartiality should be set aside only where prejudice is "manifest." Holt v. United States, supra; Spies v. Illinois, supra; Hopt v. Utah, . Indiana agrees that a trial by jurors having a fixed, preconceived opinion of the accused's guilt would be a denial of due process, but points out that the voir dire examination discloses that each juror qualified under the applicable Indiana statute.4 It is true that the presiding judge personally examined those members of the jury panel whom petitioner, having no more peremptory challenges, insisted should be excused for cause, and that each indicated that notwithstanding his opinion he could render an impartial verdict. But as Chief Justice Hughes observed in United States v. Wood, : "Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula."Here the build-up of prejudice is clear and convincing. An examination of the then current community pattern of thought as indicated by the popular news media is singularly revealing. For example, petitioner's first motion for a change of venue from Gibson County alleged that the awaited trial of petitioner had become the cause celebre of this small community - so much so that curbstone opinions, not only as to petitioner's guilt but even as to what punishment he should receive, were solicited and recorded on the public streets by a roving reporter, and later were broadcast over the local stations. A reading of the 46 exhibits which petitioner attached to his motion indicates that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial. The motion further alleged that the newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and that, in addition, the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents. These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess. Finally, they announced his confession to the six murders and the fact of his indictment for four of them in Indiana. They reported petitioner's offer to plead guilty if promised a 99-year sentence, but also the determination, on the other hand, of the prosecutor to secure the death penalty, and that petitioner had confessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted). One story dramatically relayed the promise of a sheriff to devote his life to securing petitioner's execution by the State of Kentucky, where petitioner is alleged to have committed one of the six murders, if Indiana failed to do so. Another characterized petitioner as remorseless and without conscience but also as having been found sane by a court-appointed panel of doctors. In many of the stories petitioner was described as the "confessed slayer of six," a parole violator and fraudulent-check artist. Petitioner's court-appointed counsel was quoted as having received "much criticism over being Irvin's counsel" and it was pointed out, by way of excusing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial the newspapers carried the story that Irvin had orally admitted the murder of Kerr (the victim in this case) as well as "the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Ky."It cannot be gainsaid that the force of this continued adverse publicity caused a sustained excitement and fostered a strong prejudice among the people of Gibson County. In fact, on the second day devoted to the selection of the jury, the newspapers reported that "strong feelings, often bitter and angry, rumbled to the surface," and that "the extent to which the multiple murders - three in one family - have aroused feelings throughout the area was emphasized Friday when 27 of the 35 prospective jurors questioned were excused for holding biased pretrial opinions... ." A few days later the feeling was described as "a pattern of deep and bitter prejudice against the former pipe-fitter." Spectator comments, as printed by the newspapers, were "my mind is made up"; "I think he is guilty"; and "he should be hanged."Finally, and with remarkable understatement, the headlines reported that "impartial jurors are hard to find." The panel consisted of 430 persons. The court itself excused 268 of those on challenges for cause as having fixed opinions as to the guilt of petitioner; 103 were excused because of conscientious objection to the imposition of the death penalty; 20, the maximum allowed, were peremptorily challenged by petitioner and 10 by the State; 12 persons and two alternates were selected as jurors and the rest were excused on personal grounds, e. g., deafness, doctor's orders, etc. An examination of the 2,783-page voir dire record shows that 370 prospective jurors or almost 90% of those examined on the point (10 members of the panel were never asked whether or not they had any opinion) entertained some opinion as to guilt - ranging in intensity from mere suspicion to absolute certainty. A number admitted that, if they were in the accused's place in the dock and he in theirs on the jury with their opinions, they would not want him on a jury.Here the "pattern of deep and bitter prejudice" shown to be present throughout the community, cf. Stroble v. California, , was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. See Delaney v. United States, 199 F.2d 107. Where one's life is at stake - and accounting for the frailties of human nature - we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief. One said that he "could not ... give the defendant the benefit of the doubt that he is innocent." Another stated that he had a "somewhat" certain fixed opinion as to petitioner's guilt. No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but the psychological impact requiring such a declaration before one's fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, "You can't forget what you hear and see." With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt. Stroble v. California, ; Shepherd v. Florida, (concurring opinion); Moore v. Dempsey, .Petitioner's detention and sentence of death pursuant to the void judgment is in violation of the Constitution of the United States and he is therefore entitled to be freed therefrom. The judgments of the Court of Appeals and the District Court are vacated and the case remanded to the latter. However, petitioner is still subject to custody under the indictment filed by the State of Indiana in the Circuit Court of Gibson County charging him with murder in the first degree and may be tried on this or another indictment. The District Court has power, in a habeas corpus proceeding, to "dispose of the matter as law and justice require." 28 U.S.C. 2243. Under the predecessors of this section, "this Court has often delayed the discharge of the petitioner for such reasonable time as may be necessary to have him taken before the court where the judgment was rendered, that defects which render discharge necessary may be corrected." Mahler v. Eby, . Therefore, on remand, the District Court should enter such orders as are appropriate and consistent with this opinion, cf. Grandsinger v. Bovey, 153 F. Supp. 201, 240, which allow the State a reasonable time in which to retry petitioner. Cf. Chessman v. Teets, ; Dowd v. Cook, ; Tod v. Waldman, . Vacated and remanded. |
6 | [Footnote *] Together with No. 84-1509, Seattle-First National Bank v. Financial Institution Employees of America, Local 1182, Chartered by United Food & Commercial Workers International Union, AFL-CIO, et al., also on certiorari to the same court. In 1970, the National Labor Relations Board (Board) certified the Firstbank Independent Employees Association (Firstbank) as the collective-bargaining representative of a bargaining unit consisting of the employees of Seattle-First National Bank (SeaFirst), and successive collective-bargaining agreements were negotiated. In 1978, in an election in which only union members were allowed to vote, Firstbank voted to affiliate with an international union and changed its name to the Financial Institution Employees of America, Local 1182 (FIEA). FIEA then petitioned the Board to amend its certification to reflect this change. After initially granting the petition and holding that SeaFirst had committed an unfair labor practice by refusing to recognize the amended certification or to bargain with FIEA, the Board, on reconsideration, held that, because nonunion employees were not allowed to vote in the affiliation election, the election did not meet minimal "due process" standards and that therefore the affiliation was invalid. Accordingly, the Board dismissed FIEA's unfair labor practice charge and vacated the amended certification. The Court of Appeals granted FIEA's petition for review of the Board's decision and remanded the case, holding that the Board's requirement that nonunion employees be allowed to vote on affiliation questions was irrational and inconsistent with the National Labor Relations Act (Act).Held: The Board exceeded its authority under the Act in requiring that nonunion employees be allowed to vote for affiliation before it would order the employer to bargain with the affiliated union. Pp. 198-209. (a) Such requirement dramatically changes the scheme under which the Board's practice has been to grant an independent union's petition to amend the union's certification to reflect a name change resulting from affiliation with a national or international union if the Board found that union members had an adequate opportunity to vote on affiliation and that there was substantial "continuity" between the preaffiliation and postaffiliation union. Pp. 198-201. (b) Under the Act, the certified union must be recognized as the exclusive bargaining representative of all employees in the bargaining unit, and the Board cannot discontinue that recognition without determining that the affiliation of that union with another union raises a question of representation and, if so, conducting an election to decide whether the certified union is still the choice of a majority of the unit. Here, by refusing either to amend FIEA's certification or to order SeaFirst to bargain, the Board effectively circumvented the decertification procedures provided for by the Act. Moreover, the Board's requirement that nonunion employees be allowed to vote in the affiliation election violated the policy Congress incorporated into the Act against outside interference in union decisionmaking. Pp. 201-204. (c) Employees' dissatisfaction with representation is not a reason for requiring the union to allow nonunion employees to vote on union matters like affiliation. Rather, the Act allows union members to control the shape and direction of the union. Dissatisfaction with the decision union members make may be tested by a Board-conducted representation election only if it is unclear whether the recognized union retains majority support. Any distinction between affiliation and other changes in a union's organization and structure does not justify the Board's meddling in the union's internal affairs. Pp. 205-208. (d) The Board's new rule contravenes the Act's assumption that stable bargaining relationships are best maintained by allowing an affiliated union to continue representing a bargaining unit unless the Board finds that the affiliation raises a question of representation. Such rule effectively gives the employer the power to veto an independent union's decision to affiliate, thereby allowing the employer to interfere directly with union decisionmaking that Congress intended to insulate from outside interference. Pp. 208-209. 752 F.2d 356, affirmed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BURGER, C. J., filed an opinion concurring in the judgment, post, p. 210.Norton J. Come argued the cause for petitioner in No. 84-1493. With him on the briefs were Solicitor General Fried, Linda Sher, and Patrick J. Szymanski.Mark A. Hutcheson argued the cause for petitioner in No. 84-1509. With him on the briefs was Stephen M. Rummage.Laurence Gold argued the cause for respondents in both cases. With him on the brief were George Murphy, Marsha S. Berzon, Michael Rubin, and David Silberman.Fn Fn Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Edward B. Miller and Stephen A. Bokat; for the National Right to Work Legal Defense Foundation by Raymond J. LaJeunesse, Jr.; and for the Legal Foundation of America by Jean Fleming Powers and David Crump.JUSTICE BRENNAN delivered the opinion of the Court.The question for decision in these cases is whether a rule of the National Labor Relations Board that requires that nonunion employees be permitted to vote in a certified union's decision whether to affiliate with another union is consistent with the National Labor Relations Act.IIn 1970, the Board certified the Firstbank Independent Employees Association (Firstbank) as the collective-bargaining representative of a bargaining unit consisting of the employees of petitioner Seattle-First National Bank (SeaFirst). Firstbank and SeaFirst subsequently negotiated successive collective-bargaining agreements, the most recent of which expired in 1977. In 1978, Firstbank voted to affiliate with the Retail Clerks International Union, AFL-CIO. Under Firstbank's constitution, only union members in good standing could vote in the election. The union members voted in favor of affiliation by a margin of 1,206 - 774. Upon affiliation, Firstbank changed its name to the Financial Institution Employees of America, Local 1182 (FIEA), chartered by the Retail Clerks International Union, AFL-CIO. FIEA then petitioned the Board to amend its certification to reflect this change. SeaFirst challenged the petition, arguing that affiliation with the Retail Clerks had substantially changed the union, that nonunion employees should have been allowed to vote on whether to affiliate, and that the union had not followed its own constitution in establishing voter eligibility standards. The Board rejected these arguments and amended Firstbank's certification to name FIEA as the employees' bargaining representative. Seattle-First National Bank, 241 N. L. R. B. 751 (1979).1 SeaFirst refused to recognize the amended certification or to bargain with FIEA. The Board sustained FIEA's charges and held that SeaFirst had committed an unfair labor practice in violation of 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. 158(a)(1) and 158(a)(5), and ordered it to bargain.2 Seattle-First National Bank, 245 N. L. R. B. 700 (1979). SeaFirst petitioned the Court of Appeals for the Ninth Circuit for review of the Board's order, and the Board cross-applied for enforcement. Before the Court of Appeals rendered its decision, the Board moved for remand of the case to it, and the court granted the motion. Seattle-First National Bank v. NLRB, Nos. 79-7515, 80-7004 (June 27, 1980); see n. 4, infra.On remand, the Board notified the parties of its decision on its own motion to reconsider its earlier decision. On reconsideration, the Board held that, because nonunion employees were not allowed to vote in the affiliation election, the election did not meet minimal "due process" standards, and therefore that the affiliation was invalid. Accordingly, the Board dismissed FIEA's unfair labor practice charge and vacated the amended certification. Seattle-First National Bank, 265 N. L. R. B. 426 (1982).FIEA petitioned the Court of Appeals for the Ninth Circuit for review of the Board's decision. The Court of Appeals, in a 2-1 decision, granted the petition and remanded the case. 752 F.2d 356 (1984). The court held that the Board's requirement that nonunion employees be allowed to vote on affiliation questions was irrational and inconsistent with the Act for three reasons. First, the Board's rule intruded upon the union's internal affairs - here a totally unjustified intrusion because the Board had not determined that affiliation had substantially changed the union or eroded its majority support - and violated the "longstanding federal labor policy of avoiding unnecessary interference in internal union affairs." Id., at 362. Second, the Board's rule was "inconsistent with the strong national policy of maintaining stability in the bargaining representative." Id., at 364. Pursuant to that policy, Congress and the Board had restricted the opportunities for employers and employees to challenge a certified union's status as bargaining representative,3 and the Board's new rule did not further but breached the policy, since it effectively decertified the union without a Board determination that affiliation had undermined the union's majority support. Finally, the Board's rule was irrational, because the interests of nonunion employees were adequately protected under existing procedures, and because the Board's reasoning did not support the rule.The holding of the Court of Appeals conflicts with contrary holdings of the Courts of Appeals for the Fifth and Seventh Circuits upholding the Board's rule. Local Union No. 4-14 v. NLRB, 721 F.2d 150, 152-153 (CA5 1983); United Retail Workers Union, Local 881 v. NLRB, 774 F.2d 752 (CA7 1985).4 We granted both petitions in this case to to resolve the conflict. . We affirm. IISection 7 of the Act guarantees employees the right "to bargain collectively through representatives of their own choosing," 29 U.S.C. 157, and the Board is empowered to determine representation on petition of employees or the employer. 29 U.S.C. 159(c)(1)(A)(i), 159(c)(1)(B). In either case, the Board investigates the petition and holds a hearing if it has reasonable cause to believe that a "question of representation" exists, 29 U.S.C. 159(c), and directs a representation election by secret ballot to settle the question. Ibid. The Board certifies the winning union as the bargaining representative of all of the employees in the bargaining unit. The employer commits an unfair labor practice by refusing to bargain with the employees' certified bargaining representative. 29 U.S.C. 158(a)(5).The Act recognizes that employee support for a certified bargaining representative may be eroded by changed circumstances. In such cases, employees may petition the Board for another election, alleging that the certified representative no longer enjoys majority support. 29 U.S.C. 159(c)(1) (A)(ii); 29 CFR 101.17, 102.60(a) (1985). Similarly, an employer who questions whether a majority of employees continue to support a certified union may petition for another election. 29 U.S.C. 159(c)(1)(B); 29 CFR 101.17, 102.60(a) (1985); see 1 C. Morris, The Developing Labor Law 349 (2d ed. 1983). The employer, however, must "demonstrate by objective considerations that it has some reasonable grounds for believing that the union has lost its majority status." United States Gypsum Co., 157 N. L. R. B. 652, 656 (1966); 29 CFR 101.17 (1985); see 1 Morris, supra. Again, if the Board determines, after investigation and hearing, that a question of representation exists, it directs an election by secret ballot and certifies the result. 29 U.S.C. 159(c).One such change in circumstances is, as here, where an independent union decides to affiliate with a national or international organization.5 In many such cases, the union may also change its name to reflect its new affiliation, and will petition the Board to amend its certification to reflect this name change. 29 CFR 101.17, 102.60(b) (1985). The Board's practice has been to grant such petitions if the Board found that the affiliation satisfied two conditions. First, that union members have had an adequate opportunity to vote on affiliation. North Electric Co., 165 N. L. R. B. 942, 943 (1967). The Board ordinarily required that the affiliation election be conducted with adequate "due process" safeguards, including notice of the election to all members, an adequate opportunity for members to discuss the election, and reasonable precautions to maintain ballot secrecy. E. g., Newspapers Inc., 210 N. L. R. B. 8, 9 (1974), enf'd, 515 F.2d 334 (CA5 1975).6 Second, that there was substantial "continuity" between the pre- and post-affiliation union. The focus of this inquiry was whether the affiliation had substantially changed the union; the Board considered such factors as whether the union retained local autonomy and local officers, and continued to follow established procedures. See Note, supra n. 5, at 445, and nn. 74-82.7 If the organizational changes accompanying affiliation were substantial enough to create a different entity, the affiliation raised a "question concerning representation" which could only be resolved through the Board's election procedure. 1 Morris, supra, at 690; 29 CFR 101.17, 102.60(b) (1985). However, as long as continuity of representation and due process were satisfied, affiliation was considered an internal matter that did not affect the union's status as the employees' bargaining representative, and the employer was obligated to continue bargaining with the reorganized union. 1 Morris, supra, at 690-691; Universal Tool & Stamping Co., 182 N. L. R. B. 254, 259 (1970).8 The Board's new rule dramatically changes this scheme.9 The Board now takes the position that all employees in the bargaining unit - not merely union members - must have the opportunity to participate in the affiliation decision. See Amoco Production Co., 262 N. L. R. B. 1240, 1241 (1982). Unless they are allowed to do so, the Board will not amend the union's certification or require the employer to bargain with the reorganized union. The Board applies this rule even though the organizational changes resulting from the affiliation are not substantial enough to raise a question of representation. See Brief for NLRB 16-17. The Board does not contend that the Act requires that all employees of the bargaining unit, union and nonunion, must be allowed to participate in the affiliation election or that the Act expressly authorizes the Board to impose such requirements. Rather, the Board and the employer defend the Board's new rule on two grounds. First, they assert that the Board's rule is a reasonable means of protecting the bargaining unit employees' right to select a bargaining representative under 7 of the Act. Second, they argue that the rule minimizes industrial strife. We address each argument in turn.IIIAPetitioners argue that the Board should be afforded "a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees," NLRB v. A. J. Tower Co., ; see also 29 U.S.C. 156; NLRB v. Wyman-Gordon Co., ; NLRB v. Waterman S.S. Corp. , and contend that a requirement that all employees be allowed to vote on affiliation is a reasonable means of insuring that a majority of employees consent to representation by the postaffiliation union, and ultimately of protecting the right of all employees to select a bargaining representative. Our cases have previously recognized the Board's broad authority to construe provisions of the Act, and have deferred to Board decisions that are not irrational or inconsistent with the Act. Ford Motor Co. v. NLRB, , 497 (1979); Beth Israel Hospital v. NLRB, ; NLRB v. Iron Workers, . However, the question here is whether the Board's new rule exceeds the Board's statutory authority. Cf. NLRB v. Longshoremen, ; NLRB v. Bildisco & Bildisco, . Deference to the Board "cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption ... of major policy decisions properly made by Congress." American Ship Building Co. v. NLRB, ; see also NLRB v. Insurance Agents, . We hold that the Board's new rule exceeds its authority under the Act.Under the Act, the certified union must be recognized as the exclusive bargaining representative of all employees in the bargaining unit, and the Board cannot discontinue that recognition without determining that the affiliation raises a question of representation and, if so, conducting an election to decide whether the certified union still is the choice of a majority of the unit. 29 U.S.C. 159(c). Of course, as is the case with any organizational and structural change, a new affiliation may substantially change a certified union's relationship with the employees it represents. These changed circumstances may in turn raise a "question of representation," if it is unclear whether a majority of employees continue to support the reorganized union. Thus, in these situations, the affiliation implicates the employees' right to select a bargaining representative, and to protect the employees' interests, the situation may require that the Board exercise its authority to conduct a representation election. 29 U.S.C. 159(c)(1). However, the Board's decision must take into account that "[t]he industrial stability sought by the Act would unnecessarily be disrupted if every union organizational adjustment were to result in displacement of the employer-bargaining representative relationship." Canton Sign Co., 174 N. L. R. B. 906, 909 (1969), enf. denied on other grounds, 457 F.2d 832 (CA6 1972). In many cases, a majority of employees will continue to support the union despite any changes precipitated by affiliation.10 In such situations, affiliation does not necessarily implicate the "selection" of a new bargaining representative. The reorganized union may legitimately claim to succeed as the employees' duly selected bargaining representative, and in that case retains a legitimate interest in continuing to bargain collectively with the employer. The Act balances these competing concerns by authorizing the Board to conduct a representation election only where affiliation raises a question of representation. 29 U.S.C. 159(c). Conversely, where affiliation does not raise a question of representation, the statute gives the Board no authority to act. The Board's new rule upsets the accommodation drawn by the statute by effectively decertifying the reorganized union even where affiliation does not raise a question of representation.Turning to the record in these cases, the Board revoked FIEA's certification and relieved SeaFirst of its obligation to bargain despite the fact, as the Board acknowledges, that it was not sufficient to raise a question of representation that nonunion employees were not allowed to vote in the affiliation election. Brief for NLRB 16-17. Absent a question of representation, FIEA continued to function, as it was entitled to do, as the bargaining representative of the unit, and SeaFirst was obligated to continue bargaining with it. By refusing either to amend FIEA's certification or to order SeaFirst to bargain, the Board effectively circumvented the decertification procedures provided for by statute. Moreover, the Board exceeded its statutory authority by requiring that nonunion employees be allowed to vote in the union's affiliation election. This violated the policy Congress incorporated into the Act against outside interference in union decisionmaking. See Steelworkers v. Sadlowski, ; NLRB v. Boeing Co., ; Scofield v. NLRB, ; NLRB v. Allis-Chalmers Mfg. Co., . Petitioners maintain that this policy must give way to the right of the employees to select a bargaining representative. Cf. Pattern Makers v. NLRB, (union rule barring resignations during a strike contrary to statutory policy of voluntary unionism); NLRB v. Marine Workers, (union rule requiring exhaustion of internal grievance procedures does not preclude Board review). But the Act establishes a specific election procedure to decide whether the employees desire a change in a certified union's representative status. While the Board is charged with responsibility to administer this procedure, the Act gives the Board no authority to require unions to follow other procedures in adopting organizational changes.11 BPetitioners contend that this statutory scheme does not adequately protect the interests of nonunion employees, and that this justifies the Board's new rule. They argue that an affiliation may affect a union's representation of the bargaining unit even if it does not raise a question of representation, but that argument overlooks the fact that a union makes many decisions that "affect" its representation of nonmember employees. It may decide to call a strike, ratify a collective-bargaining agreement, or select union officers and bargaining representatives. Under the Act, dissatisfied employees may petition the Board to hold a representation election, but the Board has no authority to conduct an election unless the effects complained of raise a question of representation. In any event, dissatisfaction with representation is not a reason for requiring the union to allow nonunion employees to vote on union matters like affiliation. Rather, the Act allows union members to control the shape and direction of their organization, and "[n]on-union employees have no voice in the affairs of the union." Allis-Chalmers, 388 U.S., at 191. We repeat, dissatisfaction with the decisions union members make may be tested by a Board-conducted representation election only if it is unclear whether the reorganized union retains majority support.Petitioners concede that a union's organizational and structural changes would not ordinarily justify the Board's meddling in a union's internal affairs, but argue that affiliation is different from other changes because affiliation necessarily changes the union's identity, and because initiation of the change is by the certified union seeking the Board's approval for the affiliation by amendment of its certification or an order on the employer to bargain after affiliation. Neither distinction is persuasive.First, petitioners argue that affiliation differs from other organizational changes because it results in employees being represented by a different organization. See Hamilton Tool Co., 190 N. L. R. B. 571, 576 (1971) (Miller, concurring). But many organizational or structural changes may operate to alter a union's "identity." This would be the case where the union amends its constitution or bylaws, restructures its financial obligations and resources, or alters its jurisdiction. The fact that an affiliation is often accompanied by a formal name change does not serve to distinguish it from other organizational developments. As the Board has recognized, "an affiliation does not create a new organization, nor does it result in the dissolution of an already existing organization." Amoco Production Co., 239 N. L. R. B. 1195 (1979). Rather, the union will determine "whether any administrative or organizational changes are necessary in the affiliating organization." Ibid. If these changes are sufficiently dramatic to alter the union's identity, affiliation may raise a question of representation, and the Board may then conduct a representation election. Otherwise, the statute gives the Board no authority to interfere in the union's affairs.Petitioners next contend that affiliation involves the union's asking the Board to amend its certification or to order the employer to bargain.12 Petitioners assert that the Board therefore has a strong interest in insuring that its own election procedures have not been circumvented before placing its imprimatur on the union's affiliation election. This argument mischaracterizes the nature of the relevant procedures. In amending the union's certification or ordering the employer to bargain, the Board does not "sanction" the union's affiliation. Rather, it signifies only that the reorganized union continues as an ongoing entity that the employer should continue to recognize. By analogy, the fact that the Board may order the employer to bargain with a union that has amended its constitution does not mean that the Board has "sanctioned" the constitutional amendment. In any event, the Board's interest in insuring the integrity of its procedures does not empower it to adopt measures exceeding its statutory authority. If the Board finds that affiliation raises a question of representation "undermining ... the Board's own election and certification procedures," Amoco Production Co., 262 N. L. R. B., at 1241, it can refuse to consider the union's unfair labor practice charge, and is authorized to conduct a representation election. However, it may not condone an employer's refusal to bargain in the absence of a question of representation, and has no authority to prescribe internal procedures for the union to follow in order to invoke the Act's protections.IVThe basic purpose of the National Labor Relations Act is to preserve industrial peace. 29 U.S.C. 151. The Act includes several provisions designed to encourage stable bargaining relationships, e. g., 8(b)(7)(A), 29 U.S.C. 158 (b)(7)(A) (prohibiting recognitional picketing by employees represented by recognized union); 8(b)(7)(B), 29 U.S.C. 158(b) (7)(B) (prohibiting recognitional picketing for one year after election); 9(c)(3), 29 U.S.C. 159(c)(3) (prohibiting second representation election within one year), and the Board has devised rules to achieve the same ends. See n. 3, supra. Petitioners argue that the Board's new rule furthers this policy by introducing a measure of certainty into the bargaining relationship that protects both the employer and the union. By having all employees vote for affiliation, so the argument goes, the employer avoids the possibility of having to bargain with a union that may not represent a majority of the employees. Petitioners submit that the union also benefits from having all employees vote, since it avoids the disruption that would occur if the Board eventually determines that it must hold a new election because the affiliation raises a question of representation. If the employees vote for affiliation, the union can continue to bargain with confidence, since the employer is less likely to challenge the affiliation, and the Board is less likely to find a question of representation. If the employees vote against affiliation, the incumbent union can forgo affiliation and continue to represent the bargaining unit.Absent any statutory framework, the Board's rule might well be a rational means of preserving industrial stability. However, as the Ninth Circuit noted, Congress has already determined "as a matter of national labor policy that bargaining stability and the principle of majority rule may limit the timing of employee challenges to their certified bargaining representative's majority status." 752 F.2d, at 366. The Act assumes that stable bargaining relationships are best maintained by allowing an affiliated union to continue representing a bargaining unit unless the Board finds that the affiliation raises a question of representation. The Board's rule contravenes this assumption, since an employer may invoke a perceived procedural defect to cease bargaining even though the union succeeds the organization the employees chose, the employees have made no effort to decertify the union, and the employer presents no evidence to challenge the union's majority status. Any uncertainty on the employer's part does not relieve him of his obligation to bargain collectively. "If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief ... . To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to [industrial peace]." Brooks v. NLRB, . The Board's rule effectively gives the employer the power to veto an independent union's decision to affiliate, thereby allowing the employer to directly interfere with union decisionmaking Congress intended to insulate from outside interference.We hold that the Board exceeded its authority under the Act in requiring that nonunion employees be allowed to vote for affiliation before it would order the employer to bargain with the affiliated union.13 The judgment of the Court of Appeals is affirmed. The cases are remanded for further proceedings consistent with this opinion. It is so ordered. |
3 | The California Labor Code (Code) authorizes the State to order withholding of payments due a contractor on a public works project if a subcontractor on the project fails to comply with certain Code requirements; permits the contractor, in turn, to withhold similar sums from the subcontractor; and permits the contractor, or his assignee, to sue the awarding body for alleged breach of the contract in not making payment to recover the wages or penalties withheld. After petitioner State Division of Labor Standards Enforcement (DLSE) determined that respondent G & G Fire Sprinklers, Inc. (G & G), as a subcontractor on three public works projects, had violated the Code, it issued notices directing the awarding bodies on those projects to withhold from the contractors an amount equal to the wages and penalties forfeited due to G & G's violations. The awarding bodies withheld payment from the contractors, who in turn withheld G & G's payment. G & G filed a 42 U. S. C. §1983 suit against DLSE and other state petitioners in the District Court, claiming that the issuance of the notices without a hearing deprived it of property without due process in violation of the Fourteenth Amendment. The court granted G & G summary judgment, declared the relevant Code sections unconstitutional, and enjoined the State from enforcing the provisions against G & G. The Ninth Circuit affirmed. This Court granted certiorari, vacated that judgment, and remanded for reconsideration in light of its decision in American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U. S. 40, that the respondents there had no property interest in payment for disputed medical treatment pending review of the treatment's reasonableness and necessity, as authorized by state law. On remand, the Ninth Circuit reinstated its prior judgment and opinion, explaining that G & G's rights were violated not because it was deprived of immediate payment, but because the state statutory scheme afforded no hearing at all. Held: Because state law affords G & G sufficient opportunity to pursue its claim for payment under its contracts in state court, the statutory scheme does not deprive it of due process. In each of this Court's cases relied upon by the Ninth Circuit, the claimant was denied a right by virtue of which he was presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation. See, e.g., United States v. James Daniel Good Real Property, 510 U. S. 43, 62. Unlike those claimants, G & G has not been deprived of any present entitlement. It has been deprived of payment that it contends it is owed under a contract, based on the State's determination that it failed to comply with the contract's terms. That property interest can be fully protected by an ordinary breach-of-contract suit. If California makes ordinary judicial process available to G & G for resolving its contractual dispute, that process is due process. Here, the Code, by allowing a contractor to assign the right of suit, provides a means by which a subcontractor may bring a breach-of-contract suit to recover withheld payments. That damages may not be awarded until the suit's conclusion does not deprive G & G of its claim. Even if G & G could not obtain assignment, it appears that a breach-of-contract suit against the contractor remains available under state common law, although final determination of the question rests in the hands of the California courts. Pp. 5-9.204 F. 3d 941, reversed. Rehnquist, C. J., delivered the opinion for a unanimous Court.ARTHUR S. LUJAN, LABOR COMMISSIONER OF CALIFORNIA, et al., PETITIONERS v. G & GFIRE SPRINKLERS, INC.on writ of certiorari to the united states court of appeals for the ninth circuit[April 17, 2001] Chief Justice Rehnquist delivered the opinion of the Court. The California Labor Code (Code or Labor Code) autho-rizes the State to order withholding of payments due a contractor on a public works project if a subcontractor on the project fails to comply with certain Code requirements. The Code permits the contractor, in turn, to withhold similar sums from the subcontractor. The Court of Appeals for the Ninth Circuit held that the relevant Code provisions violate the Due Process Clause of the Fourteenth Amendment because the statutory scheme does not afford the subcontractor a hearing before or after such action is taken. We granted certiorari, 531 U. S. 924 (2000), and we reverse. Petitioners are the California Division of Labor Standards Enforcement (DLSE), the California Department of Industrial Relations, and several state officials in their official capacities. Respondent G & G Fire Sprinklers, Inc. (G & G) is a fire-protection company that installs fire sprinkler systems. G & G served as a subcontractor on several California public works projects. "Public works" include construction work done under contract and paid for in whole or part by public funds. Cal. Lab. Code Ann. §1720 (West Supp. 2001). The department, board, authority, officer, or agent awarding a contract for public work is called the "awarding body." §1722 (West 1989). The California Labor Code requires that contractors and subcontractors on such projects pay their workers a prevailing wage that is determined by the State. §§1771, 1772, 1773 (West 1989 and Supp. 2001). At the time relevant here, if workers were not paid the prevailing wage, the contractor was required to pay each worker the difference between the prevailing wage and the wages paid, in addition to forfeiting a penalty to the State. §1775 (West Supp. 2001).1 The awarding body was required to include a clause in the contract so stipulating. Ibid. The Labor Code provides that "[b]efore making payments to the contractor of money due under a contract for public work, the awarding body shall withhold and retain therefrom all wages and penalties which have been forfeited pursuant to any stipulation in a contract for public work, and the terms of this chapter." §1727 (West Supp. 2001). If money is withheld from a contractor because of a subcontractor's failure to comply with the Code's provisions, "[i]t shall be lawful for [the] contractor to withhold from [the] subcontractor under him sufficient sums to cover any penalties withheld." §1729 (West 1989).2 The Labor Code permits the contractor, or his assignee, to bring suit against the awarding body "on the contract for alleged breach thereof in not making ... payment" to recover the wages or penalties withheld. §§1731, 1732 (West Supp. 2001). The suit must be brought within 90 days of completion of the contract and acceptance of the job. §1730. Such a suit "is the exclusive remedy of the contractor or his or her assignees." §1732. The awarding body retains the wages and penalties "pending the outcome of the suit." §1731.3 In 1995, DLSE determined that G & G, as a subcontractor on three public works projects, had violated the Labor Code by failing to pay the prevailing wage and failing to keep and/or furnish payroll records upon request. DLSE issued notices to the awarding bodies on those projects, directing them to withhold from the contractors an amount equal to the wages and penalties forfeited due to G & G's violations. The awarding bodies withheld payment from the contractors, who in turn withheld payment from G & G. The total withheld, according to respondent, exceeded $135,000. App. 68. G & G sued petitioners in the District Court for the Central District of California. G & G sought declaratory and injunctive relief pursuant to Rev. Stat. §1979, 42 U. S. C. §1983, claiming that the issuance of withholding notices without a hearing constituted a deprivation of property without due process of law in violation of the Fourteenth Amendment. The District Court granted respondent's motion for summary judgment, declared §§1727, 1730-1733, 1775, 1776(g), and 1813 of the Labor Code unconstitutional, and enjoined the State from enforcing these provisions against respondent. App. to Pet. for Cert. A85-A87. Petitioners appealed. A divided panel of the Court of Appeals for the Ninth Circuit affirmed. G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F. 3d 893, 898 (CA9 1998) (Bradshaw I). The court concluded that G & G "has a property interest in being paid in full for the construction work it has completed," id., at 901, and found that G & G was deprived of that interest "as a result of the state's action," id., at 903. It decided that because subcontractors were "afforded neither a pre- nor post-deprivation hearing when payments [were] withheld," the statutory scheme violated the Due Process Clause of the Fourteenth Amendment. Id., at 904. Following Bradshaw I, we decided American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U. S. 40 (1999), where respondents also alleged a deprivation of property without due process of law, in violation of the Fourteenth Amendment. Sullivan involved a challenge to a private insurer's decision to withhold payment for disputed medical treatment pending review of its reasonableness and necessity, as authorized by state law. We held that the insurer's action was not "fairly attributable to the State," and that respondents therefore failed to satisfy a critical element of their §1983 claim. Id., at 58. We also decided that because state law entitled respondents to reasonable and necessary medical treatment, respondents had no property interest in payment for medical treatment not yet deemed to meet those criteria. Id., at 61. We granted certiorari in Bradshaw I, vacated the judgment of the Court of Appeals, and remanded for reconsideration in light of Sullivan. Bradshaw v. G & G Fire Sprinklers, Inc., 526 U. S. 1061 (1999). On remand, the Court of Appeals reinstated its prior judgment and opinion, again by a divided vote. The court held that the withholding of payments was state action because it was "specifically directed by State officials ... [and] the withholding party has no discretion." G & G Fire Sprinklers, Inc. v. Bradshaw, 204 F. 3d 941, 944 (CA9 2000). In its view, its prior opinion was consistent with Sullivan because it "specifically held that G & G did not have a right to payment of the disputed funds pending the outcome of whatever kind of hearing would be afforded," and "explicitly authorized the withholding of payments pending the hearing." 204 F. 3d, at 943. The court explained that G & G's rights were violated not because it was deprived of immediate payment, but "because the California statutory scheme afforded no hearing at all when state officials directed that payments be withheld." Id., at 943-944. Where a state law such as this is challenged on due process grounds, we inquire whether the State has deprived the claimant of a protected property interest, and whether the State's procedures comport with due process. Sullivan, supra, at 59. We assume, without deciding, that the withholding of money due respondent under its contracts occurred under color of state law, and that, as the Court of Appeals concluded, respondent has a property interest of the kind we considered in Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), in its claim for payment under its contracts. 204 F. 3d, at 943-944. Because we believe that California law affords respondent sufficient opportunity to pursue that claim in state court, we conclude that the California statutory scheme does not deprive G & G of its claim for payment without due process of law. See Logan, supra, at 433 ("[T]he Due Process Clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged"). The Court of Appeals relied upon several of our cases dealing with claims of deprivation of a property interest without due process to hold that G & G was entitled to a reasonably prompt hearing when payments were withheld. Bradshaw I, supra, at 903-904 (citing United States v. James Daniel Good Real Property, 510 U. S. 43 (1993); FDIC v. Mallen, 486 U. S. 230 (1988); Barry v. Barchi, 443 U. S. 55 (1979)). In Good, we held that the Government must afford the owner of a house subject to forfeiture as property used to commit or to facilitate commission of a federal drug offense notice and a hearing before seizing the property. 395 U. S. 337 (1969) (holding that due process requires notice and a hearing before wages may be garnished). In each of these cases, the claimant was denied a right by virtue of which he was presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation. Unlike those claimants, respondent has not been denied any present entitlement. G & G has been deprived of payment that it contends it is owed under a contract, based on the State's determination that G & G failed to comply with the contract's terms. G & G has only a claim that it did comply with those terms and therefore that it is entitled to be paid in full. Though we assume for purposes of decision here that G & G has a property interest in its claim for payment, see supra, at 5-6, it is an interest, unlike the interests discussed above, that can be fully protected by an ordinary breach-of-contract suit. In Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961) (citations omitted), we said:"The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation. ` "[D]ue process," unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.' It is `compounded of history, reason, the past course of decisions ... .' "We hold that if California makes ordinary judicial process available to respondent for resolving its contractual dispute, that process is due process. The California Labor Code provides that "the contractor or his or her assignee" may sue the awarding body "on the contract for alleged breach thereof" for "the recovery of wages or penalties." §§1731, 1732 (West Supp. 2001). There is no basis here to conclude that the contractor would refuse to assign the right of suit to its subcontractor. In fact, respondent stated at oral argument that it has sued awarding bodies in state superior court pursuant to §§1731-1733 of the Labor Code to recover payments withheld on previous projects where it served as a subcontractor. See Tr. of Oral Arg. 27, 40-41, 49-50. Presumably, respondent brought suit as an assignee of the contractors on those projects, as the Code requires. §1732 (West Supp. 2001). Thus, the Labor Code, by allowing assignment, provides a means by which a subcontractor may bring a claim for breach of contract to recover wages and penalties withheld. Respondent complains that a suit under the Labor Code is inadequate because the awarding body retains the wages and penalties "pending the outcome of the suit," §1731, which may last several years. Tr. of Oral Arg. 51. A lawsuit of that duration, while undoubtedly something of a hardship, cannot be said to deprive respondent of its claim for payment under the contract. Lawsuits are not known for expeditiously resolving claims, and the standard practice in breach-of-contract suits is to award damages, if appropriate, only at the conclusion of the case. Even if respondent could not obtain assignment of the right to sue the awarding body under the contract, it appears that a suit for breach of contract against the contractor remains available under California common law. See 1 B. Witkin, Summary of California Law §§791, 797 (9th ed. 1987) (defining breach as the "unjustified or unexcused failure to perform a contract" and describing the remedies available under state law). To be sure, §1732 of the Labor Code provides that suit on the contract against the awarding body is the "exclusive remedy of the contractor or his or her assignees" with respect to recovery of withheld wages and penalties. §1732 (West Supp. 2001). But the remedy is exclusive only with respect to the contractor and his assignees, and thus by its terms not the exclusive remedy for a subcontractor who does not receive assignment. See, e.g., J & K Painting Co., Inc. v. Bradshaw, 45 Cal. App. 4th 1394, 1402, 53 Cal. Rptr. 2d 496, 501 (1996) (allowing subcontractor to challenge Labor Commissioner's action by petition for a writ of the mandate). In J & K Painting, the California Court of Appeal rejected the argument that §1732 requires a subcontractor to obtain an assignment and that failure to do so is "fatal to any other attempt to secure relief." Id., at 1401, n. 7, 53 Cal. Rptr. 2d, at 501, n. 7. The Labor Code does not expressly impose such a requirement, and that court declined to infer an intent to "create remedial exclusivity" in this context. Ibid. It thus appears that subcontractors like respondent may pursue their claims for payment by bringing a standard breach-of-contract suit against the contractor under California law. Our view is necessarily tentative, since the final determination of the question rests in the hands of the California courts, but respondent has not convinced us that this avenue of relief is closed to it. See id., at 1401, and n. 4, 53 Cal. Rptr. 2d, at 500, and n. 4 (noting that the contractor might assert a variety of defenses to the subcontractor's suit for breach of contract without evaluating their soundness). As the party challenging the statutory withholding scheme, respondent bears the burden of demonstrating its unconstitutionality. Cf. INS v. Chadha, 462 U. S. 919, 944 (1983) (statutes presumed constitutional). We therefore conclude that the relevant provisions of the California Labor Code do not deprive respondent of property without due process oflaw. Accordingly, the judgment of the Court of Appeals is reversed.It is so ordered.FOOTNOTESFootnote 1 The Code also imposes restrictions on recordkeeping and working hours, and at the time relevant here, the contractor was similarly penalized if the contractor or subcontractor failed to comply with them. Cal. Lab. Code Ann. §§1776(a), (b), (g) (West Supp. 2001), 1813 (West 1989). The awarding body was required to include a clause in the contract so stipulating. §§1776(h), 1813.Sections 1775, 1776, and 1813 were subsequently amended to provide that both contractors and subcontractors may be penalized for failure to comply with the Labor Code. §§1775(a), 1776(g), 1813 (West Supp. 2001). Amendments to §1775 also state that either the contractor or the subcontractor may pay workers the difference between the prevailing wage and wages paid. §1775(a).Footnote 2 Amendments to the Labor Code effective July 1, 2001, impose additional requirements on contractors. See §1727(b) (West Supp. 2001) (contractor shall withhold money from subcontractor at request of Labor Commissioner in certain circumstances); §1775(b)(3) (contractor shall take corrective action to halt subcontractor's failure to pay prevailing wages if aware of the failure or be subject to penalties).Footnote 3 Sections 1730-1733 of the Code have been repealed, effective July 1, 2001. Section 1742 has replaced them. It provides that "[a]n affected contractor or subcontractor may obtain review of a civil wage and penalty assessment [under the Code] by transmitting a written request to the office of the Labor Commissioner." §1742(a). The contractor or subcontractor is then entitled to a hearing before the Director of Industrial Relations, who shall appoint an impartial hearing officer. Within 45 days of the hearing, the director shall issue a written decision affirming, modifying, or dismissing the assessment. A contractor or subcontractor may obtain review of the director's decision by filing a petition for a writ of the mandate in state superior court. §§1742(b), (c). These provisions are not yet in effect and these procedures were not available to respondent at the time of the withholding of payments at issue here. |
8 | A private motor carrier sued in the Court of Claims to recover just compensation for an alleged temporary taking of its property and business by the United States under Executive Order No. 9462. While the case was pending, the Motor Carrier Claims Commission Act was enacted; and the motor carrier timely filed its claim with the Commission before the Court of Claims entered judgment. Held: This deprived the Court of Claims of jurisdiction to enter judgment in the case. Pp. 319-320. 115 Ct. Cl. 733, 88 F. Supp. 278, vacated and remanded.[Footnote *] Together with No. 177, Wheelock Bros., Inc. v. United States, also on certiorari to the same court.Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp, Paul A. Sweeney and Melvin Richter.Max Siskind argued the cause for Wheelock Bros., Inc. With him on the brief were Franklin N. Parks and Leo B. Parker.Brent O. Stordahl and Nils A. Boe filed a brief for Robert G. May, as amicus curiae, in support of Wheelock Bros., Inc.PER CURIAM.Wheelock Bros., Inc., a private motor carrier, sued in the Court of Claims to recover just compensation for an alleged temporary taking of its properties and business by the United States pursuant to Executive Order No. 9462. 9 Fed. Reg. 10071 (1944). The Court of Claims entered judgment awarding Wheelock Bros., Inc., just compensation in an amount less than that claimed. 115 Ct. Cl. 733, 88 F. Supp. 278 (1950). We granted certiorari on the petitions of both parties. .While the action was pending in the Court of Claims, Congress passed the Motor Carrier Claims Commission Act,** providing that that Commission "shall hear and determine, according to law, existing claims against the United States arising out of the taking by the United States of possession or control of any of the motor-carrier transportation systems described in Executive Order Numbered 9462 ... ." Section 2. Within the time provided in the Act and before entry of judgment in the Court of Claims, Wheelock Bros., Inc., filed its claim with the Commission.At the threshold, we are met with the question whether the Court of Claims had jurisdiction to enter judgment in this case. Congress, in 6 of the Motor Carrier Claims Commission Act, expressly provided: "The jurisdiction of the Commission over claims presented to it as provided in section 2 of this Act shall be exclusive; but nothing in this Act shall prevent any person who does not elect to present his claim to the Commission from pursuing any other remedy available to him." Wheelock Bros., Inc., by filing its claim with the Commission, did elect to present it to that tribunal. The Commission's jurisdiction over the claim being "exclusive," the Court of Claims was without jurisdiction to enter judgment in this case. For this reason, the judgment below is vacated and the case is remanded to the Court of Claims with instructions to dismiss the claim in that court. It is so ordered.[Footnote **] 62 Stat. 1222 (1948), as amended, 62 Stat. 1289, 1290 (1948), 63 Stat. 80 (1949). |
8 | In a multiple claims action, the Federal District Court expressly directed that judgment be entered for the defendant on two, but less than all, of the claims presented. The court also expressly determined that there was no just reason for delay in making the entry. On appeal from that judgment, the Court of Appeals upheld its jurisdiction and denied a motion to dismiss, relying upon 28 U.S.C. 1291 and Rule 54 (b) of the Federal Rules of Civil Procedure, as amended in 1946. Held: The appellate jurisdiction of the Court of Appeals is sustained, and its judgment denying the motion to dismiss the appeal for lack of appellate jurisdiction is affirmed. Pp. 428-438. (a) Rule 54 (b), as amended, does not relax the finality required of each decision, as an individual claim, to render it appealable, but does provide a practical means of permitting an appeal to be taken from one or more final decisions on individual claims, in multiple claims actions, without waiting for final decisions to be rendered on all the claims in the case. Pp. 434-435. (b) The application of the amended rule is limited expressly to multiple claims actions in which "one or more but less than all" of the multiple claims have been finally decided and are found otherwise to be ready for appeal. P. 435. (c) The amended rule requires that for "one or more but less than all" multiple claims to become appealable, the District Court must make both "an express determination that there is no just reason for delay" and "an express direction for the entry of judgment." Pp. 435-436. (d) In this case, each of the claims dismissed was a "claim for relief" within the meaning of Rule 54 (b), and the dismissal of each constituted a "final decision" on the individual claim. P. 436. (e) The claims adjudged by the District Court could properly be decided independently of the claims which the court did not adjudge. P. 436. (f) Amended Rule 54 (b) does not constitute an unauthorized extension of 28 U.S.C. 1291, since the District Court cannot, in the exercise of its discretion, treat as "final" that which is not "final" within the meaning of 1291. Pp. 436-437. (g) In the exercise of its discretion under amended Rule 54 (b), the District Court may release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions; and any abuse of that discretion is reviewable by the Court of Appeals. P. 437. (h) Rule 54 (b), as amended, does not supersede any statute controlling appellate jurisdiction; and it scrupulously recognizes the statutory requirement of a "final decision" under 1291 as a basic requirement for an appeal to the Court of Appeals. P. 438. (i) Rule 54 (b), as amended, is valid in both its "affirmative" and "negative" aspects. The rule is not rendered invalid because, through its "affirmative" operation, a final decision may be released for appeal to the Court of Appeals at a time when, under prior law, it would not have been appealable. P. 438. 218 F.2d 295, affirmed.Walter J. Rockler argued the cause and filed a brief for petitioner.Edward I. Rothschild argued the cause for respondents. With him on a brief for Mackey, respondent, was John Paul Stevens.MR. JUSTICE BURTON delivered the opinion of the Court.This action, presenting multiple claims for relief, was brought by Mackey and another in the United States District Court for the Northern District of Illinois, Eastern Division, in 1953. The court expressly directed that judgment be entered for the defendant, Sears, Roebuck & Co., on two, but less than all, of the claims presented. It also expressly determined that there was no just reason for delay in making the entry. After Mackey's notice of appeal from that judgment to the Court of Appeals for the Seventh Circuit, Sears, Roebuck & Co. moved to dismiss the appeal for lack of appellate jurisdiction. The Court of Appeals upheld its jurisdiction and denied the motion, relying upon 28 U.S.C. 1291 and Rule 54 (b) of the Federal Rules of Civil Procedure, as amended in 1946. 218 F.2d 295. Because of the importance of the issue in determining appellate jurisdiction and because of a conflict of judicial views on the subject,1 we granted certiorari. . For the reasons hereafter stated, we sustain the Court of Appeals and its appellate jurisdiction.Although we are here concerned with the present appealability of the judgment of the District Court and not with its merits, we must examine the claims stated in the complaint so as to consider adequately the issue of appealability.The complaint contains six counts. We disregard the fifth because it has been abandoned and the sixth because it duplicates others. The claims stated in Counts I and II are material and have been dismissed without leave to amend. The claim contained in Count III and that in amended Count IV are at issue on the answers filed by Sears, Roebuck & Co. The appeal before us is from a judgment striking out Counts I and II without disturbing Counts III and IV, and the question presented is whether such a judgment is presently appealable when the District Court, pursuant to amended Rule 54 (b), has made "an express determination that there is no just reason for delay" and has given "an express direction for the entry of judgment."In Count I, Mackey, a citizen of Illinois, and Time Saver Tools, Inc., an Illinois corporation owned by Mackey, are the original plaintiffs and the respondents here. Sears, Roebuck & Co., a New York corporation doing business in Illinois, is the original defendant and the petitioner here. Mackey charges Sears with conduct violating the Sherman Antitrust Act in a manner prejudicial to three of Mackey's commercial ventures causing him $190,000 damages, for which he seeks $570,000 as treble damages. His first charge is unlawful destruction by Sears, since 1949, of the market for nursery lamps manufactured by General Metalcraft Company, a corporation wholly owned by Mackey. Mackey claims that this caused him a loss of $150,000. His second charge is unlawful interference by Sears, in 1952, with Mackey's contract to sell, on commission, certain tools and other products of the Vascoloy-Ramet Corporation, causing Mackey to lose $15,000. His third charge is unlawful destruction by Sears, in 1952, of the market for a new type of carbide-tipped lathe bit and for other articles manufactured by Time Saver Tools, Inc., resulting in a loss to Mackey of $25,000. Mackey combines such charges with allegations that Sears has used its great size to monopolize commerce and restrain competition in these fields. He asks for damages and equitable relief.In Count II, Mackey claims federal jurisdiction by virtue of diversity of citizenship. He incorporates the allegations of Count I as to the Metalcraft transactions and asks for $250,000 damages for Sears' willful destruction of the business of Metalcraft, plus $50,000 for Mackey's loss on obligations guaranteed by him.In Count III, Mackey seeks $75,000 in a common-law proceeding against Sears for unlawfully inducing a breach of his Vascoloy commission contract.In Count IV, Time Saver seeks $200,000 in a common-law proceeding against Sears for unlawfully destroying Time Saver's business by unfair competition and patent infringement.The jurisdiction of the Court of Appeals to entertain Mackey's appeal from the District Court's judgment depends upon 28 U.S.C. 1291, which provides that "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States ... ." (Emphasis supplied.)If Mackey's complaint had contained only Count I, there is no doubt that a judgment striking out that count and thus dismissing, in its entirety, the claim there stated would be both a final and an appealable decision within the meaning of 1291. Similarly, if his complaint had contained Counts I, II, III and IV, there is no doubt that a judgment striking out all four would be a final and appealable decision under 1291. The controversy before us arises solely because, in this multiple claims action, the District Court has dismissed the claims stated in Counts I and II, but has left un adjudicated those stated in Counts III and IV.2 Before the adoption of the Federal Rules of Civil Procedure in 1939, such a situation was generally regarded as leaving the appellate court without jurisdiction of an attempted appeal. It was thought that, although the judgment was a final decision on the respective claims in Counts I and II, it obviously was not a final decision of the whole case, and there was no authority for treating anything less than the whole case as a judicial unit for purposes of appeal.3 This construction of the judicial unit was developed from the common law which had dealt with litigation generally less complicated than much of that of today.4 With the Federal Rules of Civil Procedure, there came an increased opportunity for the liberal joiner of claims in multiple claims actions. This, in turn, demonstrated a need for relaxing the restrictions upon what should be treated as a judicial unit for purposes of appellate jurisdiction. Sound judicial administration did not require relaxation of the standard of finality in the disposition of the individual adjudicated claims for the purpose of their appealability. It did, however, demonstrate that, at least in multiple claims actions, some final decisions, on less than all of the claims, should be appealable without waiting for a final decision on all of the claims. Largely to meet this need, in 1939, Rule 54 (b) was promulgated in its original form through joint action of Congress and this Court.5 It read as follows: "(b) JUDGMENT AT VARIOUS STAGES. When more than one claim for relief is presented in an action, the court at any stage, upon a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim, may enter a judgment disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of and the action shall proceed as to the remaining claims. In case a separate judgment is so entered, the court by order may stay its enforcement until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered." It gave limited relief. The courts interpreted it as not relaxing the requirement of a "final decision" on each individual claim as the basis for an appeal, but as authorizing a limited relaxation of the former general practice that, in multiple claims actions, all the claims had to be finally decided before an appeal could be entertained from a final decision upon any of them.6 Thus, original Rule 54 (b) modified the single judicial unit theory but left unimpaired the statutory concept of finality prescribed by 1291. However, it was soon found to be inherently difficult to determine by any automatic standard of unity which of several multiple claims were sufficiently separable from others to qualify for this relaxation of the unitary principle in favor of their appealability. The result was that the jurisdictional time for taking an appeal from a final decision on less than all of the claims in a multiple claims action in some instances expired earlier than was foreseen by the losing party. It thus became prudent to take immediate appeals in all cases of doubtful appealability and the volume of appellate proceedings was undesirably increased.Largely to overcome this difficulty, Rule 54 (b) was amended, in 1946, to take effect in 1948.7 Since then it has read as follows: "(b) JUDGMENT UPON MULTIPLE CLAIMS. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims." (Emphasis supplied.) In this form, it does not relax the finality required of each decision, as an individual claim, to render it appealable, but it does provide a practical means of permitting an appeal to be taken from one or more final decisions on individual claims, in multiple claims actions, without waiting for final decisions to be rendered on all the claims in the case. The amended rule does not apply to a single claim action nor to a multiple claims action in which all of the claims have been finally decided. It is limited expressly to multiple claims actions in which "one or more but less than all" of the multiple claims have been finally decided and are found otherwise to be ready for appeal.To meet the demonstrated need for flexibility, the District Court is used as a "dispatcher." It is permitted to determine, in the first instance, the appropriate time when each "final decision" upon "one or more but less than all" of the claims in a multiple claims action is ready for appeal. This arrangement already has lent welcome certainty to the appellate procedure. Its "negative effect" has met with uniform approval. The effect so referred to is the rule's specific requirement that for "one or more but less than all" multiple claims to become appealable, the District Court must make both "an express determination that there is no just reason for delay" and "an express direction for the entry of judgment." A party adversely affected by a final decision thus knows that his time for appeal will not run against him until this certification has been made.8 In the instant case, the District Court made this certification, but Sears, Roebuck & Co. nevertheless moved to dismiss the appeal for lack of appellate jurisdiction under 1291. The grounds for such a motion ordinarily might be (1) that the judgment of the District Court was not a decision upon a "claim for relief," (2) that the decision was not a "final decision" in the sense of an ultimate disposition of an individual claim entered in the course of a multiple claims action, or (3) that the District Court abused its discretion in certifying the order.In the case before us, there is no doubt that each of the claims dismissed is a "claim for relief" within the meaning of Rule 54 (b), or that their dismissal constitutes a "final decision" on individual claims. Also, it cannot well be argued that the claims stated in Counts I and II are so inherently inseparable from, or closely related to, those stated in Counts III and IV that the District Court has abused its discretion in certifying that there exists no just reason for delay. They certainly can be decided independently of each other.Petitioner contends that amended Rule 54 (b) attempts to make an unauthorized extension of 1291. We disagree. It could readily be argued here that the claims stated in Counts I and II are sufficiently independent of those stated in Counts III and IV to satisfy the requirements of Rule 54 (b) even in its original form. If that were so, the decision dismissing them would also be appealable under the amended rule. It is nowhere contended today that a decision that would have been appealable under the original rule is not also appealable under the amended rule, provided the District Court makes the required certification. While it thus might be possible to hold that in this case the Court of Appeals had jurisdiction under original Rule 54 (b), there at least would be room for argument on the issue of whether the decided claims were separate and independent from those still pending in the District Court.9 Thus the instant case affords an excellent illustration of the value of the amended rule which was designed to overcome that difficulty. Assuming that the requirements of the original rule are not met in this case, we nevertheless are enabled to recognize the present appellate jurisdiction of the Court of Appeals under the amended rule. The District Court cannot, in the exercise of its discretion, treat as "final" that which is not "final" within the meaning of 1291. But the District Court may, by the exercise of its discretion in the interest of sound judicial administration, release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. The timing of such a release is, with good reason, vested by the rule primarily in the discretion of the District Court as the one most likely to be familiar with the case and with any justifiable reasons for delay. With equally good reason, any abuse of that discretion remains reviewable by the Court of Appeals.Rule 54 (b), in its original form, thus may be said to have modified the single judicial unit practice which had been developed by court decisions. The validity of that rule is no longer questioned. In fact, it was applied by this Court in Reeves v. Beardall, , without its validity being questioned. Rule 54 (b), in its amended form, is a comparable exercise of the rulemaking authority of this Court. It does not supersede any statute controlling appellate jurisdiction. It scrupulously recognizes the statutory requirement of a "final decision" under 1291 as a basic requirement for an appeal to the Court of Appeals. It merely administers that requirement in a practical manner in multiple claims actions and does so by rule instead of by judicial decision. By its negative effect, it operates to restrict in a valid manner the number of appeals in multiple claims actions.We reach a like conclusion as to the validity of the amended rule where the District Court acts affirmatively and thus assists in properly timing the release of final decisions in multiple claims actions. The amended rule adapts the single judicial unit theory so that it better meets the current needs of judicial administration. Just as Rule 54 (b), in its original form, resulted in the release of some decisions on claims in multiple claims actions before they otherwise would have been released,10 so amended Rule 54 (b) now makes possible the release of more of such decisions subject to judicial supervision. The amended rule preserves the historic federal policy against piecemeal appeals in many cases more effectively than did the original rule.11 Accordingly, the appellate jurisdiction of the Court of Appeals is sustained,12 and its judgment denying the motion to dismiss the appeal for lack of appellate jurisdiction is Affirmed. |
0 | Rehearing Denied Oct. 11, 1948.[ Shapiro v. United States ], 3] Mr. Bernard Tomson, of New York City, for Petitioner. Mr. Philip B. Perlman, Sol. Gen., of Washington, D.C., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. Petitioner was tried on charges of having made tie-in sales in violation of regulations under the Emergency Price Control Act. 1 A plea in bar, claiming immunity from prosecution based on 202(g)2 of the Act, was , 4] overruled by the trial judge; judgment of conviction followed and was affirmed on appeal, 2 Cir., 159 F.2d 890. A contrary conclusion was reached by the district judge in United States v. Hoffman, . Because this conflict involves an important question of statutory construction, these cases were brought here and heard together. Additional minor considerations involved in the Hoffman case are dealt with in a separate opinion. The petitioner, a wholesaler of fruit and produce, on September 29, 1944, was served with a subpoena duces tecum and ad testificandum issued, by the Price Administrator, under authority of the Emergency Price Control Act. The subpoena directed petitioner to appear before disignated enforcement attorneys of the Office of Price Administration and to produce 'all duplicate sales invoices, sales books, ledgers, inventory records, contracts ad records relating to the sale of all commodities from September 1st, 1944, to September 28, 1944.' In compliance with the subpoena, petitioner appeared and, after being sworn, was requested to turn over the subpoenaed records. Petitoner's counsel inquired whether petitioner was being granted immunity 'as to any and all matters for information obtained as a result of the investigation and examination of these records.' The presiding official stated that the 'witness is entitld to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept , 5] pursuant to M.P.R.'s 271 and 426.'3 Petitioner thereupon produced the records, but claimed constitutional privilege. The plea in bar alleged that the name of the purchaser in the transactions involved in the information appeared in the subpoenaed sales invoices and other similar documents. And it was alleged that the Office of Price Administration had used the name and other unspecified leads obtained from these documents to search out evidence of the violations, which had occurred in the preceding year. The Circuit Court of Appeals ruled that the records which petitioner was compelled to produce were records required to be kept by a valid regulation under the Price Control Act; that thereby they became public documents, as to which no constitutional privilege against self- incrimination attaches; that accordingly the immunity of 202(g) did not extend to the production of these records and the plea in bar was properly overruled by the trial court. 2 Cir., 159 F.2d 890. It should be observed at the outset that the decision in the instant case turns on the construction of a com- , 6] pulsory testimony-immunity provision which incorporates by reference the Compulsory Testimony Act of 1893. This provision, in conjunction with broad record-keeping requirements, has been included not merely in a temporary wartime measure but also, in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government. 4 , 7] It is contended that a broader construction of the scope of the immunity provision than that approved by the Circuit Court of Appeals would be more consistent with the congressional aim, in conferring investigatory powers upon the Administrator, to secure prompt disclosure of books and records of the private enterprises subjected to OPA regulations. In support of this contention, it is urged that the language and legislative history of the Act indicate nothing more than that 202 was included for the purpose of 'obtaining information' and that nothing in that history throws any light upon the scope of the immunity afforded by subsection(g). We cannot agree with these contentions. For, thr language of the statute and its legislative history, viewed against the background of settled judicial construction of the immunity provision, indicate that Congress required records to be kept as a means of enforcing the statute and did not intend to frustrate the use of those records for enforcement action by granting an immunity bonus to individuals compelled to disclose their required records to the Administrator. , 8] The very language of 202(a) discloses that the record-keeping and inspection requirements were designed not merely to 'obtain information' for assistance in prescribing regulations or orders under the statute, but also to aid 'in the administration and enforcement of this Act and regulations, orders, and price schedules thereunder.'5 The legislative history of 202 casts even stronger light on the meaning of the words used in that section. On July 30, 1941, the President of the United States, in a message to Congress, requested price-control legislation conferring effective authority to curb evasion and bootlegging. 6 Two days later the Price Control Bill was introduced in the House by Representative Steagall, and referred to the Committee on Banking and Currency. As introduced, and as reported out of the Committee on November 7, 1941, the bill included broad investigatory, record-keeping, licensing, and other enforcement powers to be exercised by the Administrator. 7 While it , 9] was before the House, Representative Wolcott on November 28, 1941, offered as a substitute for 201 a series of , 10] amendments, one of which authorized the Administrator 'to subpoena documents and witnesses for the purpose of obtaining information in respect to the establishment of price ceilings, and a review of price ceilings.'8 This amendment was adopted. Thereupon Representative Wolcott moved to strike out as 'redundant' the much broader and far more rigorous provisions in the bill ( 202), which authorized the Administrator to 'require the making and keeping of records and other documents and making of reports,' and to 'obtain or require the furnishing of such information under oath or affirmation or otherwise, as he deems necessary or proper to assist him in prescribing any regulation or order under this act, and in the administration and enforcement of the act, and regulations and orders thereunder.'9 This amendment too was accepted by the House. 10 It is significant to note that the Senate Committee on Banking and Currency began its consideration of the , 11] bill on December 9, 1941, the day after Congress declared the existence of a state of war between this country and the Imperial Government of Japan. Appearing before the Senate Committee in this wartime setting, the proponents of the original measure requested and secured the restoration of the enforcement powers which the House had stricken. 11 They asserted that a major aspect of the investigatory powers contained in the bill as originally drafted was to enable the Administrator to ferret out violations and enforce the law against the violators. 12 And it was pointed out that in striking down the authority originally given the Administrator in the committee bill to require the maintenance of records, the House had substantially stripped him of his investigatory and enforcement powers, 'because no investigatory power can be effective without the right to insist upon the maintenance of records. By the simple device of failing to keep records of pertinent transactions, or by destroying or falsifying such records, a person may violate the Act with impunity and little fear of detection. Especially is this true in the case of price-control legislation, which operates on many diverse industries and commodities, each industry having its own trade practices and methods of operation. , 12] 'The House bill also deprives the Administrator of the power to require reports and to make inspections and to copy documents. By this deprivation the Administrator's supervision over the operation of the act is rendered most difficult. He has no expeditious way of checking on compliance. He is left without ready power to discover violations.'It should not be forgotten that the statute to be administered is an emergency statute. To put teeth into the Price Control Act, it is imperative that the Administrator's investigatory powers be strong, clear, and well adapted to the objective * * *.'13 Emphasis was placed on the restoration of licensing provisions, which the House had deleted from the Price Control Bill as originally drafted. The General Counsel for the OPA contended that licensing was the backbone of enforcement of price schedules and regulations. 14 The , 13] World War I prototype of the Price Control Act, the Lever Act, had contained authority for the President to license the distribution of any necessaries whenever deemed essential 'in order to carry into effect any of the purposes of this Act * * *.'15 It was pointed out that 'The general licensing regulations prescribed under the Lever Act, applicable to all licensees, required the making of reports (rule 1), the permitting of inspection (rule 2), and the keeping of records (rule 3).'16 And it was noted that licensing had been employed in connection with the fuel provisions of the Act 'as a method of obtaining information, of insuring universal compliance, and of enforcing refunds of overcharges and the payment of penalty charges to war charities.' 17 By li- , 14] censing middlemen, 'Violations were readily discovered by examination of the records which each licensee was required to submit.'18 With this background,19 Congress restored licensing powers to the Administrator in the Price Control Bill as , 15] enacted, 205, 50 U.S.C.A.App. 925(f), 50 U.S.C.A.Appendix, 925(f) and provided for the suspension by court action of the license of any person found to have violated any of the provisions of the license or price schedules or other requirements. Nonretail fruit dealers, including petitioner in the present case, were licensed under 9a of Maximum Price Regulation No. 426, 8 F.R. 16411 (1943). It is difficult to believe that Congress, whose attention was invited by the proponents of the Price Control Act to the vital importance of the licensing, recordkeeping and inspection provisions in aiding effetive enforcement of the Lever Act, could possibly have intended 202(g) to proffer a 'gratuity to crime' by granting immunity to custodians of non- privileged records. Nor is it easy to conceive that Congress could have intended private privilege to attach to records whose keeping it authorized the Administrator to require on the express supposition that it was thereby inserting 'teeth' into the Price Control Act since the Administrator, by the use of such records, could readily discover violations, check on compliance, and prevent violations from being committed 'with impunity.' In conformance with these views, the bill as passed by Congress empowered the Administrator to require the making and keeping of records by all persons subject to the statute, and to compel, by legal process, oral testimony of witnesses and the production of documents deemed necessary in the administration and enforcement of the statute and regulations. It also included the immunity proviso, subsection (g) of 202, as to which no special attention seems to have been paid in the debates, although it was undoubtedly included, as it had been in other statutes, as a 'usual administrative provision,'20 intended to fulfill the purpose customarily fulfilled by such a provision. , 16] The inescapable implications of the legislative history related above concerning the other subsections of 202 would appear to be that Congress did not intend the scope of the statutory immunity to be so broad as to confer a bonus for the production of information otherwise obtainable. Moreover, there is a presumption that Congress, in reenacting the immunity provision of the 1893 Act, was aware of the settled judicial construction of the statutory immunity. In adopting the language used in the earlier act, Congress 'must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment.'21 That judicial construction is made up of the doctrines enunciated by this Court in spelling out the non-privileged status of records validly required by law to be kept, in Wilson v. United States, 1911, , Ann.Cas.1912D, 558, and the inapplicability of immunity provisions to non-privileged documents, in Heike v. United States, 1914, , Ann.Cas.1914C, 128. In the former case, Wilson, the president of a corporation, was required by subpoena to produce the corporate books in his custody before a grand jury. He appeared before the grand jury but refused to deliver up the records on the ground that their contents would tend to incriminate him, and claimed privilege under the Fifth Amendment. On review in this Court of the judgment committing him for contempt, Wilson based his defense in part on the theory that he would have been protected in his constitutional privilege against self-incrimination had he been sworn as a witness, and that the government's failure to permit him to be sworn could not deprive him of such protection. 22 This argument was disposed , 17] of by the Court simply on the ground that a corporate officer has no such constitutional privilege as to corporate records in his possession, even though they contain entries made by himself which disclose his crim. Mr. Justice Hughes, announcing the opinion of the Court, based the decision on the reasoning (which this Court recently cited with approval, in Davis v. United States, 1946, , 589, 590, 1259), that'the physical custody of incriminating documents does not of itself protect the custodian against their compulsory production. The question still remains with respect to the nature of the documents and the capacity in which they are held. It may yet appear that they are of a character which subjects them to the scrutiny demanded and that the custodian has voluntarily assumed a duty which overrides his claim of privilege. * * * The principle applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to private papers cannot be maintained.'23 As illustrations of documents meeting this 'required records' test, the Court cited with approval state supreme court decisions that business records kept under requirement of law by private individuals in unincorporated enterprises were "public documents, which the defendant was required to keep, not for his private uses, but for the benefit of the public, and for public , 18] inspection." 24 The non-corporate records treated as public in those cases concerned such individuals as druggists required by statute to keep a record of all sales of intoxicating liquors. 25 The corporate and non-corpo- , 19] rate businesses required by the Price Control Act to keep records embrace a much greater number of enterprises than those similarly regulated by the states and municipalities. But, since it is conceded that the increased scope of regulation under the wartime measure here involved does not render that Act unconstitutional, the rquired records doctrine which this Court approved as applied to non-corporate businessmen in the state cases would appear equally applicable in the case at bar. In the Heike case, this Court, per Holmes, J., laid down a standard for the construction of statutory immunity provisos which clearly requires affirmance of the decision of the circuit court here: '* * * the obvious purpose of the statute is to make evidence available and compulsory that otherwise could not be got. We see no reason for supposing that the act offered a gratuity to crime. It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned.'26 In view of the clear rationale in Wilson, taken together with the ruling in Heike as to how statutory immunity provisos should be construed, the conclusion seems inevitable that Congress must have intended the immunity proviso in the Price Control Act to be coterminous with what would otherwise have been the constitutional privilege of petitioner in the case at bar. , 20] Since he could assert no valid privilege as to the required records here in question, he was entitled to no immunity under the statute thus viewed. The traditional rule that re-enactment of a statute creates a presumption of legislative adoption of previous judicial construction may properly be applied here, since the Court in Heike regarded the 1903 immunity statute, 49 U.S.C.A. 47, there construed as identical, in policy and in the scope of immunity furnished, with the Compulsory Testimony Act of 1893, which has been reenacted by incorporation into the Price Control Act. In addition, scrutiny of the precise wording of 202(g) of the latter statute indicates that the draftsmen of that section went to some pains to ensure that the immunity provided for would be construed by the courts as being so limited. The construction adopted in the Heike decision was rendered somewhat difficult because neither the Compulsory Testimony Act of 1893 nor the immunity proviso in the 1903 Act made any explicit reference to the constitutional privilege against self-incrimination, with whose scope the Court nonetheless held the immunity to be coterminous. Section 202(g), on the other hand, follows a pattern set by the e curities Act of 1933, 15 U.S.C.A. 77a et seq., and expressly refers to that privilege, thus apparently seeking to make it doubly certain that the courts would construe the immunity there granted as no broader than the privilege:'No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 * * * shall apply with respect to any individual who specifically claims such privilege.' A comparison of the precise wording of 202(g) with the wording of immunity provisions contained in earlier , 21] statutes27 readily suggests one function intended by the drafters of 202( g) to be performed by the additional phrases expressly referring to 'privilege'-viz., that of underlining the legislative intention of requiring an exchange of constitutional privilege for immunity, an intent which the Court had previously thought discernable even in the less obvious terms used by the drafters of the earlier statutes. Thus the immunity provisions of the Compulsory Testimony Act can be relied upon here only if the two prerequisites set forth in 202(g) are satisfied: (1) that the person seeking to avail himself of the immunity could actually have been excused, in the absence , 22] of this section from complying with any of its requirements because of his constitutional privilege against self-incrimination, and (2) that the person specifically claim such privilege. Obviously if prerequisite (1) is not fulfilled, the mere fact that the person specifically claims a non- existent privilege was not intended by Congress to entitle him to the benefit of the immunity. And this is so whether the statute be construed with particular reference to its grammer, its historical genesis, or its rational function. Petitioner does not deny that the actual existence of a genuine privilege against self-incrimination is an absolute prerequisite for the attainment of immunity under 202(g) by a corporate officer who has been compelled by subpoena to produce requiredr ecords; and that, under the Heike ruling, the assertion of a claim to such a privilege in connection with records which are in fact non-privileged is unavailing to secure immunity, where the claimant is a corporate officer. But, while conceding that the statute should be so construed where corporate officials are concerned, the petitioner necessarily attributes to Congress the paradoxical intention of awarding immunity in exchange for a claim of privilege as to records of a claimant engaged in non-corporate business, though his business is similarly subjected to governmental price control, and its required records are, under the Wilson rationale, similarly non- privileged. The implausibility of any such interpretation of congressional intent is highlighted by the unquestioned fact that Congress provided for price regulations enforcible against unincorporated entrepreneurs as well as corporate industry. It is also unquestionable that Congress, to ensure that violations of the statute should not go unpunished, required records to be kept of all relevant buying and selling transactions by all individual and corporate business subject to the statute. If these aspects of con- , 23] gressional intention be conceded, it is most difficult to comprehend why Congress should be assumed to have differentiated sub silentio, for purposes of the immunity proviso, between records required to be kept by individuals and records required to be kept by corporations. Such an assumption carries with it the incongruous result that individuals forced to produce records required to be kept for the Administrator's inspection and use in enforcing the price regulations, would be given a bonus of immunity if engaged in non-corporate business, thus rendering the records of non-corporate enterprise virtually useless for enforcement purposes,28 whereas individuals disclosing the very same type of required records but engaged in corporate enterprise, would not be given that bonus. In effect, this is to say that Congress intended the immunity proviso to frustrate a major aim of its statutory requirement of record-keeping and record in- , 24] spection so far as it applies to non-corporate business men, but not so far as it applies to corporate officers. 29 It is contended that to construe the immunity proviso as we have here is to devitalize, if not render meaningless, the phrase 'any requirements' 30 which appears in the opening clause of 202(g): 'No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination * * *.' It is urged that, since 202 includes among its require- , 25] ments the furnishing of information under oath, the making and keeping of records and reports, the inspection and copying of records and other documents, and the appearing and testifying or producing of documents, the immunity provided must cover compliance with any one of these requirements. The short answer to that contention is that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his privilege, were it not for the statutory grant of immunity in exchange for such privilege. 31 The express language of the proviso, as well as its historical background, readily suggests this reasonable interpretation. Even those who oppose this interpretation must and do concede that Congress had no intention of removing the excuse of privilege where the privilege is absent from the outset because the records whose production is ordered and concerning which privilege is asserted are corporate records. If this concession is made, surely logic as well as history requires a similar reading of the proviso in connection with validly required non-corporate records, as to which privilege is similarly absent from the outset. If the contention advanced against our interpretation be valid, the Court must have erred in its construction of the immunity proviso in the Heike case. For, the 1893 Act, 49 U.S.C.A. 46, which it was in effect construing, provides that, 'No person shall be excused , 26] from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission * * * for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted * * * for or on account of any transaction * * * concerning which he may testify, or produce evidence, documentary or otherwise * * *'. Thus the immunity part of the 1893 statute extended to any documentary as well as oral testimony concerning which there might be a claim of privilege. And included among the documents which the immunity-seeker might be compelled to produce were records maintained by common carriers in compliance with the requirements of the Interstate Commerce Act,32 and hence obviously within the definition of public records set forth in the Wilson and Heike decisions. If the reasoning advanced against the interpretation of 202(g) we have proposed were valid, then it might equally well be contended that the Court in the Heike decision devitalized, if not rendered meaningless, the phrase, 'documentary or otherwise' in the immunity section of the 1893 Act. Actually, neither the interpretation as applied in the Heike decision nor as expounded here renders meaningless any of the words in the immunity provision. In each case, the immunity proviso is set forth in conjunction with record-keeping requirements. And in each case, where the immunity provided concerns documents whose production might otherwise be excused on the ground of , 27] privilege, the documents referred to are and writings whose keeping as records has not been required by valid statute or regulation. Of course all oral testimony by individuals can properly be compelled only by exchange of immunity in return for privilege. 33 , 28] The Court in the Heike case was confronted with the further contention that the 1903 immunity statute, which was immediately before him, had been passed when 'there was an imperious popular demand that the inside working of the trusts should be investigated, and that the people and Congress cared so much to secure the necessary evidence that they were willing that some guilty persons should escape, as that reward was necessary to the end.'34 In the light of the express statements in the legislative history of the Price Control Act as to the enforcement role of the investigatory powers, such an argument would hardly be tenable in the present case. Yet even in the Heike case where such an argument had some elements of plausibility, the Court had no difficulty in rejecting it in favor of the Government's contention that 'the statute should be limited as nearly as may be by the boundaries of the consitutional privilege of whih it takes the place.'35 As a final answer, an understanding of the 1893 immunity provision, based on its full historical context, should suffice to explain the limited function contemplated by Congress in incorporating that provision into the 1942 statute. The 1893 provision was enacted merely to provide an immunity sufficiently broad to be an ade- , 29] quate substitute for the constitutional privilege, since previous statutory provision for immunity had been found by the Court in Counselman v. Hitchcock, 1892, , not to be coextensive with the privilege, thus rendering unconstitutional the statutory requirements for compulsory production of privileged documents and oral testimony. 36 The suggestion has been advanced that the scope of the immunity intended by Congress should be ascertained, not by reference to the judicial and legislative history considered above, but by reference to the principle expounded in Federal Trade Commission v. American Tobacco Co., 1924, , 338, 32 A.L.R. 786, of construing a broad grant of statutory authority so as to avoid attributing to Congress 'an intent to defy the Fourth Amendment or even to come so near to doing so as to raise a serious question of constitutional law.' It is interesting to not that Congress, in enacting the Price Control Bill, apparently did intend to rely upon the principle of American Tobacco in circumstances similar to those in which that principle was originally applied: Namely, to insure that the power of inspection or examination would not conflict with the prohibition against unreasonable searches and seizures contained in the Fourth Amendment. Senator Brown, who was chairman of the sub-committee on the Price Control Bill and one of the managers on the part of the Senate , 30] appointed to confer with the House managers on the Senate amendments, expressly stated it to be the view of the conferees that 202(a), which contained broad authorization to the Administrator to 'obtain such information as he deems necessary or proper to assist him' in his statutory duties, was intended solely to empower the Administrator to 'obtain relevant data to enable him properly to discharge his functions, preferably by requiring the furnishing of information under oath or affirmation or otherwise as he may determine. It is not intended, nor is any other provision of the Act intended, to confer any power of inspection or examination which might conflict with the Fourth Amendment of the Constitution of the United States. See opinion of Justice Holmes in Federal Trade Commission v. American Tobacco Co., , 44 S. Ct. 336, 337, 32 A.L.R. 786.'37 It was the abuse of the subpoena power to obtain irrelevant data in the course of a 'fishing expedition' with which the Court was concerned in that case. It is clear that if the Administrator sought to obtain data irrelevant to the effective administration of the statute and if his right of access was challenged on the ground that the evidence sought was 'plainly incompetent or irrelevant to any lawful purpose of the Administrator,'38 that objection could sustain a refusal by the district court to issue a subpoena or other writ to compel inspection. But there is no indication in the legislative history that Congress intended the American Tobacco principle of construction to govern the immunity proviso of subsection (g), particularly since the scope of that proviso had been so well demarcated by the courts prior to its 1942 re-enactment. And it is not insignificant that the one rule of construction which this Court has, in the past, directly and , 31] expressly applied to the immunity proviso-that 'It should be construed, so far as its words fairly allow the construction, as coterminous with what otherwise would have been the privilege of the person concerned'39-was enunciated by Mr. Justice Holmes, who gave no sign of repudiating that principle by his subsequent statements in the American Tobacco case. Even if the evidence of congressional intent contained in the legislative history were less clear-cut and persuasive, and constitutional doubts more serious than they appear to us, we sould still be unconvinced as to the applicability of the American Tobacco standard to the construction of the immunity proviso in relation to documentary evidence which is clearly and undeniably relevant, and the recording and keeping of which the Administrator has properly required in advance. For, in construing statutory immunities in such circumstances, we must heed the equally well-settled doctrine of this Court to read a statute, assuming that it is susceptible of either of two opposed interpretations, in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen. The canon of avoidance of constitutional doubts must, like the 'plain meaning' rule, give way where its application would produce a futile result, or an unreasonable result 'plainly at variance with the policy of the legislation as a whole.'40 In the present case, not merl y does the construction , 32] put forward by the petitioner frustrate the congressional intent as manifested by the legislative history, but it also shuts out the illumination that emanates from key words and phrases in the section when considered, as above, in the context of the history of the Compulsory Testimony Act of 1893, and the construction that had been placed upon it and similar provisos, prior to its incorporation into the Price Control Act. There remains for consideration only the question as to whether serious doubts of constitutionality are raised if the Price Control Act is thus construed. This issue was not duly raised by petitioner, and it becomes relevant, if at all, only because such doubts are now said to be present if the immunity proviso is interpreted as set forth above. It may be assumed at the outset that there are limits which the government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator. It is not questioned here that Congress has constitutional authority to prescribe commodity prices as a war emergency measure, and that the licensing and record- keeping requirements of the Price Control Act represent a legitimate exercise of that power. 41 Accordingly, the principle enunciated in the Wilson case, and reaffirmed as recently as the Davis case, is clearly applicable here: , 33] namely, that the privilege which exists as to private papers cannot be maintained in relation to 'records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established.'42 , 34] Even the dissenting Justices in the Davis case conceded that 'there is an important difference in the constitutional protection afforded their possessors between papers exclusively private and documents having public aspects,'43 a difference whose essence is that the latter papers, 'once they have been legally obtained, are available as evidence.'44 In the case at bar, it cannot be doubted that the sales record which petitioner was required to keep as a licensee under the Price Control Act has 'public aspects.' Nor can there be any doubt that when it was obtained by the Administrator through the use of subpoena, as authorized specifically by 202(b) of the statute, it was 'le- , 35] gally obtained' and hence 'available as evidence.'45 The record involved in the case at bar was a sales record required to be maintained under an appropriate regulation, its relevance to the lawful purpose of the Administrator is unquestioned, and the transaction which it recorded was one in which the petitioner could lawfully engage solely by virtue of the license granted to him under the statute. 46 In the view that we have taken of the case, we find it unnecessary to consider the additional contention by the government that, in any event, no immunity attaches to the production of the books by the petitioner because the , 36] connection between the books and the evidence produced at the trial was too tenuous to justify the claim. For the foregoing reasons, the judgment of the Circuit Court of Appeals is affirmed. Affirmed. Mr. Justice FRANKFURTER, dissenting. The Court this day decides that when Congress prescribes for a limited Governmental purpose, enforceable by appropriate sanctions, the form in which some records are to be kept, not by corporations but by private individuals, in what in everyday language is a private and not a Governmental business, Congress thereby takes such records out of the protection of the Constitution against self-incrimination and search and seizure. Decision of constitutional issues is at times unavoidable. But in this case the Court so decides when it is not necessary. The Court makes a drastic break with the past in disregard of the settled principle of constitional adjudication not to pass on a constitutional issue-and here a grave one involving basic civil liberties-if a construction that does no violence to the English language permits its avoidance. This statute clearly permits it. 1 Instead, the Court goes on the assumption that an immunity statute must be equated with the privilege, although only recently the Court attributed to Congress a gratuitous grant of immunity where concededly the Constitution did not require it, under circumstances far less persuasive than the statutory language and the policy underlying it. See United States v. Monia, . , 37] Instead of respecting 'serious doubts of constitutionality' by giving what is at least an allowable construction to the Price Control Act which legitimately avoids these doubts, the Court goes outo f its way to make a far-reaching pronouncement on a provision of the Bill of Rights. In an almost cursory fashion, the Court needlessly decides that all records which Congress may require individuals to keep in the conduct of their affairs, because they fall within some regulatory power of Government, become 'public records' and thereby, ipso facto, fall outside the protection of the Fifth Amendment that no person 'shall be compelled in any criminal case to be a witness against himself.' In reaching out for a constitutional adjudication, especially one of such moment, when a statutory solution avoiding it lay ready at hand, the Court has disregarded its constantly professed principle for the proper approach toward congressional legislation. 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, , 296, quoted by Mr. Justice Brandeis with supporting citations in Ashwander v. Tennessee Valley Authority, , note 8, 484. And see, generally, for duty to avoid constitutional adjudication, Rescue Army v. Municipal Court, , 568 et seq., 1419. Departure from a basic canon of constitutional adjudication is singularly uncalled for in a case such as this, where the statute not only permits a construction avoiding constitutional considerations but on fair reading requires it. In conferring powers of investigation upon the Administrator, Congress designed to secure the promptest dis- , 38] closure of the books and records of the millions of private enterprises subjected to the regulations of the Office of Price Administration. The would contradict that vital aim to attribute to Congress the conflicting purpose of hampering the free flow of knowledge contained in businessmen's books by inviting controversies regarding still undetermined claims of privilege under the Fifth Amendment, in the absence of an expression of such propose made much more manifest than the broad language of 202(g) which conferred immunity for the very purpose of avoiding such controversies. It is a poor answer to say that if the statute were eventually found to confer immunity only to the extent required for supplying an equivalent for the constitutional privilege, all records would turn out to be unprivileged or would furnish immunity, and in either case refute any excuse for withholding them. Business men are not guided by such abstractions. Obedience is not freely given to uncertain laws when they involve such sensitive matters as opening the books of business. And so, business men would have had a strong incentive to hold back their records, forcing the Administrator to compel production by judicial process. Apart from the use of opportunities for obstructive tactics that can hardly be circumvented when new legislation is tested, delays inevitable to litigation would dam up the flow of needed information. Congress sought to produce information, not litigation. See United States v. Monia, supraat page 428, 63 S.Ct. at page 411. In the Monia case the Court considered that the statute, 'if interpreted as the Government now desires, may well be a trap for the witness.' Id.at page 430, 63 S.Ct. at page 412. We need not speculate here as to potential entrapment. The record discloses that the petitioner asked, through his attorney, whether he was 'being granted immunity as to any and all matters for information obtained as the result of the investigation and examination of these records.' On be- , 39] half of the Price Administrator, the reply was 'The witness is entitled to whatever immunity which flows as a matter of law from the production of these books and records which are required to be kept pursuant to MPRs ( Maximum Price Regulations) 271 and 426.' Petitioner, himself, thereupon specifically claimed immunity under the statute as well as under the Constitution, and stated that under 'these conditions' he produced the books and records that the subpoena sought. It seems clear that disclosure was here made, records were produced, on the petitioner's justifiable belief-based upon the advice of counsel and acquiesced in by the presiding official-that he thereby secured statutory immunity and not constitutional litigation. There is nothing to indicate that in 1942 Congress legislated with a view to litigating the scope of the limitation of the Fifth Amendment upon its powers. To ascertain what Congress meant by 202(g) we would do well to begin by carefully attending to what Congress said: 'No person shall be excused from complying with any requirements under this section because of his privilege against self-incrimination, but the immunity provisions of the Compulsory Testimony Act of February 11, 1893 (U.S.C.1934 edition, title 49, sec. 46), shall apply with respect to any individual who specifically claims such privilege.' 56 Stat. 23, 30, 50 U.S.C.Supp. V, 922, 50 U.S.C.A. Appendix, 922. The text must be put into its context, not merely because one provision of a statute should normally be read in relation to its fellows, but particularly so here because Congress explicitly linked subsection (g) of 202 to 'any requirements under this section.' Effective price control depended on unimpeded access to relevant information. To that end, 202 authorized the Administrator to impose the 'requirements' of the section, and those from whom , 40] they were exacted were under duty of compliance by subsection (e), while subsection (g) barred any excuse from compliance by a claim of privilege against self-crimination by the assurance of immunity from prosecution. 2 , 41] Subsections (a), (b), (c) and (e) impose these four requirements: persons engaged in the vast range of business subject to the Act may be required to (1) make and keep records, (2) make reports and (3) permit the inspection and copying of records and other documents; such persons as well as others may be required to (4) 'appear and testify or to appear and produce documents, or both, at any designated place.'3 An unconstrained reading of subsection (g) insured prompt compliance with all these requirements by removing any excuse based on the privilege against self- crimination. , 42] Here the Administrator required the petitioner to 'keep and make available for examination by the Office of Price Administration * * records of the same kind as he has customarily kept * * *.' 14(b), MPR 426, 8 F.R. 9546. The Government contends that because the records of petitioner's own business, those that he 'customarily kept,' were required to be so kept by the Administrator, he was compelled to disclose their contents even though they may have incriminated him, and that he was afforded no immunity under subsection (g) because he was not disclosing what were really his records. Surely this is to devitalize the phrase 'any requirements under this section' if not to render it meaningless. The Court supports this devitalization with the 'short answer' that the immunity provided does cover compliance with any of these requirements as to which a person would have been excused from compliance because of his constitutional privilege. The short reply is that, bearing in mind the Court's conclusions as to the scope of the constitutional privilege, only the fourth requirement appears to be thus covered. I do not wish to lay too much stress on the Court's singular interpretation of the plural 'requirements.' Plainly, the Court construes 202(g) as according immunity only to oral testimony under oath and to the production of any documents which the Administrator did not have the foresight to require to be kept. 4 The Court thus construes the words 'complying with any requirements under this section' to read 'appearing and testifying or producing documents other than those required to be kept pursuant to this section.' Construc- , 43] tion, no doubt, is not a mechanical process and even when most scrupulously pursued by judges may not wholly escape some retrospective infusion so that the line between interpretation and substitution is sometimes thin. But there is a difference between reading what is and rewriting it. The Court here does not adhere to the text but deletes and reshapes it. Such literary freewheeling is hardly justified by the assumption that Congress would have so expressed it if it had given the matter attentive consideration. 5 In the Monia case the Court, having concluded that a similar question was present, had no difficulty in answering: 'It is not for us to add to the legislation what Congress pretermitted.' at page 430, 63 S.Ct. at page 412. Both logic and authority, apart from due regard for our limited function, demonstrate the wisdom of respecting the text. The reach of the immunity given by 202(g) is spelled out in the incorporated terms of the Compulsory Testimony Act of 1893. These provide that where, as here, documentary evidence is exacted which may tend to incriminate, he who produces it shall not 'be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise * * *.' 27 Stat. 443, 49 U.S.C. 46, 49 U.S.C.A. 46. There is of course nothing in this provision to support the finespun exegesis which the Court puts upon 202(g). The Government admits as much by acknowledging that 'the literal language of the Compulsory Testimony Act possibly may be so read' as to support the present claim of immunity. But it urges that nothing , 44] in the 'language or legislative history' of 202(g) requires a broader immunity than an adjudication of the scope of the constitutional privilege would exact. The language yiedls no support for the Government's sophisticated reading adopted by the Court. Nor is there anything in the legislative history to transmute the clear import of 202 into esoteric significance. So far as it bears upon our problem, the legislative history of the Act merely shows that 202 in its entirety was included for the purpose of 'obtaining information.' 6 Nothing in that history throws any light upon the scope of the immunity afforded by subsection (g).7 What is there in this silence of Congress that speaks so loudly to the Court? What are the 'inescapable implications of the legislative history' that compelled its extraordinary reading of this statute? Surely, the fact that the Administrator's authority to require the keeping of records and the making of reports was stricken from the bill on its original passage through the House but was eventually , 45] reinserted, reinserted, merely indicates that Congress finally concluded that obtaining information was necessary for effective price regulation. 8 But the Court reads into 202(g) the meaning that 'they' put upon the record-keeping provisions that Congress thus reinserted into the bill. 'They,' the 'general Counsel for the OPA,' appeared and testified orally at the Senate Hearings9 and, in urging restoration of the licensing ( 205( f)) and record-keeping provisions, secured permission to file various briefs and documents with the Committee. 10 While there is nothing in the General Counsel's oral testimony that sheds light upon our prob- , 46] lem, it does appear from one of the exhibits filed by him that the Court has correctly determined the far-reaching construction that he had given to provisions which the House had rejected as 'redundant.'11 But our task is to determine, as best we can, what Congress meant-not what counsel sponsoring legislation, however disinterestedly, hoped Congress would mean. If counsel's views had been orally expressed to the Committee,12 the Committee might have given some indication of its views. But even if upon such disclosure of counsel's views the Committee had remained silent, this would hardly have furnished sufficient evidence to transmute the language that Congress actually employed to express its meaning into some other meaning. To attribute to Congress familiarity with, let alone acceptance of, a construction solely by reason of the fact that our research reveals its presence among the 60,000-word memoranda which the Chairman of the Senate Committee permitted the General Counsel of the OPA to i le, is surely to defy the actualities of the legislative process. Is there the slenderest ground for assuming that members of the Committee read counsel's submission now relied upon by the Court? There is not a reference to the contentions of the OPA wholly apart from that brief, in any report of a committee of either House or in any utterance on the floor of either House. 13 The fact , 47] of the matter is that the House had passed the measure before the brief, in type smaller than that of the footnotes in this opinion, appeared in a volume of hearings com- , 48] prising 560 pages (part of the three volumes of House and Senate Hearings containing 2,865 pages). The Government, in submitting to us the legislative history of the immunity provision with a view to sustaining its claims, did not pretend that the Congress was either aware of the brief or accepted the construction it proffered. The suggestion that members of a congressional committee have read, and presumptively agreed with, the views found in a memorandum allowed to be filed by a witness and printed in appendix form in the hearings on a bill, let alone that both Houses in voting for a measure adopted such views as the gloss upon the language of the Act which it would not otherwise bear, can only be made in a Pickwickian sense. It is hard to believe that even the most conscientious members of the Congress would care to be charged with underwriting views merely because they were expressed in a memorandum filed as was the OPA brief, on which so much reliance is placed in the Court's opinion. If the language of a statute is to be subjected to the esoteric interpretive process that the suggested use of the OPA brief implies, since it is the common practice to allow memoranda to be submitted to a committee of Congress by interests, public and private, often high-minded enough but with their own axes to grind, great encouragement will be given to the temptations of administrative officials and others to provide self-serving 'proof' of congressional confirmation for their private views through incorporation of such materials. Hitherto unsuspected opportunities for assuring desired , 49] glosses upon innocent-looking legislation would thus be afforded. We agree with the Government that Congress gave the Administrator broad powers for obtaining information as an aid to the administration and enforcement14 of the Act, and that 'The immunity provision of Section 202( g) was inserted to insure a full exercise of these powers unhampered by the assertion of the privilege against self-incrimination.' Certainly. But how does it follow that Congress thereby intended sub silentio to effectuate this broad purpose by confining the immunity accorded within the undefined controversial scope of the Fifth Amendment? One would suppose that Congress secured its object, as this Court held in the Monia case, by giving immunity and so taking away contentions based on the constitutional privilege. Plainly, it would have sufficed to dispose of the present controversy by holding that Congress granted immunity by 202(g) to persons who produced their own records, as were the records in this case, and not in their possession as custodians of others, even though required to be kept by 202. To adapt the language of Mr. Justice Holmes, words have been strained by the Court more than they , 50] should be strained in order to reach a doubtful constitutional question. See Blodgett v. Holden, , . And so we come to the Court's facile treatment of the grave constitutional question brought into issue by its disposition of the statutory question. In the interest of clarity it is appropriate to note that the basic constitutional question concerns the scope oft he Fifth Amendment, not the validity of the Price Control Act. The Court has construed the immunity afforded by 202(g) of the Act as co-extensive with the scope of the constitutional privilege against self-incrimination. Thus construed, the subsection is of course valid, since, by hypothesis, it affords a protection as broad as the Fifth Amendment. Counselman v. Hitchcock, , Brown v. Walker, . The vice of this construction-and the importance of the point warrants its reiteration-is precisely that it necessitates interpretation of the Constitution instead of avoiding it. 15 And if the precedents mean anything this course will be followed in every future case involving a question of statutory immunity. The Court hardly finds a problem in disposing of an issue far- reaching in its implications, involving as they do a drastic change in the relations between the individual and the Government as hitherto conceived. The Court treats the problem as though it were almost self-evident that when records are required to be kept for some needs of Government, or to be kept in a particular form, they are legally considered governmental records and may be demanded as instruments of self-crimination. Ready-made catch-phrases may conceal but do not solve serious constitutional problems. 'Too broadly gen- , 51] eralized conceptions are a constant source of fallacy.' Holmes, J., in Lorenzo v. Wirth, 170 Mass. 596, 600, 49 N.E. 1010, 1011, 40 L.R.A. 347. Here the fallacy can be traced to the rephrasing of our problem into terms 'to which, as lawyers, the judges have become accustomed,' Ibid.; then, by treating the question as though it were the rephrased issue, the easy answer appears axiomatic and, because familiar, authoritative. Subtle question-begging is nevertheless question-begging. Thus: records required to be kept by law are public records; public records are non-privileged; required records are non-privileged. If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment-to say nothing of State and local legislation-has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume. The Congress began its history with such legislation. Chapter I of the Laws of the First Session of the First Congress-'An Act to regulate the Time and Manner of administering certain Oaths'-contained a provision requiring the maintenance of records by persons administering oaths to State officials. 1 Stat. 23, 24. Chapter V-'An Act to regulate the Collection of the Duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandise imported into the United States'- contained a provision requiring an importer to produce the original invoice and to make a return concerning the consigned goods with the collector of the port of arrival. 1 Stat. 29, 39-40. Every Congress since 1789 has added record-keeping and reporting requirements. Indeed, it was the plethora , 52] of such provisions that led President Roosevelt to establish the Central Statistical Board in 1933 and induced the enactment, in 1942, of the Federal Reports Act, 56 Stat. 1078, 5 U.S.C.A. 139 et seq. See, generally, Report of the Central Statistical Board, H. Doc. No. 27, 76th Cong., 1st Sess.; Centralization and Coordination of Federal Statistics- Report to the Committee on Appropriations of the House of Representatives, December 4, 1945, 91 Cong. Rec. A5419. On April 25, 1939, the Central Statistical Board reported that, 'Since the end of 1933, the Board has reviewe in advance of dissemination more than 4,600 questionnaries and related forms and plans proposed for use by Federal agencies. The records for the past 2 years show that the Board has received forms from 52 Federal agencies and a number of temporary interdepartmental committees.' See Hearings before the House Committee on Expenditure in the Executive Departments on H.R. 5917, 76th Cong., 1st Sess., at p. 32. The Board, on the basis of a comprehensive survey of the financial and other reports and returns made to 88 Federal agencies by private individuals, farms, and business concerns during the fiscal year ending June 30, 1938, informed Congress as follows:'Counting both the administrative and the nonadministrative reports and returns, the Board's inquiry revealed that some 49,000,000 of the total during the year were collected in accordance with statutory provisions specifically authorizing or directing the collection of reports of the types called for. Approximately 55,000,000 returns were collected by agencies in connection with their performance of functions which were specifically authorized by statutes, although the statutes did not specify the reports. In such cases the information sought was obviously necessary in carrying out required functions. Nearly 27,000,000 returns were collected by , 53] Federal agencies on report forms for each of which the legal authority was too general or too indefinite to permit its clear definition. The remaining 5,000,000 returns were made under a variety of types of legal authorities including authorizations implied in appropriations made specifically to support the collection of the reports.'Somewhat less than half of the returns made to Federal agencies on all forms * * * were mandatory by law, in the sense that a penalty is prescribed in case of failure of the respondent to file a required report. Some of these mandatory returns are very elaborate, and as a consequence over 60 percent of the total number of answers on report forms, other than applications, were in accordance with mandatory requirements.' (H. Doc. No. 27, supra, at 11-12.) I do not intend by the above exposition to cast any doubt upon the constitutionality of the record-keeping or reporting provisions of the Emergency Price Control Act or, in general, upon the vast number of similar statutory requirements. Such provisions serve important and often indispensable purposes. But today's decision can hardly fail to hamper those who make and those who execute the laws in securing the information and data necessary for the most effective and intelligent conduct of Government. The underlying assumption of the Court's opinion is that all records which Congress in the exercise of its constitutional powers may require individuals to keep in the conduct of their affairs, because those affairs also have aspects of public interest, become 'public' records in the sense that they fall outside the constitutional protection of the Fifth Amendment. The validity of such a doctrine lies in the scope of its implications. The claim touches records that may be required to be kept by fed- , 54] eral regulatory laws, revenue measures, labor and census legislation in the conduct of business which the understanding and feeling of our people still treat as private enterprise, even though its relations to the public may call for governmental regulation, including the duty to keep designated records. If the records in controversy here are in fact public, in the sense of publicly owned, or governmental, records, their non-privileged status follows. See Davis v. United States, , 594, 602, 1262, 1265 (dissenting opinion). No one has a private right to keep for his own use the contents of such records. But the notion that whenever Congress requires an individual to keep in a particular form his own books dealing with his own affairs his records cease to be his when he is accused of crime, is indeed startling. A public record is a pul ic record. If the documents in controversy are 'public records' and as such non-privileged in a prosecution under the Price Control Act, why are they not similarly public and non-privileged in any sort of legal action? There is nothing in either the Act or the Court's construction of it to qualify their 'public' nature. Is there any maintainable reason why the Fifth Amendment should be a barrier to their utilization in a prosecution under any other law if it is no barrier here? These records were, as a matter of fact, required to be kept (and hence 'public') quite apart from this Act. See Int.Rev.Code, 54(a), 26 U.S.C.A. Int.Rev.Code, 54(a), and Treas. Reg. 111, 29.54-1. If an examination of the records of an individual engaged in the processing and sale of essential commodities should disclose non-essential production, for example, why cannot the records be utilized in prosecutions for violations of the priorities or selective service legislation? Cf. Harris v. United States, ; but cf. Trupiano v. United States, . Moreover, the Government should be able to enter a man's home to examine or seize such public records, with , 55] or without a search warrant, at any time. If an individual should keep such records in his home, as millions do, instead of in his place of business, why is not his home for some purposes and in the same technical sense, a 'public' library? Compare Davis v. United States, , and Harris v. United States, supra, with the 'well-stated' opinion in United States v. Mulligan, D.C., 268 F. 893; but see Trupiano v. United States, supra. This is not 'a parade of horribles.' If a man's records are 'public' so as to deprive him of his privilege against self-crimination, their publicness inheres in them for many other situations. Indeed, if these records are public, I can see no reason why the public should not have the same right that the Government has to peruse, if not to use, them. For, public records are 'of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure.' Evanston v. Gunn, . It would seem to follow, therefore, that these public records of persons engaged in what to the common understanding is deemed private enterprise should be generally available for examination and not barred by the plea that the enterprise would thereby cease to be private. Congress was guilty, perhaps, of no more than curious inconsistency when it provided in 202(h) of the Act for the confidential treatment of these 'public' records. 16 But the seeming inconsistency generally applies to , 56] information obtained by the Government pursuant to record-keeping and reporting requirements. See H. Doc. No. 27, supra, at pp. 26-28; 56 Stat. 1078, 1079, 5 U.S.C.A. 139 et seq.; H.R.Rep. No. 1651, 77th Cong., 2d Sess., at pp. 4-5; ('We (the Bureau of the Census) do not even supply the Department of Justice or anybody else with that information') Hearings before the House Committee on Expenditures in the Executive Departments on H.R. 7590, 74th Cong., 1st Sess., at p. 63. The fact of the matter, then, is that records required to be kept by law are not necessarily public in any except a wordplaying sense. To determine whether such records are truly public records, i.e., are denudd of their essentially private significances, we have to take into account their custody, their subject matter, and the use sought to be made of them. It is the part of wisdom, particularly for judges, not to be victimized by words. Records may be public records regardless of whether 'a statute requires them to be kept' if 'they are kept in the discharge of a public duty' either by a public officer or by persons acting under his direction. Evanston v. Gunn, supra. Chapter I of the first statute passed by Congress, supra, is an example of an act requiring a public record to be kept. Records do not become public records, however, merely because they are required to be kept by law. Private records under such circumstances continue to be private records. Chapter V of the Acts of the First Congress, supra, is an example of such a private record required to be kept by law. Is there, then, any foundation for the Court's assumption that all records required to be kept by law are public and not privileged? Reliance is placed on language in Wilson v. United States, , Ann.Cas. 1912D, 558. The holding in that case has no real bearing on our problem. Wilson, the president of a corporation, in answer to a subpena , 57] to produce, refused to surrender the corporation's books and records on the ground that their contents would tend to incriminate him. He appealed to this Court from a judgment committing him for contempt. The case was disposed of on the ground that the books were the corporation's and not 'his private or personal books,' that the 'physical custody of incriminating documents does not of itself protect the custodian against their compulsory production,' and that, therefore, 'the custodian has no privilege to refuse production although their contents tend to criminate him.' at pages 378, 380, 382, 31 S.Ct. at pages 543, 544, 545. The Court concluded as follows:'The only question was whether, as against the corporation, the books were lawfully required in the administration of justice. When the appellant became president of the corporation, and as such held and used its books for the transaction of its business committed to his charge, he was at all times subject to its direction, and the books continuously remained under its control. If another took his place, his custody would yield. He could assert no personal right to retain the corporate books against any demand of government which the corporation was bound to recognize.'We have not overlooked the early English decisions to which our attention has been called * * * but these cannot be deemed controlling. The corporate duty, and the relation of the appellant as the officer of the corporation to its discharge, are to be determined by our laws. Nothing more is demanded than that the appellant should perform the obligations pertaining to his custody, and should produce the books which he holds in his official capacity in accordance with the requirements of the subpoena. None of his personal papers are subject to inspection under the writ, and his action in refusing to permit the , 58] examination of the corporate books demanded fully warranted his commitment for contempt.' at pages 385, 386, 21 S.Ct. at page 546. The Wilson case was correctly decided. The Court's holding boiled down to the proposition that 'what's not yours is not yours.' It gives no sanction for the bold proposition that Congress can legislate private papers in the hands of their owner, and not in the hands of a custodian, out of the protection afforded by the Fifth Amendment. Even if there were language in the Wilson opinion in that direction, an observation taken from its context would seem to be scant justification for resolving, and needlessly, 'a very grave question of constitutional law, involving the personal security, and privileges and immunities of the citizen.' Boyd v. United States, , 526. The conclusion reached today that all records required to be kept by law are public records cannot lean on the Wilson opinion. This is the language relied upon by the Court: 'The principal (that a custodian has no privilege as to the documents in his custody) applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to private papers cannot be maintained.' at page 380, 31 S.Ct. at page 544. But Mr. Justice Hughes, the writer of the Wilson opinion, went on to note that 'There are abundant illustrations in the decisions' of this principle that a custodian has no privilege as to the documents in his custody just as no one has a privilege as to public or official records because they are not his private papers. He resorted , 59] to these illustrations concerning custodians because the dissenting opinion of Mr. Justice McKenna, while accepting the premise that public records were not privileged, quarreled with the Court's holding as to the absence of a custodian's privilege concerning non-public records, as follows: 'As the privilege is a guaranty of personal liberty, it should not be qualified by construction, and a distinction based on the ownership of the books demanded as evidence is immaterial. Such distinction has not been regarded except in the case of public records, as will be exhibited by a review of the authorities.' at page 388, 31 S.Ct. at page 547. The illustrations utilized by Mr. Justice Hughes to meet this challenge raised by the dissent stand for the proposition that (a) a custodian has no privilege, and (b) public documents and records are non- privileged, but not at all on any notion that private records required to be kept by law are 'public' records. Before analyzing the eleven precedents or illustrations thus employed, it is worthy of note that the illustrations were derived from the Government's brief. It is significant that that brief, by Solicitor General Frederick W. Lehmann, well-known for his learning, contained no reference to the required records' doctrine. On the contrary the Government cited these cases to support its argument that: 'The immunity granted by the Constitution is purely personal.'17 These are the 'illustrations in the decisions': (1) Bradshaw v. Murphy, 7 C. & P. 612, where 'it was held that a vestry clerk who was called as a witness could not, on the ground that it might incriminate himself, object to the production of the vestry books kept under the statute, 58 Geo. III, chap. 69, 2.' at page 380, 31 S.Ct. at page 544. , 60] Comment.-This is an instance where records were required to be kept by a public officer (for such, in England, was a parish vestry clerk). Clearly the clerk had no privilege as to such records since (1) they were not his; he was merely their custodian, and (2) he was a public officer. (2) State v. Farnum, 73 S.C. 165, 53 S.E. 83, where it was held that the dispenser of the State Dispensary had to disclose to a legislative committee the official books of that State institution. Comment.-Under South Carolina law the dispenser was an officer of the State; the books were true public records; he was their custodian. (3) State v. Donovan, 10 N.D. 203, 86 N.W. 709, 711, where it was held that a register of sales of intoxicating liquor kept by a druggist pursuant to a statute providing that such record 'shall be open for the inspection of the public at all reasonable times during business hours, and any person so desiring may take memoranda or copies thereof' was a public record. Comment.-The State court construed the statute to make the druggist a public officer and, as such, the cuso dian of the register for the State. The court quoted authority to the effect that the register was 'the property of the state, and not of the citizen, and is in no sense a private memorandum.' 10 N.D. at page 209, 86 N.W. at page 711. Are we to infer from the Court's opinion in this case that the books and records petitioner customarily kept were not his property but that of the United States Government, and that they 'shall be open for the inspection of the public at all reasonable times during business hours, and any person * * * may take memoranda or copies thereof'? Ibid. and cf. Evanston v. Gunn, supra. (4) State v. Davis, 108 Mo. 666, 18 S.W. 894, 32 Am.St.Rep. 640, where it was held that a druggist had no privilege as to the prescriptions he filled for sales of intoxicating liquor. , 61] Comment.-Here the prescriptions were 'required to be kept by law' but they constituted 'public' records in the pure Wilson sense. The prescriptions belonged to the physicians or their patients, 'and the druggist (was) merely their custodian.' 108 Mo. at page 671, 18 S.W. at page 895. (5) State v. Davis, 68 W.Va. 142, 69 S.E. 639, 32 L.R.A.,N.S., 501, Ann.Cas.1912A, 996 (prescription-keeping case virtually identical with State v. Davis, 108 Mo. 666, 188 S.W. 894, 32 Am.St.Rep. 640). (6) People v. Combs, 158 N.Y. 532, 53 N.E. 527, where it was held that a coroner had no privilege as to official inquest records, required to be filed with the county clerk, over his contention that they were private records because they were false and had been found in his own office. Comment.-'The papers were in a public office, in the custody of a clerk who was paid by the city. On their face, they were public records, and intended to be used as such.' 158 N.Y. at page 539, 53 N.E. at page 529. (7) Louisville & N.R. Co. v. Commonwealth, Ky., 51 S.W. 167, where it was held that a railroad corporation had no privilege as to a tariff sheet. Comment.-The tariff sheet was 'required by law to be publicly posted at the station, and was in fact so posted.' 51 S.W. at page 167. Petitioner is not a railroad corporation and his records were not 'publicly posted.' (8) State v. Smith, 74 Iowa 580, 38 N.W. 492, where it was held that a pharmacist had no privilege as to the monthly reports of liquor sales that he had made to the county auditor pursuant to a statutory reporting requirement. Comment.-The reports in the auditor's office were 'public records of the office, which are open to the inspection of all, and may be used in evidence in all cases between all parties, when competent, to establish any fact in issue for judicial determination.' 74 Iowa at pages 583, 584, 38 N.W. at page 494. Petitioner's records were in his possession and were not open for public inspection. , 62] (9) State v. Cummins, 76 Iowa 133, 40 N.W. 124 (same as State v. Smith, supra). (10) People v. Henwood, 123 Mich. 317, 82 N.W. 70 (liquor sales reporting requirement held valid). (11) Langdon v. People, 133 Ill. 382, 24 N.E. 874 held that seizure pursuant to search warrant of official State documents unlawfully in appellant's possession constituted reasonable search-'They were not private papers.' 133 Ill. at page 398, 24 N.E. at page 878. In summary of the authorities cited as illustrations of the principle recognized and applied by the Court in the Wilson case, then, it should be obvious that they neither stand for the proposition that the fact that private records are required to be kept by statute makes them public records by operation of law, nor did Mr. Justice Hughes misconstrue them in reaching the decision in the Wilson case. Were there any doubt as to the point of the illustrations in the Wilson case, surely we could safely permit that doubt to be resolved by the Wilson opinion itself. After reviewing the illustrative cases, Mr. Justice Hughes observed: 'The fundamental ground of decision in this class of cases is that where, by virtue of their character and the rules of law applc able to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody he has accepted the incident obligation to permit inspection.' at pages 381, 382, 31 S.Ct. at page 545. Evidently the dictum in the Wilson case and the authorities therein cited need to be bolstered for the use to which they are put in this case. We are told that 'Other state supreme court decisions, subsequent to the , 63] Wilson case, similarly treat as non-privileged, records required by statute to be kept.' These are the five instances cited: (1) Paladini v. Superior Court, 178 Cal. 369, 173 P. 588, where it was held that the statutory procedure whereby the State Market Director could compel the production of the sales records of licensed fish dealers was valid. Comment.-The court did not hold that the records were 'non-privileged,' but disposed of the contention that the statute violated the constitutional privilege against self-incrimination on the ground that 'The proceeding before the state market director is not criminal in its nature, and the order compelling the petitioners to produce their books before the state market director was not in violation of the constitutional provision, which prohibits a court or officer from requiring a defendant in a criminal case to furnish evidence against himself.' 178 Col. at page 373, 173 P. at Page 590. The court did dispose of the contention that the statute violated the Fourth Amendment of the United States Constitution on the ground that the records were not private. But the records here were public records because, since it was conceded that the fish belonged to the State, 'They contain a record of the purchase and sale of the property of the state, by those having a qualified or conditional interest therein.' Ibid. There is no suggestion in this case that petitioner's records were public records because his fruit and vegetables were the property of the United States Government. (2) St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870, where a municipal ordinance requiring junk dealers to keep books of registry recording their purchases and providing that the books be open for inspection and examination by the police or any citizen was upheld against the contention that it violated the State constitutional provision against unreasonable searches and seizures for private purposes. , 64] Comment.-The case was disposed of by the court's interpretation of the words 'any citizen' as being limited in meaning to 'one whose property has been stolen.' 273 Mo. at page 576, 201 S.W. at page 880. The records here were 'required to be kept by statute,' it is true, but the court had no occasion to, and did not, go into the question as to whether the records were 'non-privileged.' (3) State v. Legora, 162 Tenn. 122, 34 S.W.2d 1056, where a statute requiring junk dealers to keep a record of their purchases was upheld. Comment.-A record which 'shall at all times be open to inspection of * * * any person who may desire to see the same,' 162 Tenn. at page 124, 34 S.W.2d at page 1057, is, of course, a 'public' record. Evanston v. Gunn, supra; cf. St. Louis v. Baskowitz, supra. (4) State v. Stein, 215 Minn. 308, 9 N.W.2d 763, where a statute requiring licensed dealers in raw furs to keep records of their sales and purchases was upheld. Comment.-The records here were public records for the same reason that the records involved in the Paladini case were public records-'the state is the owner, in trust for the people, of all wild animals.' 215 Minn. at page 311, 9 N.W.2d at page 765. (5) Financial Aid Corporation v. Wallace, 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736, where a statute requiring licensed small loan concerns to keep records and providing for their inspection by the State Department of Financial Institutions was upheld. Comment.-The court had no occasion to, and did nt , go into the question as to whether the records were either 'public' or 'non-privileged.' It appears to me, therefore, that the authorities give no support to the broad proposition that because records are required to be kept by law they are public records and, hence, non-privileged. Private records do not thus , 65] become 'public' in any critical or legally significant sense; they are merely the records of an industry or business regulated by law. Nor does the fact that the Government either may make, or has made, a license a prerequisite for the doing of business make them public in any ordinary use of the term. While Congress may in time of war, or perhaps in circumstances of economic crisis, provide for the licensing of every individual business, surely such licensing requirements do not remove the records of a man's private business from the protection afforded by the Fifth Amendment. Even the exercise of the war power is subject to the Fifth Amendment. See, e.g., Hamilton v. Kentucky Distilleries Co., , 156, 107, 108. Just as the licensing of private motor vehicles does not make them public carriers, the licensing of a man's private business, for tax or other purposes, does not under our system, at least so I had supposed, make him a public officer. Different considerations control where the business of an enterprise is, as it were, the public's. Clearly the records of a business licensed to sell state-owned property are public records. Cf., e.g., Paladini v. Superior Court, supra; State v. Stein, supra. And the records of a public utility, apart from the considerations relevant to corporate enterprise, may similarly be teated as public records. Cf., e.g., Louisville & N.R. Co. v. Commonwealth, supra; Financial Aid Corporation v. Wallace, supra. This has been extended to the records of 'occupations which are malum in se, or so closely allied thereto as to endanger the public health, morals, or safety.' St. Louis v. Baskowitz, supra, 273 Mo. at page 554, 201 S.W. at page 873; cf., e.g., State v. Legora, supra; State v. Donovan, supra; State v. Smith, supra. Here the subject matter of petitioner's business was not such as to render it public. Surely, there is nothing inherently dangerous, immoral, or unhealthy about the , 66] sale of fruits and vegetables. Nor was there anything in his possession or control of the records to cast a cloud on his title to them. They were the records that he customarily kept. I find nothing in the Act, or in the Court's construction of the Act, that made him a public officer. He was being administered, not administering. Nor was he in any legitimate sense of the word a 'custodian' of the records. I see nothing frivolous in a distinction between the records of an 'unincorporated entrepreneur' and those of a corporation. On the contrary, that distinction was decisive of the Wilson holding: 'But the corporate form of business activity, with its chartered privileges, raises a distinction when the authority of government demands the examination of books.' at page 382, 31 S. Ct. at page 545. And the Court quoted at length from Hale v. Henkel, , 75, 379: "* * * we are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the State. The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him. * * * "Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises * * *." at page 383, 31 S.Ct. at page 545. , 67] The distinction between corporate and individual enterprise is one of the deepest in our constitutional law, as it is for the shapers of public policy. The phrase 'required to be kept by law,' then, is not a magic phrase by which the legislature opens the door to inroads upon the Fifth Amendment. Statutory provisions similar to 202(b) of this Act, requiring the keeping of records and making them available for official inspection, are constitutional means for effective administration and enforcement. 18 It follows that those charged with the responsibility for such administration and enforcement may compel the disclosure of such records in conformity with the Fourth Amendment. See Boyd v. United States, supraat pages 623, 624, 6 S.Ct. at page 528. But it does not follow that such disclosures are beyond the scope of the protection afforded by the Fifth Amendment. For the compulsory disclosure of a man's 'private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.' Id.at page 632, 6 S.Ct. at page 533. The Court in the Boyd case was fully cognizant of the sense and significance of the phrase 'books required by law to be kept for their inspection.' Id.at pages 623, 624, 6 S.Ct. at page 528. Surely the result of that decision, if not the opinion itself, speaks loudly against the claim that merely by virtue of a record-keeping provision the constitutional privilege against self-incrimination becomes inoperative. The document in controversy in the Boyd case was historically, and as a matter of fact, much more of a 'required record' than the books and records the petitioner here 'cus- , 68] tomarily kept.' If the Court's position today is correct the Boyd case was erroneously decided. 19 , 69] In disregarding the spirit of that decision, the Court's opinion disregards the clarion call of the Boyd case: obsta principiis. For, while it is easy enough to see this as a petty case and while some may not consider the rule of law today announced to be fraught with unexplored significance for the great problem of reconciling individual freedom with governmental strength, the Boyd opinion admonishes against being so lulled. 'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.' Id.at page 635, 6 S.Ct. at page 535. Violators should be detected, tried, convicted, and punished-but not at the cost of needlessly bringing into question constitutional rights and privileges. While law enforcement officers may find their duties more arduous and crime detection more difficult as society becomes more complicated, the constitutional safeguards of the , 70] individual were not designed for short-cuts in the administration of criminal justice. And so I conclude that the Court has misconstrued the Fifth Amendment by narrowing the range and scope of the protection it was intended to afford. The privilege against self-incrimination is, after all, 'as broad as the mischief against which it seeks to guard.' Counselman v. Hitchcock, supraat page 563, 12 S.Ct. at page 198. If Congress by the easy device of requiring a man to keep the private papers that he has customarily kept can render such papers 'public' and nonprivileged, there is little left to either the right of privacy or the constitutional privilege. Even if there were authority for the temerarious pronouncement in today's opinion, I would insist that such authority was illfounded and ought not to be followed. There is no such authority. The Court's opinion can gain no strength beyond itself. The persuasiveness of its opinion is not enhanced by the endeavor of the majority of the Court, so needlessly reaching out for a constitutional issue, to rest its ominous inroads upon the Fifth Amendment not on the wisdom of their determination but on blind reliance uponn on-persuasive authority. Mr. Justice JACKSON, with whom Mr. Justice MURPHY agrees, dissenting. The protection against compulsory self-incrimination, guaranteed by the Fifth Amendment, is nullified to whatever extent this Court holds that Congress may require a citizen to keep an account of his deeds and misdeeds and turn over or exhibit the record on demand of government inspectors, who then can use it to convict him. Today's decision introduces a principle of considerable moment. Of course, it strips of protection only business men and their records; but we cannot too often remind ourselves of the tendency of such a principle, once approved, to expand itself in practice 'to the limits of its logic.' That it has already expanded to cover a vast , 71] area is apparent from the Court's citation of twenty-six federal statutes that present parallels to the situation here under review. It would, no doubt, simplify enforcement of all criminal laws if each citizen were required to keep a diary that would show where he was at all times, with whom he was, and what he was up to. The decision of today, applying this rule not merely to records specially required under the Act but also to records 'customarily kept,' invites and facilitates that eventuality. The practice approved today obviously narrows the protections of the Fifth Amendment. We should not attribute to Congress such a purpose or intent unless it used language so mandatory and unmistakable that it left no alternative, and certainly should not base that inference on 'legislative history' of such dubious meaning as exists in this case. Congress, if we give its language plain and usual meaning, has guarded the immunity so scrupulously as to raise no constitutional question. But if Congress had overstepped, we should have no hesitation in holding that the Government must lose some cases rather than the people lose their immunities from compulsory self-incrimination. However, in this case, the plain language of Congress requires no such choice. It does require, in my view, that this judgment be reversed. Mr. Justice RUTLEDGE, dissenting. With reservations to be noted, I agree with the views expressed by Mr. Justice JACKSON, and with Mr. Justice FRANKFURTER'S conclusions concerning the effect of the immunity provision, 202(g) of the Emergency Price Control Act. 1 , 72] With them I cannot accept the Court's construction of that section which reduces the statutory immunity to the scope of that afforded by the Fifth Amendment's prohibition against compulsory self-incrimination. This Court has not previously so decided. 2 Nor, in my judg- , 73] ment, can the present decision be reconciled with the language of the statute or its purpose obvious on its face. That wording compels testimony and the production of evidence, documentary or otherwise, regardless of any claim of constitutional immunity, whether valid or not. 3 But to avoid the constitutional prohibition and, it would seem clearly, also any delay in securing the information or evidence required, the Act promises immunity 'for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence * * * in obedience to' the subpoena. 4 The statute thus consists of a command and a promise. In explicit terms the promise is made coextensive with the command. It expressly precludes prosecution, forfeiture or penalty 'for or on account of any transaction, matter or thing' concerning which evidence is produced in compliance with the subpoena. 5 Compelling testimony and giving immunity 'for or on account of any transaction, matter or thing, concerning which he may testify' are very different from compelling it and promising that, when given, the person complying 'shall have only the immunity given by the Fifth Amendment and no more.' To constrict the statute's wording so drastically is not simply to interpret, it is to rewrite the congressional , 74] language and, in my view, its purpose. If Congress had intended only so narrow a protection, it could easily have said so without adding words to lead witnesses and others to believe more was given. It may be, however, notwithstanding the breadth of the promissory terms, that the statutory immunity was not intended to be so broad as to cover situations where the claim of constitutional right precluded is only frivolous or insubstantial or not put forward in good faith. 6 And if, for such a reason, the literal breadth of the wording may be somewhat cut down, restricting the statute's immunity by excluding those situations would neither restrict the effect of the statutory words to that of the Amendment itself nor give them the misleading connotation of the Court's cont ruction. Such a construction would not be departing widely from either the statute's terms or their obvious purpose to give immunity broader than the Amendment's, and would be well within the bounds of statutory interpretation. On the other hand, the Court's reduction of the statutory wording to equivalence in effect with the constitutional immunity, nearly if not quite makes that wording redundant or meaningless; in any event, it goes so far in rewriting the statutory language as to amount to invasion of the legislative function. Whether one or the other of the two broader views of the statute's effect is accepted, therefore, it is neither necessary nor, I think, reasonable or consistent with the statutory wording and object or with this Court's function as strictly a judicial body to go so far in reconstructing what Congress has done, as I think results from reducing the statutory immunity to equivalence with the constitutional one. , 75] Since it is not contended that there was not full compliance with the subpoena in this case, that compliance was excessive in the presently material portions of the evidence or information produced, or that the chaim of constitutional immunity precluded was frivolous, insubstantial or not made in good faith, I think the judgment should be reversed by applying the statutory immunity, whether in one or the other of the two forms which may be applied. In this view I am relieved of the necessity of reaching the constitutional issue resulting from the Court's construction, and I express no opinion upon it except to say that I have substantial doubt of the validity of the Court's conclusion and indicate some of the reasons for this. I have none that Congress itself may require the keeping and production of specified records, with appropriate limitations, in connection with business matters it is entitled to and does regulate. That is true not only of corporate records, Wilson v. United States, , Ann.Cas.1912D, 558, but also of individual business records under appropriate specification and limitations, as the numerous instances cited in Mr. Justice FRANKFURTER'S opinion illustrate. But I seriously doubt that, consistently with the Fourth Amendment, as well as the prohibition of the Fifth against compulsory self- incrimination, Congress could enact a general law requiring all persons, individual or corporate, engaged in business subject to congressional regulation to produce, either in evidence or for an administrative agency's or official's examination, any and all records, without other limitation, kept in connection with that business. Such a command would approach too closely in effect the kind of general warrant the Fourth Amendment outlawed. That would be even more obviously true, if there were any difference, in case Congress , 76] should delegate to an administrative or executive official the power to impose so broad a prohibition. The authority here conferred upon the Administrator by the Emergency Price Control Act, in reference to record-keeping and requiring production of records, closely approaches such a command. Congress neither itself specifies the records to be kept and produced upon the Administrator's demand nor limits his power to designate them by any restriction other than that he may require such as 'he deems necessary or proper to assist him,' 202(a), (b), (c), in carrying out his functions of investigation and prescribing regulations under, as well as of administration and enforcement of, the Act. And as the authority to specify records for keeping and production was carried out by the Administrator, the only limitation imposed was that the records should be such as had been 'customarily kept.' 14(b), M.P.R. 426, 8 Fed.Reg. 9546, 9549. Such a restriction is little, if any, less broad than the one concerning which I have indicated doubt that o ngress itself could enact consistently with the Fourth Amendment. The authorization therefore is one which raises serious question whether, by reason of failure to make more definite specification of the records to be kept and produced, the legislation and regulations involved here do not exceed the prohibition of the Fourth Amendment against general warrants and unreasonable searches and seizures. There is a difference, of course, and often a large one, between situations where evidence is searched out and seized without warrant, and others where it is required to be produced under judicial safeguards. But I do not understand that in the latter situation its production can be required under a warrant that amounts to a general one. The Fourth Amendment stands as a barrier to judicial and legislative as well as executive or administrative excesses in this respect. , 77] Although I seriously question whether the sum of the statute, as construed by the Court, the pertinent regulations, and their execution in this case does not go beyond constitutional limitations in the breadth of their inquiry, I express no conclusive opinion concerning this, since for me the statutory immunity applies and is sufficient to require reversal of petitioner's conviction. u |
7 | [Footnote *] Together with Costle, Administrator, Environmental Protection Agency v. Consolidation Coal Co. et al., also on certiorari to the same court (see this Court's Rule 19.4). Under 301 (b) of the Federal Water Pollution Control Act, the Environmental Protection Agency (EPA) is to set 1977 effluent limitations for categories of point sources, requiring such sources to meet standards based on application of the "best practicable control technology currently available" (BPT), and 1987 limitations, requiring all point sources to meet standards based on application of the "best available technology economically achievable" (BAT). Section 301 (c) of the Act provides for variances from 1987 BAT effluent limitations for individual point sources upon a showing "that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operators; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants." However, the Act contains no similar variance provision authorizing consideration of the economic ability of the individual operator to meet the cost of complying with 1977 BPT standards. In 1977, the EPA promulgated BPT pollution discharge limitations for the coal mining industry and for certain portions of the mineral mining and processing industry. Under the regulations, a greater than normal cost of implementation will be considered in acting on a request for a variance, but a variance will not be granted on the basis of the applicant's economic inability to meet the cost of implementing the uniform standard. Respondents sought review of the regulations in various Courts of Appeals, challenging both the substantive standards and the variance clause. All of the petitions were transferred to the Court of Appeals for the Fourth Circuit, which set aside the variance provision as unduly restrictive and required the EPA to consider, inter alia, the factors set out in 301 (c), including the applicant's economic capability.Held: The Court of Appeals erred in not accepting the EPA's interpretation of the Act. The EPA is not required by the Act to consider economic capability in granting variances from its uniform BPT standards. Pp. 73-85. (a) The statute's plain language does not support the Court of Appeals' position. Section 301 (c)'s requirement for a BAT variance of "reasonable further progress" toward the elimination of pollutant discharges refers to the prior BPT standard, but there is no comparable prior standard with respect to BPT limitations. And since BPT limitations do not require an industrial category to commit the maximum resources economically possible to pollution control, even if affordable, the 301 (c) BAT variance factor as to the maximum use of technology within the applicant's economic capability is inapposite in the BPT context. More importantly, under the Act, the Administrator of the EPA, in determining BPT limitations, is directed to consider the benefits of effluent reductions as compared to the cost of pollution control in defining the best practicable technology at a level that would effect the 1977 goal of substantially reducing total pollution produced by each industrial category. Thus, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a BPT variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently available in the industry. Pp. 73-78. (b) The EPA's interpretation of the statutory language is also supported by the legislative history, which shows that Congress understood that the economic capability provision of 301 (c) was limited to BAT variances; foresaw and accepted the economic hardship, including the closing of some plants, that BPT effluent limitations would cause; and took certain steps to alleviate this hardship, steps which did not include allowing a BPT variance based on economic capability. Pp. 79-83. (c) In the face of 301 (c)'s explicit limitation to BAT variances and in the absence of any other specific direction in the statute to provide for BPT variances in connection with permits for individual point sources, the Administrator adopted a reasonable construction of the statutory mandate, and the Court of Appeals erred in concluding that, since BAT limitations are to be more stringent than BPT limitations, the variance provision for the latter must be at least as flexible as that for the former with respect to affordability. Pp. 83-84. 601 F.2d 111 and 604 F.2d 239, reversed. WHITE, J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the cases.Andrew J. Levander argued the cause pro hac vice for petitioners. With him on the briefs were Solicitor General McCree, Acting Assistant Attorney General MacBeth, and Michele B. Corash.George C. Freeman, Jr., argued the cause for respondents Consolidation Coal Co. et al. Theodore L. Garrett argued the cause for respondents National Crushed Stone Association et al. With Messrs. Freeman and Garrett on the brief were Michael B. Barr, Robert F. Stauffer, Lawrence A. Demase, Frank J. Clements, and Ronald R. Janke.Fn Fn J. Taylor Banks and Ronald J. Wilson filed a brief for the Natural Resources Defense Council, Inc., as amicus curiae urging reversal.William W. Becker filed a brief for the New England Legal Foundation as amicus curiae urging affirmance.JUSTICE WHITE delivered the opinion of the Court.In April and July 1977, the Environmental Protection Agency (EPA), acting under the Federal Water Pollution Control Act (Act), as amended, 86 Stat. 816, 33 U.S.C. 1251 et seq., promulgated pollution discharge limitations for the coal mining industry and for that portion of the mineral mining and processing industry comprising the crushed-stone, construction-sand, and gravel categories.1 Although the Act does not expressly authorize or require variances from the 1977 limitation, each set of regulations contained a variance provision.2 Respondents sought review of the regulations in various Courts of Appeals, challenging both the substantive standards and the variance clause.3 All of the petitions for review were transferred to the Court of Appeals for the Fourth Circuit. In National Crushed Stone Assn. v. EPA, 601 F.2d 111 (1979), and in Consolidation Coal Co. v. Costle, 604 F.2d 239 (1979), the Court of Appeals set aside the variance provision as "unduly restrictive" and remanded the provision to EPA for reconsideration.4 To obtain a variance from the 1977 uniform discharge limitations a discharger must demonstrate that the "factors relating to the equipment or facilities involved, the process applied, or other such factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines." Although a greater than normal cost of implementation will be considered in acting on a request for a variance, economic ability to meet the costs will not be considered.5 A variance, therefore, will not be granted on the basis of the applicant's economic inability to meet the costs of implementing the uniform standard.The Court of Appeals for the Fourth Circuit rejected this position. It required EPA to "take into consideration, among other things, the statutory factors set out in 301 (c)," which authorizes variances from the more restrictive pollution limitations to become effective in 1987 and which specifies economic capability as a major factor to be taken into account.6 The court held that"`if [a plant] is doing all that the maximum use of technology within its economic capability will permit and if such use will result in reasonable further progress toward the elimination of the discharge of pollutants ... no reason appears why [it] should not be able to secure such a variance should it comply with any other requirements of the variance.'" 601 F.2d, at 124, quoting from Appalachian Power Co. v. Train, 545 F.2d 1351, 1378 (CA4 1976). We granted certiorari to resolve the conflict between the decisions below and Weyerhaeuser Co. v. CostleApp. D.C. 309, 590 F.2d 1011 (1978), in which the variance provision was upheld. .IWe shall first briefly outline the basic structure of the Act, which translates Congress' broad goal of eliminating "the discharge of pollutants into the navigable waters," 33 U.S.C. 1251 (a) (1), into specific requirements that must be met by individual point sources.7 Section 301 (b) of the Act, 33 U.S.C. 1311 (b) (1976 ed. and Supp. III), authorizes the Administrator to set effluent limitations for categories of point sources.8 With respect to existing point sources, the section provides for implementation of increasingly stringent effluent limitations in two steps. The first step to be accomplished by July 1, 1977, requires all point sources to meet standards based on "the application of the best practicable control technology currently available [BPT] as defined by the Administrator ... ." 301 (b) (1) (A). The second step, to be accomplished by July 1, 1987, requires all point sources to meet standards based on application of the "best available technology economically achievable [BAT] for such category or class ... ."9 301 (b) (2) (A). Both sets of limitations - BPT's followed within 10 years by BAT's - are to be based upon regulatory guidelines established under 304 (b).Section 304 (b) of the Act, 33 U.S.C. 1314 (b), is again divided into two sections corresponding to the two levels of technology, BPT and BAT. Under 304 (b) (1) the Administrator is to quantify "the degree of effluent reduction attainable through the application of the best practicable control technology currently available [BPT] for classes and categories of point sources ... ." In assessing the BPT the Administrator is to consider"the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application, ... the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate." 33 U.S.C. 1314 (b) (1) (B). Similar directions are given the Administrator for determining effluent reductions attainable from the BAT except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits.10 Section 402 authorizes the establishment of the National Pollutant Discharge Elimination System (NPDES), under which every discharger of pollutants is required to obtain a permit. The permit requires the discharger to meet all the applicable requirements specified in the regulations issued under 301. Permits are issued by either the Administrator or state agencies that have been approved by the Administrator.11 The permit "transform[s] generally applicable effluent limitations ... into the obligations (including a timetable for compliance) of the individual discharger... ." EPA v. California ex rel. State Water Resources Control Board, .Section 301 (c) of the Act explicitly provides for modifying the 1987 (BAT) effluent limitations with respect to individual point sources. A variance under 301 (c) may be obtained upon a showing "that such modified requirements (1) will represent the maximum use of technology within the economic capability of the owner or operator; and (2) will result in reasonable further progress toward the elimination of the discharge of pollutants." Thus, the economic ability of the individual operator to meet the costs of effluent reductions may in some circumstances justify granting a variance from the 1987 limitations.No such explicit variance provision exists with respect to BPT standards, but in E. I. du Pont de Nemours & Co. v. Train, , we indicated that a variance provision was a necessary aspect of BPT limitations applicable by regulations to classes and categories of point sources. Id., at 128. The issue in this case is whether the BPT variance provision must allow consideration of the economic capability of an individual discharger to afford the costs of the BPT limitation. For the reasons that follow, our answer is in the negative.12 IIThe plain language of the statute does not support the position taken by the Court of Appeals. Section 301 (c) is limited on its face to modifications of the 1987 BAT limitations. It says nothing about relief from the 1977 BPT requirements. Nor does the language of the Act support the position that although 301 (c) is not itself applicable to BPT standards, it requires that the affordability of the prescribed 1977 technology be considered in BPT variance decisions.13 This would be a logical reading of the statute only if the factors listed in 301 (c) bore a substantial relationship to the considerations underlying the 1977 limitations as they do to those controlling the 1987 regulations. This is not the case.The two factors listed in 301 (c) - "maximum use of technology within the economic capability of the owner or operator" and "reasonable further progress toward the elimination of the discharge of pollutants" - parallel the general definition of BAT standards as limitations that "require application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward ... eliminating the discharge of all pollutants ... ." 301 (b) (2). A 301 (c) variance, thus, creates for a particular point source a BAT standard that represents for it the same sort of economic and technological commitment as the general BAT standard creates for the class. As with the general BAT standard, the variance assumes that the 1977 BPT standard has been met by the point source and that the modification represents a commitment of the maximum resources economically possible to the ultimate goal of eliminating all polluting discharges. No one who can afford the best available technology can secure a variance.There is no similar connection between 301 (c) and the considerations underlying the establishment of the 1977 BPT limitations. First, 301 (c)'s requirement of "reasonable further progress" must have reference to some prior standard. BPT serves as the prior standard with respect to BAT. There is, however, no comparable, prior standard with respect to BPT limitations.14 Second, BPT limitations do not require an industrial category to commit the maximum economic resources possible to pollution control, even if affordable. Those point sources already using a satisfactory pollution control technology need take no additional steps at all. The 301 (c) variance factor, the "maximum use of technology within the economic capability of the owner or operator," would therefore be inapposite in the BPT context. It would not have the same effect there that it has with respect to BAT's, i. e., it would not apply the general requirements to an individual point source.More importantly, to allow a variance based on the maximum technology affordable by the point source, even if that technology fails to meet BPT effluent limitations, would undercut the purpose and function of BPT limitations. Rather than the 1987 requirement of the best measures economically and technologically feasible, the statutory provisions for 1977 contemplate regulations prohibiting discharges from any point source in excess of the effluent produced by the best practicable technology currently available in the industry. The Administrator was referred to the industry and to existing practices to determine BPT. He was to categorize point sources, examine control practices in exemplary plants in each category, and, after weighing benefits and costs and considering other factors specified by 304, determine and define the best practicable technology at a level that would effect the obvious statutory goal for 1977 of substantially reducing the total pollution produced by each category of the industry.15 Necessarily, if pollution is to be diminished, limitations based on BPT must forbid the level of effluent produced by the most pollution-prone segment of the industry, that segment not measuring up to "the average of the best existing performance." So understood, the statute contemplated regulations that would require a substantial number of point sources with the poorest performances either to conform to BPT standards or to cease production. To allow a variance based on economic capability and not to require adherence to the prescribed minimum technology would permit the employment of the very practices that the Administrator had rejected in establishing the best practicable technology currently in use in the industry.To put the matter another way, under 304, the Administrator is directed to consider the benefits of effluent reductions as compared to the costs of pollution control in determining BPT limitations. Thus, every BPT limitation represents a conclusion by the Administrator that the costs imposed on the industry are worth the benefits in pollution reduction that will be gained by meeting those limits. To grant a variance because a particular owner or operator cannot meet the normal costs of the technological requirements imposed on him, and not because there has been a recalculation of the benefits compared to the costs, would be inconsistent with this legislative scheme and would allow a level of pollution inconsistent with the judgment of the Administrator.16 In terms of the scheme implemented by BPT limitations, the factors that the Administrator considers in granting variances do not suggest that economic capability must also be a determinant. The regulations permit a variance where "factors relating to the equipment or facilities involved, the process applied, or such other factors relating to such discharger are fundamentally different from the factors considered in the establishment of the guidelines." If a point source can show that its situation, including its costs of compliance, is not within the range of circumstances considered by the Administrator, then it may receive a variance, whether or not the source could afford to comply with the minimum standard.17 In such situations, the variance is an acknowledgment that the uniform BPT limitation was set without reference to the full range of current practices, to which the Administrator was to refer. Insofar as a BPT limitation was determined without consideration of a current practice fundamentally different from those that were considered by the Administrator, that limitation is incomplete. A variance based on economic capability, however, would not have this character: it would allow a variance simply because the point source could not afford a compliance cost that is not fundamentally different from those the Administrator has already considered in determining BPT. It would force a displacement of calculations already performed, not because those calculations were incomplete or had unexpected effects, but only because the costs happened to fall on one particular operator, rather than on another who might be economically better off.Because the 1977 limitations were intended to reduce the total pollution produced by an industry, requiring compliance with BPT standards necessarily imposed additional costs on the segment of the industry with the least effective technology. If the statutory goal is to be achieved, these costs must be borne or the point source eliminated. In our view, requiring variances from otherwise valid regulations where dischargers cannot afford normal costs of compliance would undermine the purpose and the intended operative effect of the 1977 regulations. IIIThe Administrator's present interpretation of the language of the statute is amply supported by the legislative history, which persuades us that Congress understood that the economic capability provision of 301 (c) was limited to BAT variances; that Congress foresaw and accepted the economic hardship, including the closing of some plants, that effluent limitations would cause; and that Congress took certain steps to alleviate this hardship, steps which did not include allowing a BPT variance based on economic capability.18 There is no indication that Congress intended 301 (c) to reach further than the limitations of its plain language. The statement of the House managers of the Act described 301 (c) as "not intended to justify modifications which would not represent an upgrading over the July 1, 1977, requirements of `best practicable control technology.'" Leg. Hist. 232. The Conference Report noted that a 301 (c) variance could only be granted after the effective date of BPT limitations and could only be applied to BAT limitations. Similarly, the Senate Report on the Conference action emphasized that one of the purposes of the BPT limitation was to avoid imposing on the "Administrator any requirement ... to determine the economic impact of controls on any individual plant in a single community." Leg. Hist. 170.Nor did Congress restrict the reach of 301 (c) without understanding the economic hardships that uniform standards would impose. Prior to passage of the Act, Congress had before it a report jointly prepared by EPA, the Commerce Department, and the Council on Environmental Quality on the impact of the pollution control measures on industry.19 That report estimated that there would be 200 to 300 plant closings caused by the first set of pollution limitations. Comments in the Senate debate were explicit: "There is no doubt that we will suffer some disruptions in our economy because of our efforts; many marginal plants may be forced to close." Leg. Hist. 1282 (Sen. Bentsen).20 The House managers explained the Conference position as follows:"If the owner or operator of a given point source determines that he would rather go out of business than meet the 1977 requirements, the managers clearly expect that any discharge issued in the interim would reflect the fact that all discharges not in compliance with such `best practicable technology currently available' would cease by June 30, 1977." Id., at 231. Congress did not respond to this foreseen economic impact by making room for variances based on economic impact. In fact, this possibility was specifically considered and rejected: "The alternative [to a loan program] would be waiving strict environmental standards where economic hardship could be shown. But the approach of giving variances to pollution controls based on economic grounds has long ago shown itself to be a risky course: All too often, the variances become a tool used by powerful political interests to obtain so many exemptions for pollution control standards and timetables on the filmsiest [sic] of pretenses that they become meaningless. In short, with variances, exceptions to pollution cleanup can become the rule, meaning further tragic delay in stopping the destruction of our environment." Id., at 1355 (Sen. Nelson). Instead of economic variances, Congress specifically added two other provisions to address the problem of economic hardship.First, provision was made for low-cost loans to small businesses to help them meet the cost of technological improvements. 86 Stat. 898, amending 7 of the Small Business Act, 15 U.S.C. 636. The Conference Report described the provision as authorizing the Small Business Administration "to make loans to assist small business concerns ... if the Administrator determines that the concern is likely to suffer substantial economic injury without such assistance." Leg. Hist. 153. Senator Nelson, who offered the amendment providing for these loans, saw the loans as an alternative to the dangers of an economic variance provision that he felt might otherwise be necessary.21 Several Congressmen understood the loan program as an alternative to forced closings: "It is the smaller business that is hit hardest by these laws and their enforcement. And it is that same class of business that has the least resources to meet the demands of this enforcement... . Without assistance, many of these businesses may face extinction." Id., at 1359 (Sen. McIntyre).22 Second, an employee protection provision was added, giving EPA authority to investigate any plant's claim that it must cut back production or close down because of pollution control regulations. 507 (e). 86 Stat. 890, 33 U.S.C. 1367 (e).23 This provision had two purposes: to allow EPA constantly to monitor the economic effect on industry of pollution control rules and to undercut economic threats by industry that would create pressure to relax effluent limitation rules.24 Representative Fraser explained this second purpose as follows:"[T]he purpose of the amendment is to provide for a public hearing in the case of an industry claim that enforcement of these water-control standards will force it to relocate or otherwise shut down operations... . I think too many companies use the excuse of compliance, or the need for compliance, to change operations that are going to change anyway. It is this kind of action that gives the whole antipollution effort a bad name and causes a great deal of stress and strain in the community." Leg. Hist. 659. The only protection offered by the provision, however, is the assurance that there will be a public inquiry into the facts behind such an economic threat. The section specifically concludes that "[n]othing in this subsection shall be construed to require or authorize the Administrator to modify or withdraw any effluent limitation or order issued under this chapter." 507 (e), 33 U.S.C. 1367 (e).As we see it, Congress anticipated that the 1977 regulations would cause economic hardship and plant closings: "[T]he question ... is not what a court thinks is generally appropriate to the regulatory process; it is what Congress intended for these regulations." Du Pont, 430 U.S., at 138.IVIt is by now a commonplace that "when faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration." Udall v. Tallman, .25 The statute itself does not provide for BPT variances in connection with permits for individual point sources, and we had no occasion in Du Pont to address the adequacy of the Administrator's 1977 variance provision. In the face of 301 (c)'s explicit limitation and in the absence of any other specific direction to provide for variances in connection with permits for individual point sources, we believe that the Administrator has adopted a reasonable construction of the statutory mandate.In rejecting EPA's interpretation of the BPT variance provision, the Court of Appeals relied on a mistaken conception of the relation between BPT and BAT standards. The court erroneously believed that since BAT limitations are to be more stringent than BPT limitations, the variance provision for the latter must be at least as flexible as that for the former with respect to affordability.26 The variances permitted by 301 (c) from the 1987 limitations, however, can reasonably be understood to represent a cost in decreased effluent reductions that can only be afforded once the minimal standard expressed in the BPT limitation has been reached.27 We conclude, therefore, that the Court of Appeals erred in not accepting EPA's interpretation of the Act. EPA is not required by the Act to consider economic capability in granting variances from its uniform BPT regulations.The judgments of the Court of Appeals are Reversed. JUSTICE POWELL took no part in the consideration or decision of these cases. |
7 | Sandia Corporation and Zia Company have contracts with the Federal Government to manage certain Government-owned atomic laboratories located in New Mexico. Los Alamos Constructors, Inc., has a Government contract for construction and repair work at one of the laboratories. The contracts use an "advanced funding" procedure to meet contractor costs whereby the contractor is allowed to pay creditors and employees with drafts drawn on a special bank account in which United States Treasury funds are deposited, so that only federal funds are expended when the contractor meets its obligations. New Mexico imposes a gross receipts tax and a compensating use tax on those doing business within the State. The gross receipts tax in effect operates as a tax on the sale of goods and services. The use tax is imposed on property acquired out-of-state in a transaction that would have been subject to the gross receipts tax if it had occurred within the State. The Government brought suit in Federal District Court, seeking a declaratory judgment that advanced funds are not taxable gross receipts to the contractors; that the receipts of vendors selling property to the Government through the contractors cannot be taxed by the State; and that the use of Government-owned property by the contractors is not subject to the use tax. The District Court granted summary judgment for the Government. The Court of Appeals reversed, taking the view that the Government-contractor relationships in question did not so incorporate the contractors into the Government structure as to make them "instrumentalities of the United States" immune from the New Mexico taxes.Held: The contractors, as independent taxable entities, are not protected by the Constitution's guarantee of federal supremacy, and hence are subject to the state taxes in question. Pp. 730-744. (a) Federal immunity from state taxation cannot be conferred simply because the tax has an effect on the United States, or because the Federal Government shoulders the entire economic burden of the levy, or because the tax falls on the earnings of a contractor providing services to the Government. And where a use tax is involved, immunity cannot be conferred simply because the State levies the tax on the use of federal property in private hands, or, indeed, simply because the tax is paid with Government funds. Tax immunity is appropriate only when the state levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned. A finding of constitutional tax immunity therefore requires something more than the invocation of traditional agency notions. Pp. 730-738. (b) With respect to the New Mexico use tax, the contractors cannot be termed "constituent parts" of the Federal Government. The congruence of professional interests between the contractors and the Government is not complete, the contractors' relationship with the Government having been created for limited and carefully defined purposes. Allowing a State to apply use taxes to such entities does not offend the notion of federal supremacy. United States v. Boyd, . For similar reasons the New Mexico gross receipts tax must be upheld as applied to funds received by the contractors to meet salaries and internal costs. As to the tax on sales to the contractors, the facts that Sandia and Zia make purchases in their own names and presumably are themselves liable to the vendors, that the vendors are not informed that the Government is the only party with an independent interest in the purchase, and that the contractors need not obtain Government approval for each purchase, all demonstrate that the contractors have a substantial independent role in making purchases, and that the identity of interests between the Government and the contractors is far from complete. As a result, sales to Sandia and Zia are in neither a real nor a symbolic sense sales to the "United States itself." Kern-Limerick, Inc. v. Scurlock, , distinguished. The fact that title passes directly from the vendor to the Government cannot alone make the transaction a purchase by the United States, so long as the purchasing entity, in its role as purchaser, is sufficiently distinct from the Government. Pp. 738-743. 624 F.2d 111, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court.George W. Jones argued the cause, pro hac vice, for the United States. On the briefs were Solicitor General Lee, Acting Assistant Attorney General Murray, Stuart A. Smith, Johnathan S. Cohen, and R. Bruce Johnson.Daniel H. Friedman, Special Assistant Attorney General of New Mexico, argued the cause for respondents. With him on the brief were Jeff Bingaman, Attorney General, Richard M. Kopel, Sarah E. Bennett, James A. Burke, Edward R. Barnicle, Jr., Denise D. Fort, and Gerald B. Richardson, Assistant Attorneys General.* [Footnote *] Briefs of amici curiae urging affirmance were filed for Thirty-six States by Gerald B. Richardson, Assistant Attorney General of New Mexico, and by the Attorneys General of their respective States as follows: Charles A. Graddick of Alabama, Wilson L. Condon of Alaska, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, George Deukmejian of California, J. D. MacFarlane of Colorado, Jim Smith of Florida, Arthur K. Bolton of Georgia, David H. Leroy of Idaho, Tyrone C. Fahner of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William Guste of Louisiana, James E. Tierney of Maine, Stephen H. Sachs of Maryland, Francis X. Bellotti of Massachusetts, Frank J. Kelley of Michigan, Warren Spannaus of Minnesota, John Ashcroft of Missouri, Mike Greely of Montana, Richard H. Bryan of Nevada, Robert Abrams of New York, Robert O. Wefald of North Dakota, William J. Brown of Ohio, Jan Eric Cartwright of Oklahoma, David Frohnmayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, Daniel R. McLeod of South Carolina, Mark V. Meierhenry of South Dakota, Mark White of Texas, David L. Wilkinson of Utah, John J. Easton, Jr., of Vermont, Marshall Coleman of Virginia, Kenneth O. Eikenberry of Washington, Chauncey H. Browning of West Virginia, and Steven F. Freudenthal of Wyoming; and for the Multistate Tax Commission by William D. Dexter. George Deukmejian, Attorney General, and Anthony M. Summers and Neal J. Gobar, Deputy Attorneys General, filed a brief for the State of California as amicus curiae.JUSTICE BLACKMUN delivered the opinion of the Court.We are presented here with a recurring problem: to what extent may a State impose taxes on contractors that conduct business with the Federal Government?IAThis case concerns the contractual relationships between three private entities and the United States. The three agreements involved are typical in most respects of management contracts devised by the Atomic Energy Commission (AEC), now the Department of Energy (DOE).1 Like many of the Government's contractual undertakings, DOE management contracts generally provide the private contractor with its costs plus a fixed fee. But in several ways DOE agreements are a unique species of contract, designed to facilitate long-term private management of Government-owned research and development facilities. As the parties to this case acknowledge, the complex and intricate contractual provisions make it virtually impossible to describe the contractual relationship in standard agency terms. See App. 196-197; Hiestand & Florsheim, The AEC Management Contract Concept, 29 Federal B. J. 67 (1969) (Hiestand & Florsheim). While subject to the general direction of the Government, the contractors are vested with substantial autonomy in their operations and procurement practices.2 The first of the contractors, Sandia Corporation, was organized in 1949 as a subsidiary of Western Electric Company, Inc. Sandia manages the Government-owned Sandia Laboratories in Albuquerque, N. M., and engages exclusively in federally sponsored research. It receives no fee under its contract, and owns no property except for $1,000 in United States bonds that constitute its paid-in capital. But Sandia and Western Electric are guaranteed royalty-free, irrevocable licenses for any communications-related discoveries or inventions developed by most Sandia employees during the course of the contract, App. 34-35, and the company receives complete reimbursements for salary outlays and other expenditures. Id., at 40-42.3 The Zia Company, another of the contractors, is a subsidiary of Santa Fe Industries, Inc. Since 1946, Zia has performed a variety of management, maintenance, and related functions at the Government's Los Alamos Scientific Laboratory, for which it receives its costs as well as a fixed annual fee. While Zia owns property and performs private work, virtually none of its property is used in the performance of its contract with the Government, and all of its private activities are conducted away from Los Alamos by a separate work force.The third contractor is Los Alamos Constructors, Inc. (LACI), since 1953 a subsidiary of Zia. LACI's operations are limited to construction and repair work at the Los Alamos facility. The company owns no tangible personal property and makes no purchases; it procures needed property and equipment through its parent, Zia. And like Zia, LACI receives its costs plus a fixed annual fee from the Government.The management contracts between the Government and the three contractors have a number of significant features in common. As in most DOE atomic facility management agreements, the contracts provide that title to all tangible personal property purchased by the contractors passes directly from the vendor to the Government. App. 231a (Zia); id., at 34 (Sandia).4 Similarly, the Government bears the risk of loss for property procured by the contractors. Zia and LACI must submit an annual voucher of expenditures for Government approval. Id., at 20 (Zia); id., at 27 (LACI).5 And the agreements give the Government control over the disposition of all property purchased under the contracts, as well as over each contractor's property management procedures. Disputes under the contracts are to be resolved by a DOE contracting official. Id., at 128-129 (Zia standard terms) and 157-158 (Sandia standard terms).On the other hand, the contractors place orders with third-party suppliers in their own names, and identify themselves as the buyers. See id., at 36-37 (Sandia contract) and 120 (Zia standard terms). Indeed, the Government acknowledged during discovery that Sandia, Zia, and LACI "may be ... `independent contractor[s],' rather than ... `servant[s]' for ... given `function[s] under' the contract[s] (e. g., directing the details of day-to-day ... operations and the hiring and direct supervision of employees)," id., at 197, and the Government does not claim that the contractors are federal instrumentalities. Id., at 201; see Department of Employment v. United States, . Similarly, the United States disclaims responsibility for torts committed by the contractors' employees, and maintains that such employees have no claim against the United States for labor-related grievances. See 624 F.2d 111, 116-117, n. 6 (CA10 1980).Finally, and most importantly, the contracts use a so-called "advanced funding" procedure to meet contractor costs. Advanced funding, an accounting device developed shortly after the conclusion of the Manhattan Project, is designed to provide "up-to-date meaningful records of costs and controls of property," as well as to "speed up reimbursement of contractors." App. 204 (Fifth Semiannual Report of the Atomic Energy Commission (1949)). The procedure allows contractors to pay creditors and employees with drafts drawn on a special bank account in which United States Treasury funds are deposited.6 To put the advanced funding mechanism in place, the United States, the contractor, and a bank establish a designated bank account, pursuant to a three-party contract. The Government dispatches a letter of credit to a Federal Reserve Bank in favor of the contractor, making Treasury funds available in the designated account. The contractor pays its expenses by drawing on the account, at which time the bank or the contractor executes a payment voucher in an amount sufficient to cover the draft. The voucher is forwarded to the Federal Reserve Bank. The United States owns the account balance. See id., at 19-20, 84-90a, 109-113. As a result of all this, only federal funds are expended when the contractor makes purchases. If the Government fails to provide funding, the contractor is excused from performance of the contract, and the Government is liable for all properly incurred claims.Prior to July 1, 1977, the Government's contracts with Sandia, Zia, and LACI did not refer to the contractors as federal "agents." On that date - some two years after the commencement of this litigation - the agreements were modified to state that each contractor "acts as an agent [of the Government] ... for certain purposes," including the disbursement of Government funds and the "purchase, lease, or other acquisition" of property. Id., at 50-51, 55-56, 59-60. This was designed to recognize what was described as the "longstanding agency status and authority" of the contractors. Id., at 50, 55, 59. Thus it was made clear that Sandia and Zia were authorized to "pledge the credit of the United States," id., at 52 and 56, and the Government declared that it "considers all obligations properly incurred" in accordance with the contractual provisions to be Government obligations "from their inception." Id., at 52 (Sandia), 56 (Zia), and 60 (LACI). At the same time, however, the United States denied any intent "formally and directly [to] designat[e] the contractors as agents," id., at 64, and each modification stated that it did not "create rights or obligations not otherwise provided for in the contract." Id., at 52, 57, 61.BNew Mexico imposes a gross receipts tax and a compensating use tax on those doing business within the State. With limited exceptions, "[f]or the privilege of engaging in business, an excise tax equal to four per cent [4%] of gross receipts is imposed on any person engaging in business in New Mexico." N. M. Stat. Ann. 72-16A-4 (Supp. 1975).7 In effect, the gross receipts tax operates as a tax on the sale of goods and services. The State also levies a compensating use tax, equivalent in amount to the gross receipts tax, "[f]or the privilege of using property in New Mexico." 72-16A-7. This is imposed on property acquired out-of-state in a "transaction that would have been subject to the gross receipts tax had it occurred within [New Mexico]." 72-16A-7(A)(2).8 Thus the compensating use tax functions as an enforcement mechanism for the gross receipts tax by imposing a levy on the use of all property that has not already been taxed; the State collects the same percentage regardless of where the property is purchased. Neither tax, however, is imposed on the "receipts of the United States or any agency or instrumentality thereof," or on the "use of property by the United States or any agency or instrumentality thereof." 72-16A-12.1, 72-16A-12.2.Without objection, Zia and LACI each year paid the New Mexico gross receipts tax on the fixed fees they received from the Federal Government. But the Government argued that the contractors' other expenditures and operations are constitutionally immune from state taxation. In July 1975 the United States therefore initiated this suit in the United States District Court for the District of New Mexico, seeking a declaratory judgment that advanced funds are not taxable gross receipts to the contractors; that the receipts of vendors selling tangible property to the United States through the contractors cannot be taxed by the State; and that the use of Government-owned property by the contractors is not subject to the State's compensating use tax. App. 11-12.9 The District Court granted the United States summary judgment. Relying on Kern-Limerick, Inc. v. Scurlock, , the court determined that the crucial inquiry is whether the contractors are "procurement agents" for the Government. The court answered that question in the affirmative, noting that the Government "maintains control over the contractors' procurement systems, property management and disposal practices, method of payment of operational costs, and other operations under the contracts." 455 F. Supp. 993, 997 (1978). That analysis led the court to identify an agency relationship existing even in the years prior to the 1977 contract modifications. Ibid. The court therefore held that the gross receipts tax cannot constitutionally be applied to purchases by the contractors; because the court viewed the compensating use tax as a correlative of the receipts tax, it determined that the use tax also was invalid as applied to Sandia, Zia, and LACI. Id., at 998. Finally, the court ruled that advanced funds do not serve as compensation to the contractors, and therefore cannot be taxed as gross receipts. Id., at 998-999.The United States Court of Appeals for the Tenth Circuit reversed. 624 F.2d 111 (1980). In its view, this Court's decisions in the tax immunity area have been "more concerned with preserving the delicate financial balance between our co-existing sovereignties than with rigid adherence to agency law terminology." Id., at 116. Advanced funding, the court declared, "is simply another means of reimbursement devised by accountants to eliminate major weaknesses in the government's bookkeeping practices." Id., at 119. In meeting overhead and salaries with Government funds, the contractors were satisfying their own obligations, and they exercised dominion over the funds by issuing drafts to obligees. And insofar as the claims of third-party vendors are concerned, the court found federal "responsibility for properly incurred claims to be inherent in all cost-type contracts," id., at 119, n. 9; any number of businesses act under letters of credit from banks and other sureties, and the Federal Government itself finances a variety of organizations - including States and local governments - in such a manner. The other contractual provisions relied on by the District Court - federal control over procurement systems, management practices, and the like - failed to impress the Court of Appeals. It concluded that the Government-contractor relationship, viewed as a whole, did not "`so incorporat[e] [the contractors] into the government structure as to [make them] instrumentalities of the United States ... .'" Id., at 118, quoting United States v. Boyd, . And that Sandia received no fee for its services was of little consequence, in the court's view, because "decisions on the amount of fee, if any, to be paid a government contractor are not made primarily with agency consequences in mind." 624 F.2d, at 120. Since the 1977 contractual amendments by their terms added nothing of substance to the agreements, they did not affect the court's analysis. The District Court was directed to enter summary judgment for New Mexico. Id., at 121.The United States sought certiorari, and we granted the writ to consider the seemingly intractable problems posed by state taxation of federal contractors. .IIAWith the famous declaration that "the power to tax involves the power to destroy," McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), Chief Justice Marshall announced for the Court the doctrine of federal immunity from state taxation. In so doing he introduced the Court to what has become a "much litigated and often confused field," United States v. City of Detroit, , one that has been marked from the beginning by inconsistent decisions and excessively delicate distinctions.McCulloch itself relied on generalized notions of federal supremacy to invalidate a state tax on the Second Bank of the United States. The Court gave broad scope to state power: the opinion declined to "deprive the States of any resources which they originally possessed. It does not extend to ... a tax imposed on the interest which the citizens of Maryland may hold in [the Bank], in common with other property of the same description throughout the State." 4 Wheat., at 436. Not long afterwards, however, Chief Justice Marshall, speaking for the Court, seemingly disregarded the McCulloch dictum in striking down a state tax on interest income from federal bonds, explaining that such levies cannot constitutionally fall on an "operation essential to the important objects for which the government was created." Weston v. City Council of Charleston, 2 Pet. 449, 467 (1829). During the following century the Court took to heart Weston's expansive analysis of federal tax immunity, invalidating, among many others, state taxes on the income of federal employees, Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842); on income derived from property leased from the Federal Government, Gillespie v. Oklahoma, ; and on sales to the United States, Panhandle Oil Co. v. Mississippi ex rel. Knox, .10 These decisions, it has been said, were increasingly divorced both from the constitutional foundations of the immunity doctrine and from "the actual workings of our federalism," Graves v. New York ex rel. O'Keefe, (Frankfurter, J., concurring), and in James v. Dravo Contracting Co., , by a 5-4 vote, the Court marked a major change in course. Over the dissent's justifiable objections that it was "overrul[ing], sub silentio, a century of precedents," id., at 161, the Court upheld a state tax on the gross receipts of a contractor providing services to the Federal Government:"`[I]t is not necessary to cripple [the State's power to tax] by extending the constitutional exemption from taxation to those subjects which fall within the general application of non-discriminatory laws, and where no direct burden is laid upon the governmental instrumentality, and there is only a remote, if any, influence upon the exercise of the functions of government.'" Id., at 150, quoting Willcuts v. Bunn, . The Court's more recent cases involving federal contractors generally have hewed to the James analysis. Alabama v. King & Boozer, , upheld a state tax on sales to a federal contractor, overruling Panhandle Oil Co. v. Mississippi ex rel. Knox, supra. Decisions such as United States v. City of Detroit, supra, have validated state use taxes on private entities holding federal property.Even the Court's post-James decisions, however, cannot be set in an entirely unwavering line. United States v. Allegheny County, , invalidated a state property tax that included in the assessment the value of federal machinery held by a private party; 14 years later that decision in large part was overruled by United States v. City of Detroit, supra. See United States v. County of Fresno, , n. 10 (1977). In Livingston v. United States, , summarily aff'g 179 F. Supp. 9 (EDSC 1959), the Court, without opinion or citation, approved the invalidation of a state use tax as applied to a federal contractor. Yet United States v. Boyd, supra, upheld a virtually identical state tax, seemingly confining Livingston to its "extraordinary" facts. 378 U.S., at 45, n. 6.Similarly, the decisions fail to speak with one voice on the relevance of traditional agency rules in determining the tax-immunity status of federal contractors. Thus, Alabama v. King & Boozer, supra, declined to find immunity in part because the contractors involved lacked the "status of agents," 314 U.S., at 13, and United States v. Township of Muskegon, , upheld a use tax on a federal contractor with the caveat that the "case might well be different if [the contractor] ... could properly be called a `servant' of the United States in agency terms." See Kern-Limerick, Inc. v. Scurlock, . Yet James v. Dravo Contracting Co., supra, stated flatly that tax immunity is not dependent "`upon the nature of the agents, or upon the mode of their constitution, or upon the fact that they are agents.'" 302 U.S., at 154, quoting Railroad Co. v. Peniston, 18 Wall. 5, 36 (1873) (plurality opinion). And United States v. Boyd, supra, rejected the Government's argument that its contractors were federal agents and therefore tax immune, stating simply that the private entities were not "instrumentalities of the United States." 378 U.S., at 48.BWe have concluded that the confusing nature of our precedents counsels a return to the underlying constitutional principle. The one constant here, of course, is simple enough to express: a State may not, consistent with the Supremacy Clause, U.S. Const., Art. VI, cl. 2, lay a tax "directly upon the United States." Mayo v. United States, . While "[o]ne could, and perhaps should, read M'Culloch ... simply for the principle that the Constitution prohibits a State from taxing discriminatorily a federally established instrumentality," First Agricultural Bank v. State Tax Comm'n, (dissenting opinion), the Court has never questioned the propriety of absolute federal immunity from state taxation. And after 160 years, the doctrine has gathered "a momentum of authority that reflects, if not a detailed exposition of considerations of policy demanded by our federal system, certainly a deep instinct that there are such considerations ... ." City of Detroit v. Murray Corp., (opinion of Frankfurter, J.).But the limits on the immunity doctrine are, for present purposes, as significant as the rule itself. Thus, immunity may not be conferred simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy. That is the import of Alabama v. King & Boozer, where a sales tax was imposed on the gross receipts of a vendor selling to a cost-plus Government contractor. The Court found it constitutionally irrelevant that the United States reimbursed all the contractor's expenditures, including those going to meet the tax: the Government's right to be free from state taxation "does not spell immunity from paying the added costs, attributable to the taxation of those who furnish supplies to the Government and who have been granted no tax immunity." 314 U.S., at 9. That the contractor is purchasing property for the Government is similarly irrelevant; in King & Boozer, title to goods purchased by the contractor vested in the United States immediately upon shipment by the seller. Id., at 13.Similarly, immunity cannot be conferred simply because the state tax falls on the earnings of a contractor providing services to the Government. James v. Dravo Contracting Co., supra. And where a use tax is involved, immunity cannot be conferred simply because the State is levying the tax on the use of federal property in private hands, United States v. City of Detroit, supra, even if the private entity is using the Government property to provide the United States with goods, United States v. Township of Muskegon, supra; City of Detroit v. Murray Corp., supra, or services, Curry v. United States, ; United States v. Boyd, supra. In such a situation the contractor's use of the property "in connection with commercial activities carried on for profit," is "a separate and distinct taxable activity." United States v. Boyd, 378 U.S., at 44. Indeed, immunity cannot be conferred simply because the tax is paid with Government funds; that was apparently the case in Boyd, where the contractor made expenditures under an advanced funding arrangement similar to the one involved here. Id., at 41.What the Court's cases leave room for, then, is the conclusion that tax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned. This view, we believe, comports with the principal purpose of the immunity doctrine, that of forestalling "clashing sovereignty," McCulloch v. Maryland, 4 Wheat., at 430, by preventing the States from laying demands directly on the Federal Government. See City of Detroit v. Murray Corp., 355 U.S., at 504-505 (opinion of Frankfurter, J.). As the federal structure - along with the workings of the tax immunity doctrine11 - has evolved, this command has taken on essentially symbolic importance, as the visible "consequence of that [federal] supremacy which the constitution has declared." McCulloch v. Maryland, 4 Wheat., at 436. At the same time, a narrow approach to governmental tax immunity accords with competing constitutional imperatives, by giving full range to each sovereign's taxing authority. See Graves v. New York ex rel. O'Keefe, 306 U.S., at 483.Thus, a finding of constitutional tax immunity requires something more than the invocation of traditional agency notions: to resist the State's taxing power, a private taxpayer must actually "stand in the Government's shoes." City of Detroit v. Murray Corp., 355 U.S., at 503 (opinion of Frankfurter, J.). That conclusion is compelled by the Court's principal decisions exploring the nature of the Constitution's immunity guarantee. Chief Justice Hughes' opinion for the Court in James, which set the doctrine on its modern course, suggested that a state tax is impermissible when the taxed entity is "so intimately connected with the exercise of a power or the performance of a duty" by the Government that taxation of it would be "`a direct interference with the functions of government itself.'" 302 U.S., at 157, quoting Metcalf & Eddy v. Mitchell, . And the point is settled by Boyd, the Court's most recent decision in the field. There, the Government argued that its contractors were tax-exempt because they were federal agents. Without any discussion of traditional agency rules the Court rejected that suggestion out-of-hand, declaring that "we cannot believe that [the contractors are] `so assimilated by the Government as to become one of its constituent parts.'" 378 U.S., at 47, quoting United States v. Township of Muskegon, 355 U.S., at 486. And the Court continued:"Should the [Atomic Energy] Commission intend to build or operate the plant with its own servants and employees, it is well aware that it may do so and familiar with the ways of doing it. It chose not to do so here. We cannot conclude that [the contractors], both cost-plus contractors for profit, have been so incorporated into the government structure as to become instrumentalities of the United States and thus enjoy governmental immunity." 378 U.S., at 48. The Court's other cases describing the nature of a federal instrumentality have used similar language: "virtually ... an arm of the Government," Department of Employment v. United States, 385 U.S., at 359-360; "integral parts of [a governmental department]," and "arms of the Government deemed by it essential for the performance of governmental functions," Standard Oil Co. v. Johnson, .Granting tax immunity only to entities that have been "incorporated into the government structure" can forestall, at least to a degree, some of the manipulation and wooden formalism that occasionally have marked tax litigation - and that have no proper place in determining the allocation of power between coexisting sovereignties. In this case, for example, the Government and its contractors modified their agreements two years into the litigation in an obvious attempt to strengthen the case for nonliability. Yet the Government resists using its own employees for the tasks at hand - or, indeed, even formally designating Sandia, Zia, and LACI as agents - because it seeks to tap the expertise of industry, without subjecting its contractors to burdensome federal procurement regulations. See Hiestand & Florsheim, at 81; App. 182-184. Instead, the Government earnestly argues that its contractors are entitled to tax immunity because, among other things, they draw checks directly on federal funds, instead of waiting a time for reimbursement. Brief for United States 32-35. We cannot believe that an immunity of constitutional stature rests on such technical considerations, for that approach allows "any government functionary to draw the constitutional line by changing a few words in a contract." Kern-Limerick, Inc. v. Scurlock, 347 U.S., at 126 (dissenting opinion).If the immunity of federal contractors is to be expanded beyond its narrow constitutional limits, it is Congress that must take responsibility for the decision, by so expressly providing as respects contracts in a particular form, or contracts under particular programs. James v. Dravo Contracting Co., 302 U.S., at 161; Carson v. Roane-Anderson Co., . And this allocation of responsibility is wholly appropriate, for the political process is "uniquely adapted to accommodating the competing demands" in this area. Massachusetts v. United States, (plurality opinion). See United States v. City of Detroit, 355 U.S., at 474. But absent congressional action, we have emphasized that the States' power to tax can be denied only under "the clearest constitutional mandate." Michelin Tire Corp. v. Wages, .IIIIt remains to apply these principles to the Sandia, Zia, and LACI contracts. The Government concedes that the legal incidence of the gross receipts and use taxes falls on the contractors, Brief for United States 25, and we do not disagree. See United States v. New Mexico, 581 F.2d 803, 806 (CA10 1978). The issue, then, is whether the contractors can realistically be considered entities independent of the United States. If so, a tax on them cannot be viewed as a tax on the United States itself.So far as the use tax is concerned, United States v. Boyd, supra, controls this case. The contracts at issue in Boyd were standard AEC management contracts, in all relevant respects identical to the ones here. The contractors performed maintenance and construction work at Government facilities, under the general direction of the Government. They procured materials, and paid for the goods with Government funds under an advanced funding arrangement; title passed directly from the vendor to the United States. The contractors owned none of the property involved, and received a fixed annual fee. Indeed, one of the contractor's purchase orders stated that it made purchases "for and on behalf of the Government." 378 U.S., at 42, n. 4. And the Tennessee use tax did not differ in any significant way from the use tax now before us.12 As noted above, the Government argued that this close contractual relationship made the contractors federal agents, and therefore tax immune. Yet the Court had no difficulty upholding the application of the Tennessee tax, concluding that "`[t]he vital thing' is that [the contractors are] `using the property in connection with [their] own commercial activities.'" Id., at 45, quoting United States v. Township of Muskegon, 355 U.S., at 486. That the federal property involved was being used for the Government's benefit - something that by definition will be true in virtually every management contract - was irrelevant, for the contractors remained distinct entities pursuing "private ends," and their actions remained "commercial activities carried on for profit." 378 U.S., at 44. For that reason, the contractors had not become "instrumentalities" of the United States. Id., at 48.13 The same factors are at work here. The tax, the taxed activity, and the contractual relationships do not differ from those involved in Boyd. The contractors here are privately owned corporations; "Government officials do not run [their] day-to-day operations nor does the Government have any ownership interest." First Agricultural Bank v. State Tax Comm'n, 392 U.S., at 354 (dissenting opinion). In contrast to federal employees, then, Sandia and its fellow contractors cannot be termed "constituent parts" of the Federal Government. It is true, of course, that employees are a special type of agent, and like the contractors here employees are paid for their services. But the differences between an employee and one of these contractors are crucial. The congruence of professional interests between the contractors and the Federal Government is not complete; their relationships with the Government have been created for limited and carefully defined purposes. Allowing the States to apply use taxes to such entities does not offend the notion of federal supremacy.14 For similar reasons, the New Mexico gross receipts tax must be upheld as applied to funds received by the contractors to meet salaries and internal costs. Once it is conceded that the contractors are independent taxable entities, it cannot be disputed that their gross income is taxable. This conclusion follows directly from James v. Dravo Contracting Co., supra, where the Court upheld a state tax reaching "gross amounts received from the United States." 302 U.S., at 137. In any event, incurring obligations to achieve contractual ends is not significantly different from using property for the same purposes. And despite the Government's arguments, the use of advanced funding does not change the analysis. That device is, at heart, an efficient method of reimbursing contractors - something the Government has apparently recognized in contexts other than tax litigation. See App. 31 (Sandia contract), 189 (Ninth Semiannual Report of the Atomic Energy Commission (1951)), 191 (same). If receipt of advanced funding is coextensive with status as a federal instrumentality, virtually every federal contractor is, or could easily become, immune from state taxation.New Mexico's tax on sales to the contractors presents a more complex problem. So far as the use tax discussed above is concerned, the subject of the levy is the taxed entity's beneficial use of the property involved. See United States v. Boyd, 378 U.S., at 44. Unless the entity as a whole is one of the Government's "constituent parts," then, a tax on its use of property should not be seen as falling on the United States; in that situation the property is being used in furtherance of the contractor's essentially independent commercial enterprise. In the case of a sales tax, however, it is arguable that an entity serving as a federal procurement agent can be so closely associated with the Government, and so lack an independent role in the purchase, as to make the sale - in both a real and a symbolic sense - a sale to the United States, even though the purchasing agent has not otherwise been incorporated into the Government structure.Such was the Court's conclusion in Kern-Limerick, Inc. v. Scurlock, supra, a decision on which the Government heavily relies. The contractor in that case identified itself as a federal procurement agent, and when it made purchases title passed directly to the Government; the purchase orders themselves declared that the purchase was made by the Government and that the United States was liable on the sale. Equally as important, the contractor itself was not liable for the purchase price, and it required specific Government approval for each transaction. See 347 U.S., at 120-121. And, as the Court emphasized, the statutory procurement scheme envisioned the use of federal purchasing agents. Id., at 114. The Court concluded that a sale to the contractor was in effect a sale to the United States, and therefore not a proper subject for the Arkansas sales tax.15 As we have noted elsewhere, Kern-Limerick "stands only for the proposition that the State may not impose a tax the legal incidence of which falls on the Federal Government." United States v. County of Fresno, 429 U.S., at 459-460, n. 7.We think it evident that the Kern-Limerick principle does not invalidate New Mexico's sales tax as applied to purchases made by the contractors here. Even accepting the Government's representation that it is directly liable to vendors for the purchase price, see Tr. of Oral Arg. 42-45,16 Sandia and Zia nevertheless make purchases in their own names - Sandia, in fact, is contractually obligated to do so, App. 37 - and presumably they are themselves liable to the vendors. Vendors are not informed that the Government is the only party with an independent interest in the purchase, as was true in Kern-Limerick, and the Government disclaims any formal intention to denominate the contractors as purchasing agents. Similarly, Sandia and Zia need not obtain advance Government approval for each purchase.17 These factors demonstrate that the contractors have a substantial independent role in making purchases, and that the identity of interests between the Government and the contractors is far from complete. As a result, sales to Zia and Sandia are in neither a real nor a symbolic sense sales to the "United States itself." It is true that title passes directly from the vendor to the Federal Government, but that factor alone cannot make the transaction a purchase by the United States, so long as the purchasing entity, in its role as a purchaser, is sufficiently distinct from the Government. Alabama v. King & Boozer, 314 U.S., at 13.There is a final irony in this case. In Carson v. Roane-Anderson Co., , the Court considered a state sales and use tax imposed on AEC management contractors. The terms of the contracts were in most relevant respects identical to the ones here, and insofar as they differed they established an even closer relationship between the Government and the contractors. See Brief for United States, O. T. 1951, Nos. 186 and 187, pp. 8-12. The Court held that in the last sentence of 9(b) of the Atomic Energy Act of 1946, 60 Stat. 765 - which barred state or local taxation of AEC "activities" - Congress had statutorily exempted the contractors from state taxation, because the operations of management contractors were Commission activities. 342 U.S., at 234. Congress responded by repealing the last sentence of 9(b), Pub. L. 262, 67 Stat. 575, in an attempt to "place the Commission and its activities on the same basis, with respect to immunity from State and local taxation, as other Federal agencies." S. Rep. No. 694, 83d Cong., 1st Sess., 3 (1953). In doing so, Congress endorsed the principle that "constitutional immunity does not extend to cost-plus-fixed-fee contractors of the Federal Government, but is limited to taxes imposed directly upon the United States." Id., at 2.We do not suggest that the repeal of 9(b) waives the Government's constitutional tax immunity; Congress intended AEC contractors to be shielded by constitutional immunity principles "as interpreted by the courts." S. Rep. No. 694, at 3. But it is worth remarking that DOE is asking us to establish as a constitutional rule something that it was unable to obtain statutorily from Congress. For the reasons set out above, we conclude that the contractors here are not protected by the Constitution's guarantee of federal supremacy. If political or economic considerations suggest that a broader immunity rule is appropriate, "[s]uch complex problems are ones which Congress is best qualified to resolve." United States v. City of Detroit, 355 U.S., at 474.Accordingly, the judgment of the Court of Appeals is Affirmed. |
3 | [ National Labor Relations Board v. Stowe Spinning Co. ], 227] Mr. Mozart G. Ratner, of Washington, D.C., for petitioner. Mr. Paul C. Whitlock, of Charlotte, N.C., for respondents. Mr. Justice MURPHY delivered the opinion of the Court. The principal question for decision is whether the circumstances justified the finding of an unfair labor practice. A union organizer was refused the use of a company-owned meeting hall, and the union complained to the Board. After the usual proceedings, the Board found an unfair labor practice had been committed, 70 N.L.R.B. 614. The Court of Appeals refused to enforce the Board's order, 165 F.2d 609, and the case is her on certiorari. A subsidiary problem is the breadth of the order we are asked to enforce. First. We are asked to overrule the Board's finding that it is an unfair labor practice1 to discriminate against a union by denying it the only available meeting hall in a company town when the Board finds that the 'sole purpose' of the discriminatory denial is 'to impede, prevent, and discourage self-organization and collective bargaining by the ( company's) employees within the meaning of Section 7 of the Act (29 U.S.C. A. 157).' North Belmont, North Carolina, is the home of the four respondents' mills. Interlocking directorates and family ties make the four equal one for our purposes. 2 , 228] Each of the mills owns a large number of houses in North Belmont which are rented to employees. At a central location are a school, a theatre, and a building housing a post office, all owned or controlled by the mill owners. In sum, North Belmont is a company town. In December, 1944, Harris, a union organizer, appeared in North Belmont and began the first organization drive since the textile strike ten years earlier. He decided to begin with employees of respondent Stowe. A meeting hall was needed for the activity, and the post office building was the only choice open to the organizer-he was refused permission to use the school building, and was told that the theatre could be used only for motion pictures. Most of the post office building was erected by respondents for the Patriotic Order Sons of America, a 'patriotic secret order to which any male citizen of the United States of good moral character' can belong. Many of respondents' employees are members; respondents check off monthly dues. The Order's president, Baxter Black, told Harris that the proposed meeting might be held in the hall on the payment of a janitor's fee. Harris emphasized that he was willing to pay for the use of the hall. It is clear he was not asking special favors. Circulars were printed announcing the time and place of the meeting. Thereupon D. P. Stowe, for the four employer-owners, rescinded the permission granted-because Harris was a textile organizer. While the building seems to have been erected on the understanding that only the Patriotic Order might use it, that condition was never enforced , 229] until Harris' union affiliation reached the ears of the owners. Until then the Order had handled its own affairs; Black had been sure that his permission was the final word on the matter. The Board found that the refusal 'to permit use of the hall * * * under the circumstances constituted unlawful disparity of treatment and discrimination against the union.' The union's complaint also charged that several employees had been discharged because of union activity, and again the Board found for the union. The Court of Appeals enforced the reinstatement order, but refused enforcement of the order relating to the use of the hall. On the latter determination we granted certiorari3 to resolve an asserted conflict with prior decisions of this Court. Company rules in Republic Aviation Corporation v. National Labor Relations Board and National Labor Relations Board v. Le Tourneau Company of Georgia, , 157 A.L.R. 1081, forbade union solicitation on company property. Under the circumstances the Board found that these rules offended the Act, and we upheld the Board. Stowe tells us that its case is far removed from the principles established in those decisions: the Board is now invading private property unconnected with the plant, for a private purpose, in the very teeth of the Fifth Amendment. 'From Magna Charta on down,' we are warned, 'the individual has been guaranteed against disseisin of property.' A privately owned hall is different from the parking lot involved in Le Tourneau's case. In the sense suggested by Stowe, the Board finding goes further than those upheld previously by this Court. But in a larger sense it does not. We mention nothing new when we notice that union organization in a com- , 230] pany town must depend, even more than usual, on a handsoff attitude on the part of management. 4 And it is clear that one of management's chief weapons, in attempting to stifle organization, is the denial of a place to meet. 5 We cannot equate a company-dominated North Carolina mill town with the vast metropolitan centers where a number of halls are available within easy reach of prospective union members. We would be ignoring the obvious were we to hold that a common meeting place in a company town is not an important part of the company's business. The question is of course one of degree. But isolated plants must draw labor, and an element in that drawing power is a community hall of some kind. 6 In the background of discrimination found by the Board in this case, we cannot say that its conclusion should be upset. 7 As we will point out below, the Board may weigh the employer's expressed motive in determining the effect on employees of management's otherwise equivocal act. Stowe contends that its denial of facilities to the union was in accord with 8(2) of the Act, prohibiting employer interference with the formation or administration of a labor organization. One Board member agreed, citing a number of cases in which the Board had made a grant of company facilities the basis for unfair practice findings. But Stowe would have the cases hold more than they do. In each of them, granting such facilities , 231] to the union was only one facet in a pattern of domination found by the Board. 8 The opinion of the Board in this case states that the 'mere granting of a meeting place to a union by an employer under the conditions present here would not * * * in and of itself constitute unlawful assistance to that union. * * *' We have said that the Wagner Act 'left to the Board the work of applying the Act's general prohibitory language in the light of the infinite combination of events which might be charged as violative of its terms.' Republic Aviation Corporation v. National Labor Relations Board, supraat page 798, 65 S.Ct. at page 985, 157 A.L.R. 1081. Sections 8(1) and 8(2) of the Act would seem to run into each other in the situation before us, were we to forget that the Board is the agency which weighs the relevance of factural data. Presumptions such as those employed in the Peyton Packing Company case, 49 N.L.R.B. 828, at pages 843, 844,9 may be important in cases like this one. While the Wagner Act does not ask punishment for evil intent, repeated acts of discrimination may establish a natural tendency to view justifications of other labor prac ices with some skepticism. Calculating a cumulative effect on employees is not a job for this Court. We cannot , 232] say that the Board was wrong as a matter of law in view of the setting. The philosophy expressed in the Fifth Amendment does not affect the view we take. The Wagner Act was adopted pursuant to the commerce clause, and certainly can authorize the Board to stop an unfair labor practice as important as the one we are considering. Respondents are unquestionably engaged in interstate commerce within the meaning of the Act. It is not " every interference with property rights that is within the Fifth Amendment * * * Inconvenience or even some dislocation of property rights, may be necessary in order to safeguard the right to collective bargaining." at page 802, 65 S.Ct. at page 987, 157 A.L.R. 1081.10 Accordingly, we think the Court of Appeals should have upheld the Board's unfair practice charge. Second. Stowe's final contention, that the Board's order is too broad, is more serious. Stowe is ordered to 'cease and desist from * * * refusing to permit the use of the Patriotic Order Sons of America hall by its employees or employees of (the other respondents) or by Textile Workers Union of America, C.I.O., or any other labor organization, for the purpose of self-organization or collective bargaining.' There are none of the usual qualifications on the face of the order;11 one construction would permit unions to use the hall at all times, whatever the legitimate activity of the Patriotic Order. We are asked to read the decree in its background, and reject what is called a strained construction. Implicit in the order, we are told, is the word 'reasonable.' , 233] Perhaps this is true. The words of even a judicial decree must be read in their setting. But violation of the order brings the swift retribution of contempt, without the normal safeguards of a full-dress proceeding. Some notice of the prior proceeding must be taken in a contempt action-the very word 'reasonable' invites a glance at what has gone before. But too great dependence on the former action places defendants under a restraint that makes the order itself a useless formality. Again the question is of degree. In this case, however, the Board did not find that the very denial of the hall was an unfair labor practice. It found that the refusal by these respondents was unreasonable because the hall had been given freely to others, and because no other halls were available for organization. Now the Board asks us to enforce an order that simply does not mean what it says. We must require explicit language making it clear that the mere denial of facilities will not subject respondents to punishment for contempt. What the Board found, and all we are considering here, is discrimination. The decree should be modified to order respondents to refrain from any activity which would cause a union's application to be treated on a different basis than those of others similarly situated. We therefore direct the Court of Appeals to remand the case to the Board for amendment of its order to conform to the Board's findings and this opinion. Reversed and remanded. Mr. Justice JACKSON, dissenting in part. I find myself unable to join the Court's opinion because I have a different view as to the nature of the unfair labor practice involved which leads me to a different conclusion as to the remedy that the Board may prescribe. The employers' plant was located in a company-owned town. It contained only three buildings suitable for use , 234] for a public meeting. The Union needed a meeting place and sought to use any one of the three. One is a motion picture theater owned and controlled by the employers but operated by a lessee. The Union was refused its use upon the ground that it was available only for motion pictures. Another was a school building publicly owned but controlled by a school board composed entirely from officers of the employers. The Union sought to use the schoolhouse but, after some negotiations, was told by its custodian that an officer of one of the employers had issued instructions not to permit such use. The third was a building owned and controlled by the employers, occupied by the post office and a grocery store on the first floor and by a meeting hall on the second. This hall for some time had been the quarters of the Patriotic Order Sons of America, a fraternal organization which in practice had exercised full control over it and had permitted various other organizations to use it for community purposes. Its officers consented to the Union's use of the hall on the payment of a nominal janitor's fee. Before the scheduled meeting, however, an officer of the employers told the head of the fraternal order that he should not have allowed the use of the hall and caused the permission to be withdrawn. While the tenure of the fraternal organization is somewhat shadowy, it appears that it had been given at least such control of the use of the hall that its consent would have constituted a license so that the Union would not have been trespassing. But for the interference of the employers, either the schoolhouse or the Patriotic Sons hall might have been obtained. I agree with the Court that the Board was justified in finding that the employers' action in preventing the Union from obtaining this place of assembly constituted an unfair labor practice. But I do not think this finding is or can be based on discrimination. The , 235] employers, having permitted the Patriotic Sons to control use of the hall, could not properly interfere and command reversal of the Sons' approval of the Union's application. On these facts, such conduct would amount to an unfair labor practice, even though no other organization had ever been allowed to use the hall. The interference to oust the Union was enough without a discrimination, which could hardly occur unless some other union had been allowed to use the hall. Consequently, I think the Board could require the employer to notify the Patriotic Sons that it has been unfair in the objections heretofore made and that it will make no objections in the future, and that the Patriotic Sons are free to allow such temporary use if they see fit. But the Board's order goes beyond this. It has ordered that the employers take affirmative action to place the hall of the Patriotic Sons at the disposal of the Union. It is one thing to forbid the employers to bring pressure on the custodian of the hall to shut out the Union; it is another thing to order them to bring pressure on the custodian to admit the Union, or to order the employers to repossess the hall and turn it over to the Union. If the employers were controlling the hall directly, I would have serious doubts whether denial of union use of the hall could be an unfair labor practice, and equally serious doubts whether it would not be an unfair labor practice under 8(2) of the Act to allow it. Neither the complaining Union nor any other has yet been chosen as bargaining agent for these employees. For the employers to provide this Union a hall, by direct permission or by indirect pressure on the Patriotic Sons, may readily convey to employees an impression of favoring the Union thus indulged. As the court below pointed out, the policy of the Act as heretofore applied is one of preventing the employer from extending financial aid or support to any union. I think in the longrun interpretation of the Act , 236] to require a complete hands-off attitude on the part of employers will better effectuate the purposes of the Act than an occasional departure from it to require some kind of aid to a union as an expedient for correcting or punishing an unfair labor practice. If the Act permitted imposing such a penalty upon the employers, it would perhaps be appropriate to compel them to provide a meeting hall in lieu of those it kept the Union from obtaining. However, it is well established by decisions of this Court that 10(c) of the Act, 29 U.S.C.A . 160(c), is remedial, not punitive. Consolidated Edison Co. of New York v. National Labor Relations Board, ; Republic Steel Corporation v. National Labor Relations Board, . In both cases, Chief Justice Hughes said for the Court 'this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.' , 59 S. Ct. 206, 219, and , 79. Consequently, I think the order should be modified to provide that the employer shall cease and desist from interfering in any manner with the discretion of the Patriotic Sons with respect to use of the hall and that appropriate notices shall be posted. Mr. Justice REED, with whom the CHIEF JUSTICE joins, dissenting. The controlling point for decision in this case is whether the Board was justified in concluding that the four respondent companies interfered with rights guaranteed by 7 of the Wagner Act. Section 7 provides that 'Employees shall have the right to self-organization, to form, join, or assist labor organizations * * *.' 49 Stat. 452. The Board's complaint charged an unfair labor practice under 8(1) against the four respondent companies by , 237] their interference with the rights guaranteed by 7. The form of interference was the refusal of the use of a hall jointly owned by respondents to employees of one of them for the purpose of self- organization. If the four respondents violated 7, did the Board have power to redress that violation by entering 1(b) and 2(c) of its order against Stowe and similar orders against the other three respondents? Section 1(b) ordered the respondents to cease and desist from 'Refusing to permit the use of the Patriotic Order Sons of America hall by its employees or employees of Acme Spinning Company, Perfection Spinning Company, or Linford Mills, Inc., or by Textile Workers Union of America, C. I.O., or any other labor organization, for the purpose of self- organization or collective bargaining;' And 2(c) ordered respondents to 'Upon request, grant to its employees and employees of Acme Spinning Company, Perfection Spinning Company, or Linford Mills, Inc., and to Textile Workers of America, C.I.O., or any other labor organization, the use of the Patriotic Order Sons of America hall for the purposes of self-organization or collective bargaining;' The Board decided that the refusal of the hall violated 7 and concluded as a matter of law: '3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents Stowe Spinning Company, Acme Spinning Company, Perfection Spinning Company, and Linford Mills, Inc., have engaged in and are engaging in unfair labor practices within the meaning of Section 8(1) of the Act.' , 238] The Court of Appeals accurately summarized the Board's action in these words: 'It (the Board) made the finding that the owner's refusal 'to permit use of the hall for purposes of self organization in a labor union under the circumstances constituted unlawful disparity of treatment and discrimination against the Union.' It pointed out that foremost among the methods universally utilized by employees in self organization is the exercise of the constitutional right of peaceable assembly. It held that the sole purpose of the respondents' action was to impede, prevent and discourage the employees in the exercise of this basic right and that by refusing the union permission to use the only available meeting place in the community, the respondents in fact deprived the employees of Stowe of the right.' National Labor Relations Board v. Stowe Spinning Co., 4 Cir., 165 F.2d 609, 611. In reversing the Board the Court of Appeals said: '* * * the employer has not interfered with, restrained or coerced its employees in the exercise of their rights. Even though it was evident to the workers that the action of the owners of the hall was inspired by hostility to the union, the refusal did not amount to unlawful interference, restraint or coercion.' Id., 165 F.2d 611. A determination that as a matter of law it is or it is not an unfair labor practice for respondents to refuse the use of their hall for union organization purposes will decide this case. The findings show that the center of the village of North Belmont is approximately 2 1/2 miles from the center of the town of Belmont. In the village there are four textile mills and about each textile mill a number of houses that belong to the corporations that own the , 239] respective mills. At a central location in the village, reached by what we assume are public roads and streets, are the school, a theater, and a combined post office and store; above the post office and store is the meeting hall in question. These facilities, except the school, are owned jointly by the four corporations that own the mills. Neither the record nor the findings show whether or not there is privately owned realty in the village belonging to others than the textile mills, but we assume that there is none. Respondents provided the hall as a meeting place for the Patriotic Order Sons of America. The Board found, 70 N.L.R.B. 614, 621, 'As to the arrangements under which the P.O.S. of A. was permitted use of this company-owned property, Stowe credibly testified without contradiction that 'it was built especially for the Patriotic Sons of America to hold their meetings in and was not to be rented to anybody else.' He also testified:'* * * we told the Patriotic Sons of America that we were going to let them use the building free of rent, but were not going to allow it to be rented for any (other) purposes." Under such an arrangement the members of the fraternal order were licensees, who were permitted to use the hall only by virtue of the owner's consent. There was the further Board statement, quoted below, as to the use of the hall. 1 , 240] It does not appear from the record how far this village center is from the respective mills. It is clear, however, that the Patriotic Order Sons of America hall is not connected with the mill operations, nor is its use open to employees because of their employment by any of the mills. There is a distinct line of cleavage as to the rights of employees between facilities and means of production open to the use of employees through their employment contract and other property of the employer that may be used by any person other than the owner only through some contract, license, or permission, not a part of an employment contract. The undisputed evidence discloses that membership in the fraternal order is not restricted to the employees of the mills, and that it includes others. The error into which the Board fell concerning the right to use the Patriotic Order Sons of America hall is, it seems to us, that it thought the 'disparity of treatment and discrimination against the Union' involved in the refusal of the hall was a violation of the employees' 'right to self-organization, to form, join, or assist labor organizations'.2 7. It is only when there is a violation , 241] through an interference with or a restraining or coercion of employees' rights under 7 that an unfair labor practice finding may be predicated on the employer's acts. The employer is not required to aid employees to organize. The law forbids only interference. Employment in a business enterprise gives an employee no rights in the employer's other property disconnected from that enterprise. As to such property, the employer stands on the same footing as any other property owner. As indicated above, that is the condition as to the Patriotic Order Sons of America hall. The refusal of this owner to allow the hall's use for union organization is not an unfair labor practice under 7 and 8 any more than a refusal by any other private owner would be. As far as the hall is concerned, the relation of employer-employee does not exist between the mill owners and the mill workers. There cannot be an unfair labor practice as to the use of this hall under the applicable sections of the Labor Relations Act. Perh ps the ruling of this Court in Marsh v. State of Alabama, , approaches closer to this problem than any other case. There Alabama punished a distributor of religious literature for trespass when she insisted on passing out the pamphlets on a private sidewalk, used by the owners' permission to enter stores and the post office. This Court reversed and held the application of the state law of trespass violated the Fourteenth Amendment. This Court heldpage 509, 66 S.Ct. page 280: 'Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand.' Certain ex- , 242] pressions, set out below,3 occur in the opinion as to the right to private property for speech, press and assembly but they must be read in the light of the facts in the Marsh case. So read, or however read, they cannot be construed as a holding that the natural right of free expression or of assembly, guaranteed by our Constitution, is a delusion unless organizers and evangelists can commandeer private buildings for use in the propagation of their ideas. The Marsh case, in my view, goes no further than to say that the public has the same rights of discussion on the sidewalks of company towns that it has on the sidewalks of municipalities. , 243] There is nothing in this record that indicates a situation such as exists in employer-owned lumber camps or mining properties. Where an employer maintains living, recreation and work places on such business premises open to employees by virtue of their employment, it has been held that exclusion of union organizers from contact with the employees is an unfair labor practice and that the Board's ordering the employer to grant union representatives access in non-working hours to the employees under reasonable regulations is a proper means to effectuate the purposes of the Act. National Labor Relations Board v. Lake Superior Lumber Corporation, 6 Cir., 167 F.2d 147. It has never been held that where the employees do not live on the premises of their employer a union organizer has to be admitted to those premises. The p esent situation differs from the employer-controlled areas where employees both live and work in that here union organizers may solicit the employees on the streets or in their homes or at public meeting houses within a few miles of their employment. Employees are not isolated beyond the hours of labor from an organizer nor is an organizer denied access to the employees. After an organizer has convinced an employee of the value of union organization, that employee can discuss union relations with his fellow-employees during non-working hours in the mill. This gives opportunity for union membership proliferation. Republic Aviation Corporation v. National Labor Relations Board and National Labor Relations Board v. Le Tourneau Company of Georgia, , 157 A.L.R. 1081. The present case differs from the Le Tourneau and Republic cases in that in those cases the problem concerned the right of an employer to maintain discipline by forbidding employees to foster by personal solicitation union organization on the grounds or in the plant of the company during the employees' non-working time. We held that, unless there were particular circumstances that justified such a regulation to secure discipline and pro- , 244] duction, the employer must allow such discussion. Republic Aviation Corporation v. National Labor Relations Board, supra. The Board now seeks an extension of this rule. It is argued that where the only readily available meeting place is a piece of property belonging to the employer, the Board may require him to permit his employees to use that meeting place for presentation of arguments for unionization. Even where the employer has allowed other organizations to use his property, I do not think that the words of the statute guaranteeing employees the right to organize and to form labor unions permit such an extension. Employment furnishes no basis for employee rights to the control of property for union organization when the property is not a part of the premises of the employer, used in his business. So to construe the statute raises serious problems under the Fifth Amendment. Would the theater, also owned by the mill proprietors, be subject to the union's user? Would that construction as applied in the finding and particularly in the earlier quoted sections of the order deprive respondents of their property without just compensation or force private owners to devote their property to private purposes, i.e., union organization? Definite legislative language only would authorize such a construction of this statute. United States v. C.I.O., , 120, 121, 1356. Labor unions do not have the same right to utilize the property of an employer not directly a part of the employment facilities, that an employer has. The Board cannot require that such meeting places be furnished for employees by an employer under the terms of the Act. To require the employer to allow labor union meetings in or on property entirely disconnected in space and use from the business of the employer and employees is too extravagant an extension of the meaning of the Act for me to believe it is within its language or the purpose of Congress. I would affirm the Court of Appeals. |
7 | Georgia taxed retirement benefits paid by the Federal Government, but exempted those paid by the State, until this Court held, in 1989, that such a scheme violates the Federal Constitution. Georgia then repealed its state retiree tax exemption, but did not offer federal retirees refunds for the unconstitutional taxes they had paid before the Court's 1989 decision. Petitioner Reich, a federal retiree, sought redress under a Georgia statute requiring refunds of "illegally assessed" taxes. In affirming the state trial court's denial of such relief, the State Supreme Court held that the refund statute does not apply where the law under which the taxes were assessed and collected was itself subsequently declared to be invalid. It then denied Reich's petition seeking reconsideration under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, , and similar cases, which establish that due process requires a "clear and certain" remedy for taxes collected in violation of federal law, and that a State may provide that remedy before the disputed taxes are paid (predeprivation), after they are paid (postdeprivation), or both. Reich petitioned for certiorari, and this Court remanded for further consideration in light of Harper v. Virginia Dept. of Taxation_, which had relied on McKesson in circumstances similar to this case. In again denying Reich's refund claim, the State Supreme Court reviewed Georgia's predeprivation remedies and found those remedies to be "ample."Held: The Georgia Supreme Court erred in relying on Georgia's predeprivation remedies to deny relief. Although due process, under McKesson, allows a State to maintain a remedial scheme that is exclusively predeprivation, exclusively postdeprivation, or a hybrid, Page II and to reconfigure its scheme over time to fit changing needs, it may not do what Georgia did here: "bait and switch" by reconfiguring, unfairly, in midcourse. Specifically, Georgia held out what plainly appeared to be a "clear and certain" postdeprivation remedy, its tax refund statute, and then declared, only after Reich and others had paid the disputed taxes, that no such remedy exists. In this regard, the State Supreme Court's reliance on predeprivation procedures was entirely beside the point (and thus error), because even assuming the constitutional adequacy of those procedures - an issue not here addressed - no reasonable taxpayer would have thought that they represented, in light of the apparent applicability of the refund statute, the exclusive remedy for unlawful taxes. Cf. NAACP v. Alabama ex rel. Patterson, . The case is remanded for the provision of meaningful backward-looking relief consistent with due process and the McKesson line of cases. Pp. 4-7. 263 Ga. 602, 437 S.E.2d 320, reversed and remanded.O'CONNOR, J., delivered the opinion for a unanimous Court. [ REICH v. COLLINS, ___ U.S. ___ (1994), 1] JUSTICE O'CONNOR delivered the opinion of the Court.In a long line of cases, this Court has established that due process requires a "clear and certain" remedy for taxes collected in violation of federal law. Atchison, T. & S. F. R. Co. v. O'Connor (Holmes, J.). A State has the flexibility to provide that remedy before the disputed taxes are paid (predeprivation), after they are paid (postdeprivation), or both. But what it may not do, and what Georgia did here, is hold out what plainly appears to be a "clear and certain" postdeprivation remedy and then declare, only after the disputed taxes have been paid, that no such remedy exists.IFor many years, numerous States, including Georgia, exempted from state personal income tax retirement benefits paid by the State, but not retirement benefits paid by the Federal Government (or any other employer). In March 1989, this Court held that such a tax scheme violates the constitutional intergovernmental tax immunity doctrine, which dates back to McCulloch v. Maryland, 4 Wheat. 316 (1819), and has been generally [ REICH v. COLLINS, ___ U.S. ___ (1994), 2] codified at 4 U.S.C. 111. See Davis v. Michigan Dept. of Treasury, .In the aftermath of Davis, most of these States, Georgia included, repealed their special tax exemptions for state retirees, but few offered federal retirees any refunds for the unconstitutional taxes they had paid in the years before Davis was decided. Not surprisingly, a great deal of litigation ensued in an effort to force States to provide refunds. The instant suit is part of that litigation.In April 1990, Reich, a retired federal military officer, sued Georgia in Georgia state court, seeking a refund for the tax years 1980 and after. The principal legal basis for Reich's lawsuit was Georgia's tax refund statute, which provides: "A taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from him under the laws of this state, whether paid voluntarily or involuntarily ... ." Ga. Code Ann. 48-2-35 (a) (Supp. 1994).The Georgia trial court first decided that, because of 48-2-35's statute of limitations, Reich's refund request was limited to the tax years 1985 and after. Even as to these later tax years, however, the trial court refused to grant a refund, and the Georgia Supreme Court affirmed. See Reich v. Collins, 262 Ga. 625, 422 S.E.2d 846 (1992) (Reich I). The Georgia high court explained that it was construing the refund statute not to apply to "the situation where the law under which the taxes are assessed and collected is itself subsequently declared to be unconstitutional or otherwise invalid." Id., at 628-629, 422 S.E.2d, at 849.Reich then petitioned the Georgia Supreme Court for reconsideration of its decision on the grounds that even if the Georgia tax refund statute does not require a refund, federal due process does - due process, that is, as interpreted by McKesson Corp. v. Division of Alcoholic [ REICH v. COLLINS, ___ U.S. ___ (1994), 3] Beverages and Tobacco, Fla. Dept. of Business Regulation, , and the long line of cases upon which McKesson depends. See id., at 32-36, citing Iowa-Des Moines Nat. Bank v. Bennett; Montana Nat. Bank of Billings v. Yellowstone County; Carpenter v. Shaw; Ward v. Board of County Commr's of Love County; Atchison, T. & S. F. R. Co. v. O'Connor; see generally Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1733, 1824-1830 (1991). As we said, these cases stand for the proposition that "a denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of the United States by compulsion is itself in contravention of the Fourteenth Amendment," Carpenter, supra, at 369, the sovereign immunity States traditionally enjoy in their own courts notwithstanding. (We should note that the sovereign immunity States enjoy in federal court, under the Eleventh Amendment, does generally bar tax refund claims from being brought in that forum. See Ford Motor Co. v. Department of Treasury of Ind., .)Reich's petition for reconsideration in light of McKesson was denied. He then petitioned for certiorari. While the petition was pending, we decided Harper v. Virginia Dept. of Taxation___ (1993), which relied on McKesson in circumstances similar to this case. Accordingly, we remanded Reich's case to the Georgia Supreme Court for further consideration in light of Harper. See Reich v. Collins___ (1993).On remand, the Georgia Supreme Court focused on the portion of Harper explaining that, under McKesson, a State is free to provide its "clear and certain" remedy in an exclusively predeprivation manner. "[A] meaningful opportunity for taxpayers to withhold contested tax assessments and to challenge their validity in a [ REICH v. COLLINS, ___ U.S. ___ (1994), 4] predeprivation hearing," we said, is "`a procedural safeguard [against unlawful deprivations] sufficient by itself to satisfy the Due Process Clause.'" See Harper, 509 U.S., ___, (slip op., at 12-13), quoting McKesson, 496 U.S., at 38, n. 21. The court then reviewed Georgia's predeprivation procedures, found them "ample," and denied Reich's refund claim. Reich v. Collins, 263 Ga. 602, 604, 437 S.E.2d 320, 322 (1993) (Reich II).Reich again petitioned for certiorari, and we granted the writ___ (1994), to consider whether it was proper for the Georgia Supreme Court to deny Reich relief on the basis of Georgia's predeprivation remedies.IIThe Georgia Supreme Court is no doubt right that, under McKesson, Georgia has the flexibility to maintain an exclusively predeprivation remedial scheme, so long as that scheme is "clear and certain." Due process, we should add, also allows the State to maintain an exclusively postdeprivation regime, see, e.g., Bob Jones Univ. v. Simon, , or a hybrid regime. A State is free as well to reconfigure its remedial scheme over time, to fit its changing needs. Such choices are generally a matter only of state law.But what a State may not do, and what Georgia did here, is to reconfigure its scheme, unfairly, in mid-course - to "bait and switch," as some have described it. Specifically, in the mid-1980's, Georgia held out what plainly appeared to be a "clear and certain" postdeprivation remedy, in the form of its tax refund statute, and then declared, only after Reich and others had paid the disputed taxes, that no such remedy exists. In this regard, the Georgia Supreme Court's reliance on Georgia's predeprivation procedures was entirely beside the point (and thus error), because even assuming the constitutional adequacy of these procedures - an issue on which we express no view - no reasonable taxpayer [ REICH v. COLLINS, ___ U.S. ___ (1994), 5] would have thought that they represented, in light of the apparent applicability of the refund statute, the exclusive remedy for unlawful taxes. See generally Rakowski, Harper and Its Aftermath, 1 Fla. Tax Rev. 445, 474 (1993).Nor can there be any question that, during the 1980's, prior to Reich I, Georgia did appear to hold out a "clear and certain" postdeprivation remedy. To recall, the Georgia refund statute says that the State "shall" refund "any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from [a taxpayer] under the laws of this state, whether paid voluntarily or involuntarily ... ." Ga. Code Ann. 48-2-35 (a) (Supp. 1994) (emphasis added). In our view, the average taxpayer reading this language would think it obvious that state taxes assessed in violation of federal law are "illegally assessed" taxes. Certainly the United States Court of Appeals for the Eleventh Circuit thought this conclusion was obvious when, in a 1986 case, it denied federal court relief to taxpayers raising claims similar to Reich's, in part because it thought Georgia's refund statute applied to the claims. See Waldron v. Collins, 788 F.2d 736, 738, cert. denied, [.]Respondents, moreover, do not point to any Georgia Supreme Court cases prior to Reich I that put any limiting construction on the statute's sweeping language; indeed, the cases we have found are all entirely consistent with that language's apparent breadth. See, e.g., Georgia v. Private Truck Council of America, Inc., 258 Ga. 531, 371 S.E.2d 378 (1988); Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 4 (1972); Parke, Davis & Co. v. Cook, 198 Ga. 457, 31 S.E.2d 728 (1944); Wright v. Forrester, 192 Ga. 864, 16 S.E.2d 873 (1941). Even apart from the statute and the cases, we find it significant that, for obvious reasons, States ordinarily prefer that taxpayers pursue only postdeprivation remedies, i.e., [ REICH v. COLLINS, ___ U.S. ___ (1994), 6] that taxpayers "pay first, litigate later." This preference is significant in that it would seem especially unfair to penalize taxpayers who may have ignored the possibility of pursuing predeprivation remedies out of respect for that preference.In many ways, then, this case bears a remarkable resemblance to NAACP v. Alabama ex rel. Patterson, (Harlan, J.). There, an Alabama trial court held the NAACP in contempt for failing to comply with a discovery order to produce its membership lists, and the Alabama Supreme Court denied review of the constitutionality of the contempt judgment on the grounds that the organization failed earlier to pursue a mandamus action to quash the underlying discovery order. The Court found that the Alabama high court's refusal to review the contempt judgment was error. Prior Alabama law, the Court said, showed "unambiguous[ly]" that judicial review of contempt judgments had consistently been available, the existence of mandamus notwithstanding. Id., at 456. For good measure, the Court also looked at prior Alabama law on mandamus and found nothing "suggest[ing] that mandamus is the exclusive remedy" in this situation. Id., at 457 (emphasis in original). Justice Harlan thus concluded, "Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights." Id., at 457-458, citing Brinkerhoff-Faris Trust and Savings Co. v. Hill (due process violated when state court denied injunction against collection of unlawful taxes on the basis of taxpayer's failure to pursue administrative remedies, where State's prior "settled" law made clear that no such administrative remedies existed); see generally Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1137-1139 (1986). [ REICH v. COLLINS, ___ U.S. ___ (1994), 7] Finally, Georgia contends that Reich had no idea (before Davis) that the taxes he was paying throughout the 1980's might be unconstitutional. Even assuming Reich had no idea, however, we are not sure we understand the argument. If the argument is that Reich would not have taken advantage of the State's predeprivation remedies no matter how adequate they were (and thus has no standing to complain of those remedies), the argument is beside the point for the same reason that we said that the Georgia Supreme Court's reliance on those remedies was beside the point: Reich was entitled to pursue what appeared to be a "clear and certain" postdeprivation remedy, regardless of the State's predeprivation remedies. Alternatively, if the argument is that Reich needed to have known of the unconstitutionality of his taxes in order to pursue the State's postdeprivation remedy, the argument is wrong. It is wrong because Georgia's refund statute has a relatively lengthy statute of limitations period, and, at least until this case, see Reich I, 262 Ga., at 629, 422 S.E.2d, at 849, contained no contemporaneous protest requirement. Under such a regime, taxpayers need not have taken any steps to learn of the possible unconstitutionality of their taxes at the time they paid them. Accordingly, they may not now be put in any worse position for having failed to take such steps.For the reasons stated, the judgment is reversed and the case remanded for the provision of "`meaningful backward-looking relief,'" Harper, 509 U.S., at ___, (slip op., at 13), quoting McKesson, 496 U.S., at 31, consistent with due process and our McKesson line of cases. See, e.g., Carpenter v. Shaw.It is so ordered. Page I |
7 | Mr. Robert L. Werner, of New York City, for petitioner. Mr. Thomas L. Preston, of Norfolk, Va., for respondents Powell and others. Mr. Thomas W. Davis, of Wilmington, N.C., for respondent Atlantic Coast Line R. Co. Mr. Justice DOUGLAS delivered the opinion of the Court. These cases involve controversies between the United States and respondent carriers over the transportation charges for shipments of government property in 1941. In one case phosphate rock and superphosphate are involved; in the other, phosphate rock. In both the commodities were purchased by the United States, shipped on government bills of lading over the lines of respondents, and consigned to the British Ministry of War Transport. They were exported to Great Britain under the Lend-Lease Act of March 11, 1941, 55 Stat. 31, 22 U.S.C.Supp. 1, 411 et seq., 22 U.S.C.A. 411 et seq., for use as farm fertilizer under Britain's wartime program for intensified production of food. It is agreed that these shipments were 'defense articles' as defined in 2 of that Act. 1 Respondents billed the United States for transportation charges on these shipments at the commercial rate and were paid at that rate. The Seaboard is a land-grant railroad. The Atlantic Coast Line is not; but it entered into an equalization agreement with the United States in 1938 under which it agreed to accept land-grant rates for shipments which the United States could alternatively move over a land-grant road. 2 The General Accounting Office excepted to these payments on the ground that land-grant rates were applicable. The amounts of the alleged over-payments were deducted from subsequent bills concededly due by the United States. Respondents thereupon instituted suits under the Tucker Act, 36 Stat. 1091, 1093, as amended, 28 U.S.C. 41(20), 28 U.S.C.A. 41(20), to recover the amounts withheld. The United States counterclaimed for the difference between the amounts due under the commercial rate and those due under the land-grant rate and asked that the difference be set off against the claims of respondents and that the complaints be dismissed. The District Courts gave judgment for respondents. The Circuit Court of Appeals affirmed. 4 Cir., 152 F.2d 228, 230. The cases are here on petitions for writs of certiorari which we granted because of the importance of determining the controlling principle for settlement of the many claims of this character against the Government. For years the land-grant rate was fifty per cent of the commercial rate and was applicable to the transportation of property or troop of the United States. 43 Stat. 477, 486, 10 U.S.C. 1375, 10 U.S.C.A. 1375; United States v. Union Pacific R. Co., ; Southern Ry. Co. v. United States, . A change was effected by the Transportation Act of September 18, 1940, 54 Stat. 898, 954, 49 U.S.C. 65, 49 U.S.C.A. 65. See Krug v. Santa Fe Pac. R. Co., . All carriers by railroad which released their land grant claims against the United States3 were by that Act entitled to the full commercial rates for all shipments, except that those rates were inapplicable to the transportation of 'military or naval property of the United States moving for military or naval and not for civil use or to the transportation of members of the military or naval forces of the United States (or property of such members) when such members are traveling on official duty ...' 321(a).4 The Seaboard filed such a re- lease. Accordingly, the question presented by these cases is whether the fertilizer was 'military or naval property of the United States moving for military or naval and not for civil use' within the meaning of 321(a) of the Transportation Act. The legislative history of the Transportation Act of 1940 throws no light on the scope of the except clause. 5 But it is apparent from the face of the statute that there are important limitations on the type of property which must be carried at less than the applicable commercial rates. In the first place, it is not the transportation of 'all' property of the United States that is excepted but only the transportation of 'military or naval' property of the United States. In the second place, the excepted property must be 'moving for military or naval and not for civil use.' Thus the scope of the clause is restricted both by the nature of the property shipped and by the use to which it will be put at the end of the transportation. The bulk and main stress of petitioner's argument are based on the Lend-Lease Act which was enacted about six months after the Transportation Act. It is pointed out that in the case of every shipment under the Lend- Lease Act there was a finding by the Executive that the shipment would promote our national defense,6 that the Act was indeed a defense measure,7 and that unless the administration of that Act is impeached, all lend-lease 'defense articles' fall within the except clause and are entitled to land-grant rates. Under conditions of modern warfare, foodstuffs lend-leased for civilian consumption, sustained the war production program and made possible the continued manufacture of munitions, arms, and other war supplies necessary to maintain the armed forces. For like reasons, fertilizers which made possible increased food production served the same end. In that sense all civilian supplies which maintained the health and vigor of citizens at home or abroad served military functions. So for us the result would be clear if the standards of the Lend- Lease Act were to be read into the Transportation Act. For the circumstance that the fertilizer was to be used by an ally rather than by this nation would not be controlling. Our difficulty, however, arises when we are asked to transplant those standards into the Transportation Act. And that difficulty is not surmounted though the exception in 321(a) be construed, as it must be, Northern Pacific R. Co. v. United States, strictly in favor of the United States. In the first place, the Transportation Act, which preceded the Lend- Lease Act by only six months, provided its own standards. They were different at least in terms from the standards of the Lend-Lease Act; and they were provided at a time when Congress was much concerned with the problems of national defense. In September, 1940, when the Transportation Act was passed, Congress and the nation were visibly aware of the possibilities of war. Appropriations for the army and navy were being increased and the scope of their operations widened, 8 alien registration was required,9 training of civilians for military service was authorized, 10 development of stock piles of strategic and critical materials was encouraged11-to mention only a few of the measures being passed in the interests of national defense. See 50 Yale L.J. 250. Moreover, the realities of total war were by then plain to all. Europe had fallen; militarism was rampant. Yet in spite of our acute awareness of the nature of total war, in spite of the many measures being enacted and the many steps being taken by the Congress and the Chief Executive to prepare our national defense, s 321(a) of the Transportation Act was couched in different terms. In other parts of that Act,12 as in many other Congressional enactments passed during the period, the exigencies of national defense constituted the standard to govern administrative action. But the standard written into 321(a) did not reflect the necessities of national defense or the demands which total war makes on an economy. It used more conventional language-'military or naval' use as contrasted to 'civil' use. That obviously is not conclusive on the problem of interpretation which these cases present. But in light of the environment in which 321(a) was written we are reluctant to conclude that Congress meant 'all property of the United States transported for the national defense' when it used more restrictive language. In the second place, the language of 321(a) emphasizes a distinction which would be largely obliterated if the requirements of national defense, accentuated by a total war being waged in other parts of the world, were read into it. Section 321(a) uses 'military or naval' use in contrast to 'civil' use. Yet if these fertilizer shipments are not for 'civil' use, we would find it difficult to hold that like shipments by the Government to farmers in this country during the course of the war were for 'civil' use. For in total war food supplies of allies are pooled; and the importance of maintaining full agricultural production in this country if the war effort was to be successful, cannot be gainsaid. When the resources of a nation are mobilized for war, most of what it does is for a military end-whether it be rationing, or increased industrial or agricultural production, price control, or the host of other familiar activities. But in common parlance, such activities are civil, not military. It seems to us that Congress marked that distinction when it wrote 321(a). If that is not the distinction, then 'for military or naval and not for civil use' would have to be read' for military or naval use or for civil use which serves the national defense.' So to construe 321(a) would, it seems to us, largely or substantially wipe out the line which Congress drew and, in time of war, would blend 'civil' and 'military' when Congress undertook to separate them. Yet 321( a) was designed as permanent legislation, not as a temporary measure to meet the exigencies of war. It was to supply the standard by which rates for government shipments were to be determined at all times-in peace as well as in war. Only if the distinction between 'military' and 'civil' which common parlance marks is preserved, will the statute have a constant meaning whether shipments are made in days of peace, at times when there is hurried activity for defense, or during a state of war. In the third place, the exception in 321(a) extends not only to the transportation of specified property for specified uses. It extends as well to 'the transportation of members of the military or naval forces of the United States (or property of such members) when such members are traveling on official duty ...'. That clause plainly does not include the multitude of civilians employed by the Gove nment during the war and exclusively engaged in furthering the war effort, whether they be lend- lease officials or others. 13 Thus, the entire except clause contained in 321(a) will receive a more harmonious construction if the scope of 'military or naval' is less broadly construed, so as to be more consonant with the restrictive sense in which it is obviously used in the personnel portion of the clause. In sum, we hold that respondents in these cases were entitled to the full applicable commercial rate for the transportation of the fertilizer. In Northern Pacific R. Co. v. United States, supra, we develop more fully the breadth of the category of 'military or naval property' of the United States 'moving for military or naval ... use'. It is sufficient here to say that the fertilizer was being transported for a 'civil' use within the meaning of 321(a), since it was destined for use by civilian agencies in agricultural projects and not for use by the armed services to satisfy any of their needs or wants or by any civilian agency which acted as their adjunct or otherwise serviced them in any of their activities.AFFIRMED. Mr. Justice RUTLEDGE dissents. |
0 | After a Drug Enforcement Administration (DEA) agent learned that respondents Karo, Horton, and Harley had ordered 50 gallons of ether from a Government informant, who had told the agent that the ether was to be used to extract cocaine from clothing that had been imported into the United States, the Government obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. With the informant's consent, DEA agents substituted their own can containing a beeper for one of the cans in the shipment. Thereafter, agents saw Karo pick up the ether from the informant, followed Karo to his house, and determined by using the beeper that the ether was inside the house where it was then monitored. The ether then moved in succession to two other houses, including Horton's, before it was moved first to a locker in one commercial storage facility and then to a locker in another such facility. Both lockers were rented jointly by Horton and Harley. Finally, the ether was removed from the second storage facility by respondent Rhodes and an unidentified woman and transported in Horton's truck, first to Rhodes' house and then to a house rented by Horton, Harley, and respondent Steele. Using the beeper monitor, agents determined that the beeper can was inside the house, and obtained a warrant to search the house based in part on information derived through use of the beeper. The warrant was executed and Horton, Harley, Steele, and respondent Roth were arrested, and cocaine was seized. Respondents were indicted for various offenses relating to the cocaine. The District Court granted respondent's pretrial motion to suppress the seized evidence on the grounds that the initial warrant to install the beeper was invalid and that the seizure was the tainted fruit of an unauthorized installation and monitoring of the beeper. The Government appealed but did not challenge the invalidation of the initial warrant. The Court of Appeals affirmed, except with respect to Rhodes, holding that a warrant was required to install the beeper in the can of ether and to monitor it in private dwellings and storage lockers, that the warrant for the search of the house rented by Horton, Harley, and Steele, and the resulting seizure were tainted by the Government's prior illegal conduct, and that therefore the evidence was properly suppressed as to Horton, Harley, Steele, Roth, and Karo. Held: 1. No Fourth Amendment interest of Karo or of any other respondent was infringed by the installation of the beeper. The informant's consent was sufficient to validate the installation. And the transfer of the beeper-laden can to Karo was neither a search nor a seizure, since it conveyed no information that Karo wished to keep private and did not interfere with anyone's possessory interest in a meaningful way. Pp. 711-713. 2. The monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. Here, if a DEA agent had entered the house in question without a warrant to verify that the ether was in the house, he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. The result is the same where, without a warrant, the Government surreptitiously uses a beeper to obtain information that it could not have obtained from outside the curtilage of the house. There is no reason in this case to deviate from the general rule that a search of a house should be conducted pursuant to a warrant. Pp. 713-718. 3. The evidence seized in the house in question, however, should not have been suppressed with respect to any of the respondents. The information that the ether was in the house, verified by use of the beeper without a warrant, would be inadmissible against those respondents with privacy interests in the house and would invalidate the search warrant, if critical to establishing probable cause. But because locating, without prior monitoring, the ether in the second storage facility was not an illegal search (use of the beeper not identifying the specific locker in which the ether was located and the locker being identified only by the smell of ether emanating therefrom) and because the ether was seen being loaded into Horton's truck, which then traveled the highways, it is evident that there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in the truck. United States v. Knotts, . Under the circumstances, the warrant affidavit, after striking the facts about monitoring the beeper while it was in the searched house, contained sufficient untainted information to furnish probable cause for issuance of the search warrant. Pp. 719-721. 710 F.2d 1433, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN and POWELL, JJ., joined, in Parts I, II, and IV of which REHNQUIST and O'CONNOR, JJ., joined, and in Part III of which BRENNAN, MARSHALL, and STEVENS, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, J., joined, post, p. 721. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 728.Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Elliott Schulder, and Vincent L. Gambale.Charles Louis Roberts argued the cause for respondents. With him on the brief for respondents Harley et al. were Joseph (Sib) Abraham, Jr., and Michael Vigil. Reber Boult, Nancy Hollander, and James Beam filed a brief for respondents Karo et al. Roger Bargas, by appointment of the Court, , filed a brief for respondent Rhodes.* [Footnote *] Gerald H. Goldstein filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.JUSTICE WHITE delivered the opinion of the Court.In United States v. Knotts, , we held that the warrantless monitoring of an electronic tracking device ("beeper")1 inside a container of chemicals did not violate the Fourth Amendment when it revealed no information that could not have been obtained through visual surveillance. In this case, we are called upon to address two questions left unresolved in Knotts: (1) whether installation of a beeper in a container of chemicals with the consent of the original owner constitutes a search or seizure within the meaning of the Fourth Amendment when the container is delivered to a buyer having no knowledge of the presence of the beeper, and (2) whether monitoring of a beeper falls within the ambit of the Fourth Amendment when it reveals information that could not have been obtained through visual surveillance. IIn August 1980 Agent Rottinger of the Drug Enforcement Administration (DEA) learned that respondents James Karo, Richard Horton, and William Harley had ordered 50 gallons of ether from Government informant Carl Muehlenweg of Graphic Photo Design in Albuquerque, N. M. Muehlenweg told Rottinger that the ether was to be used to extract cocaine from clothing that had been imported into the United States. The Government obtained a court order authorizing the installation and monitoring of a beeper in one of the cans of ether. With Muehlenweg's consent, agents substituted their own can containing a beeper for one of the cans in the shipment and then had all 10 cans painted to give them a uniform appearance.On September 20, 1980, agents saw Karo pick up the ether from Muehlenweg. They then followed Karo to his house using visual and beeper surveillance. At one point later that day, agents determined by using the beeper that the ether was still inside the house, but they later determined that it had been moved undetected to Horton's house, where they located it using the beeper. Agent Rottinger could smell the ether from the public sidewalk near Horton's residence. Two days later, agents discovered that the ether had once again been moved, and, using the beeper, they located it at the residence of Horton's father. The next day, the beeper was no longer transmitting from Horton's father's house, and agents traced the beeper to a commercial storage facility.Because the beeper equipment was not sensitive enough to allow agents to learn precisely which locker the ether was in, agents obtained a subpoena for the records of the storage company and learned that locker 143 had been rented by Horton. Using the beeper, agents confirmed that the ether was indeed in one of the lockers in the row containing locker 143, and using their noses they detected the odor of ether emanating from locker 143. On October 8 agents obtained an order authorizing installation of an entry tone alarm into the door jamb of the locker so they would be able to tell when the door was opened. While installing the alarm, agents observed that the cans containing ether were still inside. Agents ceased visual and beeper surveillance, relying instead on the entry tone alarm. However, on October 16 Horton retrieved the contents from the locker without sounding the alarm. Agents did not learn of the entry until the manager of the storage facility notified them that Horton had been there.Using the beeper, agents traced the beeper can to another self-storage facility three days later. Agents detected the smell of ether coming from locker 15 and learned from the manager that Horton and Harley had rented that locker using an alias the same day that the ether had been removed from the first storage facility. The agents obtained an order authorizing the installation of an entry tone alarm in locker 15, but instead of installing that alarm, they obtained consent from the manager of the facility to install a closed-circuit video camera in a locker that had a view of locker 15. On February 6, 1981, agents observed, by means of the video camera, Gene Rhodes and an unidentified woman removing the cans from the locker and loading them onto the rear bed of Horton's pickup truck. Using both visual and beeper surveillance agents tracked the truck to Rhodes' residence where it was parked in the driveway. Agents then observed Rhodes and a woman bringing boxes and other items from inside the house and loading the items into the trunk of an automobile. Agents did not see any cans being transferred from the pickup.At about 6 p. m. on February 6, the car and the pickup left the driveway and traveled along public highways to Taos. During the trip, the two vehicles were under both physical and electronic surveillance. When the vehicles arrived at a house in Taos rented by Horton, Harley, and Michael Steele, the agents did not maintain tight surveillance for fear of detection. When the vehicles left the Taos residence, agents determined, using the beeper monitor, that the beeper can was still inside the house. Again on February 7, the beeper revealed that the ether can was still on the premises. At one point, agents noticed that the windows of the house were wide open on a cold windy day, leading them to suspect that the ether was being used. On February 8, the agents applied for and obtained a warrant to search the Taos residence based in part on information derived through use of the beeper. The warrant was executed on February 10, 1981, and Horton, Harley, Steele, and Evan Roth were arrested, and cocaine and laboratory equipment were seized.Respondents Karo, Horton, Harley, Steele, and Roth were indicted for conspiring to possess cocaine with intent to distribute it and with the underlying offense. 21 U.S.C. 841(a)(1) and 846. Respondent Rhodes was indicted only for conspiracy to possess. The District Court granted respondents' pretrial motion to suppress the evidence seized from the Taos residence on the grounds that the initial warrant to install the beeper was invalid and that the Taos seizure was the tainted fruit of an unauthorized installation and monitoring of that beeper. The United States appealed but did not challenge the invalidation of the initial warrant. The Court of Appeals affirmed, except with respect to Rhodes, holding that a warrant was required to install the beeper in one of the 10 cans of ether and to monitor it in private dwellings and storage lockers. 710 F.2d 1433 (CA10 1983). The warrant for the search in Taos and the resulting seizure were tainted by the prior illegal conduct of the Government. The evidence was therefore properly suppressed with respect to respondents Horton, Harley, Steele, and Roth, who were held to have protectible interests in the privacy of the Taos dwelling, and with respect to respondent Karo because the beeper had been installed without a warrant and had been monitored while its ether-can host was in his house.2 We granted the Government's petition for certiorari, , which raised the question whether a warrant was required to authorize either the installation of the beeper or its subsequent monitoring. We deal with each contention in turn.IIBecause the judgment below in favor of Karo rested in major part on the conclusion that the installation violated his Fourth Amendment rights and that any information obtained from monitoring the beeper was tainted by the initial illegality, we must deal with the legality of the warrantless installation. It is clear that the actual placement of the beeper into the can violated no one's Fourth Amendment rights. The can into which the beeper was placed belonged at the time to the DEA, and by no stretch of the imagination could it be said that respondents then had any legitimate expectation of privacy in it. The ether and the original 10 cans, on the other hand, belonged to, and were in the possession of, Muehlenweg, who had given his consent to any invasion of those items that occurred. Thus, even if there had been no substitution of cans and the agents had placed the beeper into one of the original 10 cans, Muehlenweg's consent was sufficient to validate the placement of the beeper in the can. See United States v. Matlock, ; Frazier v. Cupp, .The Court of Appeals acknowledged that before Karo took control of the ether "the DEA and Muehlenweg presumably could do with the can and ether whatever they liked without violating Karo's rights." 710 F.2d, at 1438. It did not hold that the actual placement of the beeper into the ether can violated the Fourth Amendment. Instead, it held that the violation occurred at the time the beeper-laden can was transferred to Karo. The court stated: "All individuals have a legitimate expectation of privacy that objects coming into their rightful ownership do not have electronic devices attached to them, devices that would give law enforcement agents the opportunity to monitor the location of the objects at all times and in every place that the objects are taken, including inside private residences and other areas where the right to be free from warrantless governmental intrusion is unquestioned." Ibid. Not surprisingly, the Court of Appeals did not describe the transfer as either a "search" or a "seizure," for plainly it is neither. A "search" occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, . The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on. It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.We likewise do not believe that the transfer of the container constituted a seizure. A "seizure" of property occurs when "there is some meaningful interference with an individual's possessory interests in that property." Ibid. Although the can may have contained an unknown and unwanted foreign object, it cannot be said that anyone's possessory interest was interfered with in a meaningful way. At most, there was a technical trespass on the space occupied by the beeper. The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation. Compare Katz v. United States, (no trespass, but Fourth Amendment violation), with Oliver v. United States, (trespass, but no Fourth Amendment violation). Of course, if the presence of a beeper in the can constituted a seizure merely because of its occupation of space, it would follow that the presence of any object, regardless of its nature, would violate the Fourth Amendment.We conclude that no Fourth Amendment interest of Karo or of any other respondent was infringed by the installation of the beeper. Rather, any impairment of their privacy interests that may have occurred was occasioned by the monitoring of the beeper.3 IIIIn United States v. Knotts, , law enforcement officials, with the consent of the seller, installed a beeper in a 5-gallon can of chloroform and monitored the beeper after delivery of the can to the buyer in Minneapolis, Minn. Although there was partial visual surveillance as the automobile containing the can moved along the public highways, the beeper enabled the officers to locate the can in the area of a cabin near Shell Lake, Wis., and it was this information that provided the basis for the issuance of a search warrant. As the case came to us, the installation of the beeper was not challenged; only the monitoring was at issue. The Court held that since the movements of the automobile and the arrival of the can containing the beeper in the area of the cabin could have been observed by the naked eye, no Fourth Amendment violation was committed by monitoring the beeper during the trip to the cabin. In Knotts, the record did not show that the beeper was monitored while the can containing it was inside the cabin, and we therefore had no occasion to consider whether a constitutional violation would have occurred had the fact been otherwise.Here, there is no gainsaying that the beeper was used to locate the ether in a specific house in Taos, N. M., and that that information was in turn used to secure a warrant for the search of the house. The affidavit supporting the application for a search warrant recited that the ether arrived at the residence in a motor vehicle that later departed and that:"For fear of detection, we did not maintain tight surveillance of the residence... . Using the `beeper' locator, I positively determined that the `beeper' can (5-gallon can of ether, described earlier in this affidavit) was now inside the above-described premises to be searched because the `beeper' locator (direction finder) pinpointed the beeper signal as emanating from the above-described premises... . Again, later on Saturday (now in the daytime), 7 February 1981, my `beeper' locator still shows a strong `beeper' signal emanating from inside the above-described residence." App. 57-58. This case thus presents the question whether the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. Contrary to the submission of the United States, we think that it does.At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. Our cases have not deviated from this basic Fourth Amendment principle. Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances. Welsh v. Wisconsin, ; Steagald v. United States, ; Payton v. New York, . In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search.The monitoring of an electronic device such as a beeper is, of course, less intrusive than a full-scale search, but it does reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant. The case is thus not like Knotts, for there the beeper told the authorities nothing about the interior of Knotts' cabin. The information obtained in Knotts was "voluntarily conveyed to anyone who wanted to look ...," 460 U.S., at 281; here, as we have said, the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified. We cannot accept the Government's contention that it should be completely free from the constraints of the Fourth Amendment to determine by means of an electronic device, without a warrant and without probable cause or reasonable suspicion, whether a particular article - or a person, for that matter - is in an individual's home at a particular time. Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight.4 We also reject the Government's contention that it should be able to monitor beepers in private residences without a warrant if there is the requisite justification in the facts for believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity. Warrantless searches are presumptively unreasonable, though the Court has recognized a few limited exceptions to this general rule. See, e. g., United States v. Ross, (automobiles); Schneckloth v. Bustamonte, (consent); Warden v. Hayden, (exigent circumstances). The Government's contention that warrantless beeper searches should be deemed reasonable is based upon its deprecation of the benefits and exaggeration of the difficulties associated with procurement of a warrant. The Government argues that the traditional justifications for the warrant requirement are inapplicable in beeper cases, but to a large extent that argument is based upon the contention, rejected above, that the beeper constitutes only a minuscule intrusion on protected privacy interests. The primary reason for the warrant requirement is to interpose a "neutral and detached magistrate" between the citizen and "the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, . Those suspected of drug offenses are no less entitled to that protection than those suspected of nondrug offenses. Requiring a warrant will have the salutary effect of ensuring that use of beepers is not abused, by imposing upon agents the requirement that they demonstrate in advance their justification for the desired search. This is not to say that there are no exceptions to the warrant rule, because if truly exigent circumstances exist no warrant is required under general Fourth Amendment principles.If agents are required to obtain warrants prior to monitoring a beeper when it has been withdrawn from public view, the Government argues, for all practical purposes they will be forced to obtain warrants in every case in which they seek to use a beeper, because they have no way of knowing in advance whether the beeper will be transmitting its signals from inside private premises. The argument that a warrant requirement would oblige the Government to obtain warrants in a large number of cases is hardly a compelling argument against the requirement. It is worthy of note that, in any event, this is not a particularly attractive case in which to argue that it is impractical to obtain a warrant, since a warrant was in fact obtained in this case, seemingly on probable cause.We are also unpersuaded by the argument that a warrant should not be required because of the difficulty in satisfying the particularity requirement of the Fourth Amendment. The Government contends that it would be impossible to describe the "place" to be searched, because the location of the place is precisely what is sought to be discovered through the search. Brief for United States 42. However true that may be, it will still be possible to describe the object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which beeper surveillance is requested. In our view, this information will suffice to permit issuance of a warrant authorizing beeper installation and surveillance.In sum, we discern no reason for deviating from the general rule that a search of a house should be conducted pursuant to a warrant.5 IVAs we have said, by maintaining the beeper the agents verified that the ether was actually located in the Taos house and that it remained there while the warrant was sought. This information was obtained without a warrant and would therefore be inadmissible at trial against those with privacy interests in the house - Horton, Harley, Steele, and Roth. That information, which was included in the warrant affidavit, would also invalidate the warrant for the search of the house if it proved to be critical to establishing probable cause for the issuance of the warrant. However, if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause, the warrant was nevertheless valid. Franks v. Delaware, .It requires only a casual examination of the warrant affidavit, which in relevant respects consists of undisputed factual assertions, to conclude that the officers could have secured the warrant without relying on the beeper to locate the ether in the house sought to be searched. The affidavit recounted the months-long tracking of the evidence, including the visual and beeper surveillance of Horton's pickup on its trip from Albuquerque to the immediate vicinity of the Taos residence; its departure a short time later without the ether; its later return to the residence; and the visual observation of the residence with its windows open on a cold night.That leaves the question whether any part of this additional information contained in the warrant affidavit was itself the fruit of a Fourth Amendment violation to which any of the occupants of the house could object. As far as the present record reveals, two of the four respondents who had standing to object to the search of the residence - Steele and Roth - had no interest in any of the arguably private places in which the beeper was monitored prior to its arrival in Taos. The evidence seized in the house would be admissible against them.The question as to Horton and Harley is somewhat more complicated. On the initial leg of its journey, the ether came to rest in Karo's house where it was monitored; it then moved in succession to two other houses, including Horton's, before it was moved first to a locker in one public warehouse and then to a locker in another. Both lockers were rented jointly by Horton and Harley. On September 6, the ether was removed from the second storage facility and transported to Taos.Assuming for present purposes that prior to its arrival at the second warehouse the beeper was illegally used to locate the ether in a house or other place in which Horton or Harley had a justifiable claim to privacy, we are confident that such use of the beeper does not taint its later use in locating the ether and tracking it to Taos. The movement of the ether from the first warehouse was undetected, but by monitoring the beeper the agents discovered that it had been moved to the second storage facility. No prior monitoring of the beeper contributed to this discovery; using the beeper for this purpose was thus untainted by any possible prior illegality. Furthermore, the beeper informed the agents only that the ether was somewhere in the warehouse; it did not identify the specific locker in which the ether was located. Monitoring the beeper revealed nothing about the contents of the locker that Horton and Harley had rented and hence was not a search of that locker.6 The locker was identified only when agents traversing the public parts of the facility found that the smell of ether was coming from a specific locker.The agents set up visual surveillance of that locker, and on September 6, they observed Rhodes and a female remove the ether and load it into Horton's pickup truck. The truck moved over the public streets and was tracked by beeper to Rhodes' house, where it was temporarily parked. At about 6 p. m. the truck was observed departing and was tracked visually and by beeper to the vicinity of the house in Taos. Because locating the ether in the warehouse was not an illegal search - and because the ether was seen being loaded into Horton's truck, which then traveled the public highways - it is evident that under Knotts there was no violation of the Fourth Amendment as to anyone with or without standing to complain about monitoring the beeper while it was located in Horton's truck. Under these circumstances, it is clear that the warrant affidavit, after striking the facts about monitoring the beeper while it was in the Taos residence, contained sufficient untainted information to furnish probable cause for the issuance of the search warrant. The evidence seized in the house should not have been suppressed with respect to any of the respondents.7 The judgment of the Court of Appeals is accordingly Reversed. |
1 | Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (Act), provides, inter alia, that no "otherwise qualified handicapped individual," as defined in 29 U.S.C. 706(7), shall, solely by reason of his handicap, be excluded from participation in any program receiving federal financial assistance. Section 706(7)(B) defines "handicapped individual" to mean any person who "(i) has a physical ... impairment which substantially limits one or more of [his] major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." Department of Health and Human Services (HHS) regulations define "physical impairment" to mean, inter alia, any physiological disorder affecting the respiratory system, and define "major life activities" to include working. Respondent was hospitalized for tuberculosis in 1957. The disease went into remission for the next 20 years, during which time respondent began teaching elementary school in Florida. In 1977, March 1978, and November 1978, respondent had relapses, after the latter two of which she was suspended with pay for the rest of the school year. At the end of the 1978-1979 school year, petitioners discharged her after a hearing because of the continued recurrence of tuberculosis. After she was denied relief in state administrative proceedings, she brought suit in Federal District Court, alleging a violation of 504. The District Court held that she was not a "handicapped person" under the Act, but that, even assuming she were, she was not "qualified" to teach elementary school. The Court of Appeals reversed, holding that persons with contagious diseases are within 504's coverage, and remanded for further findings as to whether respondent was "otherwise qualified" for her job.Held: 1. A person afflicted with the contagious disease of tuberculosis may be a "handicapped individual" within the meaning of 504. Pp. 280-286. (a) Respondent is a "handicapped individual" as defined in 706 (7)(B) and the HHS regulations. Her hospitalization in 1957 for a disease that affected her respiratory system and that substantially limited "one or more of [her] major life activities" establishes that she has a "record of ... impairment." Pp. 280-281. (b) The fact that a person with a record of impairment is also contagious does not remove that person from 504's coverage. To allow an employer to justify discrimination by distinguishing between a disease's contagious effects on others and its physical effects on a patient would be unfair, would be contrary to 706(7)(B)(iii) and the legislative history, which demonstrate Congress' concern about an impairment's effect on others, and would be inconsistent with 504's basic purpose to ensure that handicapped individuals are not denied jobs because of the prejudice or ignorance of others. The Act replaces such fearful, reflexive reactions with actions based on reasoned and medically sound judgments as to whether contagious handicapped persons are "otherwise qualified" to do the job. Pp. 281-286. 2. In most cases, in order to determine whether a person handicapped by contagious disease is "otherwise qualified" under 504, the district court must conduct an individualized inquiry and make appropriate findings of fact, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (e. g., how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties), and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm. In making these findings, courts normally should defer to the reasonable medical judgments of public health officials. Courts must then determine, in light of these findings, whether any "reasonable accommodation" can be made by the employer under the established standards for that inquiry. Pp. 287-288. 3. Because the District Court did not make appropriate findings, it is impossible for this Court to determine whether respondent is "otherwise qualified" for the job of elementary school teacher, and the case is remanded for additional findings of fact. Pp. 288-289. 772 F.2d 759, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 289.Brian T. Hayes argued the cause for petitioners. With him on the briefs was John D. Carlson.Solicitor General Fried argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Carvin, Richard J. Lazarus, and Mark L. Gross.George K. Rahdert argued the cause for respondent. With him on the brief was Steven H. Malone.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby; and for Congressman William E. Dannemeyer et al. by William E. Dannemeyer, pro se.Briefs of amici curiae urging affirmance were filed for the Association for Retarded Citizens of the United States et al. by Thomas K. Gilhool, Michael Churchill, Frank J. Laski, Timothy M. Cook, Stanley S. Herr, and Donald S. Goldman; and for the Employment Law Center et al. by Robert E. Borton.Briefs of amici curiae were filed for the State of California et al. by John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, and Marian M. Johnston and M. Anne Jennings, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, W. Cary Edwards of New Jersey, Robert Abrams of New York, and Bronson C. La Follette of Wisconsin; for the American Medical Association by Benjamin W. Heineman, Jr., and Carter G. Phillips; for the American Public Health Association et al. by Nan D. Hunter and Herbert Semmel; for Doctors for AIDS Research and Education by Stanley Fleishman, Joseph Lawrence, Susan D. McGreivy, and Paul Hoffman; for the Epilepsy Foundation of America by Alexandra K. Finucane; for the National School Boards Association by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon; and for Senator Cranston et al. by Arlene Mayerson.JUSTICE BRENNAN delivered the opinion of the Court.Section 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. 794 (Act), prohibits a federally funded state program from discriminating against a handicapped individual solely by reason of his or her handicap. This case presents the questions whether a person afflicted with tuberculosis, a contagious disease, may be considered a "handicapped individual" within the meaning of 504 of the Act, and, if so, whether such an individual is "otherwise qualified" to teach elementary school. From 1966 until 1979, respondent Gene Arline taught elementary school in Nassau County, Florida. She was discharged in 1979 after suffering a third relapse of tuberculosis within two years. After she was denied relief in state administrative proceedings, she brought suit in federal court, alleging that the school board's decision to dismiss her because of her tuberculosis violated 504 of the Act.1 A trial was held in the District Court, at which the principal medical evidence was provided by Marianne McEuen, M. D., an assistant director of the Community Tuberculosis Control Service of the Florida Department of Health and Rehabilitative Services. According to the medical records reviewed by Dr. McEuen, Arline was hospitalized for tuberculosis in 1957. App. 11-12. For the next 20 years, Arline's disease was in remission. Id., at 32. Then, in 1977, a culture revealed that tuberculosis was again active in her system; cultures taken in March 1978 and in November 1978 were also positive. Id., at 12.The superintendent of schools for Nassau County, Craig Marsh, then testified as to the school board's response to Arline's medical reports. After both her second relapse, in the spring of 1978, and her third relapse in November 1978, the school board suspended Arline with pay for the remainder of the school year. Id., at 49-51. At the end of the 1978-1979 school year, the school board held a hearing, after which it discharged Arline, "not because she had done anything wrong," but because of the "continued reoccurence [sic] of tuberculosis." Id., at 49-52.In her trial memorandum, Arline argued that it was "not disputed that the [school board dismissed her] solely on the basis of her illness. Since the illness in this case qualifies the Plaintiff as a `handicapped person' it is clear that she was dismissed solely as a result of her handicap in violation of Section 504." Record 119. The District Court held, however, that although there was "[n]o question that she suffers a handicap," Arline was nevertheless not "a handicapped person under the terms of that statute." App. to Pet. for Cert. C-2. The court found it "difficult ... to conceive that Congress intended contagious diseases to be included within the definition of a handicapped person." The court then went on to state that, "even assuming" that a person with a contagious disease could be deemed a handicapped person, Arline was not "qualified" to teach elementary school. Id., at C-2 - C-3.The Court of Appeals reversed, holding that "persons with contagious diseases are within the coverage of section 504," and that Arline's condition "falls ... neatly within the statutory and regulatory framework" of the Act. 772 F.2d 759, 764 (CA11 1985). The court remanded the case "for further findings as to whether the risks of infection precluded Mrs. Arline from being `otherwise qualified' for her job and, if so, whether it was possible to make some reasonable accommodation for her in that teaching position" or in some other position. Id., at 765 (footnote omitted). We granted certiorari, , and now affirm.IIIn enacting and amending the Act, Congress enlisted all programs receiving federal funds in an effort "to share with handicapped Americans the opportunities for an education, transportation, housing, health care, and jobs that other Americans take for granted." 123 Cong. Rec. 13515 (1977) (statement of Sen. Humphrey). To that end, Congress not only increased federal support for vocational rehabilitation, but also addressed the broader problem of discrimination against the handicapped by including 504, an antidiscrimination provision patterned after Title VI of the Civil Rights Act of 1964.2 Section 504 of the Rehabilitation Act reads in pertinent part: "No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ... ." 29 U.S.C. 794. In 1974 Congress expanded the definition of "handicapped individual" for use in 504 to read as follows:3 "[A]ny person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. 706(7)(B). The amended definition reflected Congress' concern with protecting the handicapped against discrimination stemming not only from simple prejudice, but also from "archaic attitudes and laws" and from "the fact that the American people are simply unfamiliar with and insensitive to the difficulties confront[ing] individuals with handicaps." S. Rep. No. 93-1297, p. 50 (1974). To combat the effects of erroneous but nevertheless prevalent perceptions about the handicapped, Congress expanded the definition of "handicapped individual" so as to preclude discrimination against "[a] person who has a record of, or is regarded as having, an impairment. [but who] may at present have no actual incapacity at all." Southeastern Community College v. Davis, , n. 6 (1979).4 In determining whether a particular individual is handicapped as defined by the Act, the regulations promulgated by the Department of Health and Human Services are of significant assistance. As we have previously recognized, these regulations were drafted with the oversight and approval of Congress, see Consolidated Rail Corporation v. Darrone, , and nn. 14-16 (1984); they provide "an important source of guidance on the meaning of 504." Alexander v. Choate, , n. 24 (1985). The regulations are particularly significant here because they define two critical terms used in the statutory definition of handicapped individual.5 "Physical impairment" is defined as follows:"[A]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitourinary; hemic and lymphatic; skin; and endocrine." 45 CFR 84.3(j)(2)(i) (1985). In addition, the regulations define "major life activities" as"functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 84.3(j)(2)(ii).IIIWithin this statutory and regulatory framework, then, we must consider whether Arline can be considered a handicapped individual. According to the testimony of Dr. McEuen, Arline suffered tuberculosis "in an acute form in such a degree that it affected her respiratory system," and was hospitalized for this condition. App. 11. Arline thus had a physical impairment as that term is defined by the regulations, since she had a "physiological disorder or condition ... affecting [her] ... respiratory [system]." 45 CFR 84.3(j)(2)(i) (1985). This impairment was serious enough to require hospitalization, a fact more than sufficient to establish that one or more of her major life activities were substantially limited by her impairment. Thus, Arline's hospitalization for tuberculosis in 1957 suffices to establish that she has a "record of ... impairment" within the meaning of 29 U.S.C. 706(7)(B)(ii), and is therefore a handicapped individual.Petitioners concede that a contagious disease may constitute a handicapping condition to the extent that it leaves a person with "diminished physical or mental capabilities," Brief for Petitioners 15, and concede that Arline's hospitalization for tuberculosis in 1957 demonstrates that she has a record of a physical impairment, see Tr. of Oral Arg. 52-53. Petitioners maintain, however, that Arline's record of impairment is irrelevant in this case, since the school board dismissed Arline not because of her diminished physical capabilities, but because of the threat that her relapses of tuberculosis posed to the health of others.6 We do not agree with petitioners that, in defining a handicapped individual under 504, the contagious effects of a disease can be meaningfully distinguished from the disease's physical effects on a claimant in a case such as this. Arline's contagiousness and her physical impairment each resulted from the same underlying condition, tuberculosis. It would be unfair to allow an employer to seize upon the distinction between the effects of a disease on others and the effects of a disease on a patient and use that distinction to justify discriminatory treatment.7 Nothing in the legislative history of 504 suggests that Congress intended such a result. That history demonstrates that Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual. Congress extended coverage, in 29 U.S.C. 706(7) (B)(iii), to those individuals who are simply "regarded as having" a physical or mental impairment.8 The Senate Report provides as an example of a person who would be covered under this subsection "a person with some kind of visible physical impairment which in fact does not substantially limit that person's functioning." S. Rep. No. 93-1297, at 64.9 Such an impairment might not diminish a person's physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment.10 Allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of 504, which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or the ignorance of others. By amending the definition of "handicapped individual" to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.11 Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness.12 Even those who suffer or have recovered from such noninfectious diseases as epilepsy or cancer have faced discrimination based on the irrational fear that they might be contagious.13 The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments: the definition of "handicapped individual" is broad, but only those individuals who are both handicapped and otherwise qualified are eligible for relief. The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence and a determination made as to whether they were "otherwise qualified." Rather, they would be vulnerable to discrimination on the basis of mythology - precisely the type of injury Congress sought to prevent.14 We conclude that the fact that a person with a record of a physical impairment is also contagious does not suffice to remove that person from coverage under 504.15 IVThe remaining question is whether Arline is otherwise qualified for the job of elementary schoolteacher. To answer this question in most cases, the district court will need to conduct an individualized inquiry and make appropriate findings of fact. Such an inquiry is essential if 504 is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks.16 The basic factors to be considered in conducting this inquiry are well established.17 In the context of the employment of a person handicapped with a contagious disease, we agree with amicus American Medical Association that this inquiry should include"[findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm." Brief for American Medical Association as Amicus Curiae 19. In making these findings, courts normally should defer to the reasonable medical judgments of public health officials.18 The next step in the "otherwise-qualified" inquiry is for the court to evaluate, in light of these medical findings, whether the employer could reasonably accommodate the employee under the established standards for that inquiry. See n. 17, supra.Because of the paucity of factual findings by the District Court, we, like the Court of Appeals, are unable at this stage of the proceedings to resolve whether Arline is "otherwise qualified" for her job. The District Court made no findings as to the duration and severity of Arline's condition, nor as to the probability that she would transmit the disease. Nor did the court determine whether Arline was contagious at the time she was discharged, or whether the School Board could have reasonably accommodated her.19 Accordingly, the resolution of whether Arline was otherwise qualified requires further findings of fact.VWe hold that a person suffering from the contagious disease of tuberculosis can be a handicapped person within the meaning of 504 of the Rehabilitation Act of 1973, and that respondent Arline is such a person. We remand the case to the District Court to determine whether Arline is otherwise qualified for her position. The judgment of the Court of Appeals is Affirmed. |
0 | Based on evidence that respondent Bouknight had abused petitioner Maurice M., her infant son, petitioner Baltimore City Department of Social Services (BCDSS) secured a juvenile court order removing Maurice from Bouknight's control. That order was subsequently modified to return custody to Bouknight pursuant to extensive conditions and subject to further court order. After Bouknight violated the order's conditions, the court granted BCDSS' petition to remove Maurice from her control and held her in civil contempt when she failed to produce the child as ordered. Rejecting her subsequent claim that the contempt order violated the Fifth Amendment's guarantee against self-incrimination, the court stated that the contempt would be purged by the production of Maurice and was issued not because Bouknight refused to testify but because she failed to obey the production order. In vacating the juvenile court's judgment upholding the contempt order, the State Court of Appeals found that that order unconstitutionally compelled Bouknight to admit through the act of production a measure of continuing control over Maurice in circumstances in which she had a reasonable apprehension that she would be prosecuted.Held: A mother who is the custodian of her child pursuant to a court order may not invoke the Fifth Amendment privilege against self-incrimination to resist a subsequent court order to produce the child. Pp. 554-562. (a) Although the privilege applies only when an accused is compelled to make an incriminating testimonial communication, the fact that Bouknight could comply with the order through the unadorned act of producing Maurice does not necessarily deprive her of the privilege, because the act of complying may testify to the existence, possession, or authenticity of the thing produced. See, e. g., United States v. Doe, . Pp. 554-555. (b) Even assuming that the act of production would amount to a communication regarding Bouknight's control over, and possession of, Maurice that is sufficiently incriminating and testimonial in character, she may not invoke the privilege to resist the production order in the present circumstances. The ability to invoke the privilege is greatly diminished when invocation would interfere with the effective operation of a generally applicable regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws, see, e. g., California v. Byers, , and when a person assumes control over items that are the legitimate object of the government's noncriminal regulatory powers, cf. Shapiro v. United States, . Here, Maurice's care and safety became the particular object of the State's regulatory interest once the juvenile court adjudicated him a child in need of assistance. Moreover, by taking responsibility for such care subject to the custodial order's conditions, Bouknight submitted to the regulatory system's routine operation, agreed to hold Maurice in a manner consonant with the State's interests, and accepted the incident obligation to permit inspection. Furthermore, the State imposes that obligation as part of a broadly directly, noncriminal regulatory regime governing children cared for pursuant to custodial orders. Persons who care for such children are not a selective group inherently suspect of criminal activities. Similarly, the efforts of BCDSS and the judiciary to gain access to the children focus primarily on the children's well-being rather than on criminal conduct, and are enforced through measures unrelated to criminal law enforcement. Finally, production in the vast majority of cases will embody no incriminating testimony. Pp. 555-561. (c) The custodial role that limits Bouknight's ability to resist the production order may give rise to corresponding limitations upon the State's ability to use the testimonial aspects of her act of production directly or indirectly in any subsequent criminal proceedings. See, e. g., Braswell v. United States, , and n. 11. Pp. 561-562. 314 Md. 391, 550 A. 2d 1135, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 563.[Footnote *] Together with No. 88-6651, Maurice M. v. Bouknight, also on certiorari to the same court.Ralph S. Tyler III argued the cause for petitioner in No. 88-1182. With him on the briefs were J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida and Carmen M. Shepard, Assistant Attorneys General. Mitchell Y. Mirviss argued the cause for petitioner in No. 88-6651. With him on the briefs were Susan Dishler Shubin, Stuart R. Cohen, Kathi Grasso, and M. Gayle Hafner. George E. Burns, Jr., argued the cause for respondent. With him on the brief were Jose F. Anderson, George M. Lipman, Gary S. Offutt, Robin Parsons, and M. Christina Gutierrez.Fn Fn Briefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by James M. Shannon, Attorney General of Massachusetts, Judy G. Zeprun, Judith Fabricant, and Countess C. Williams, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Douglas B. Baily of Alaska, Robert A. Corbin of Arizona, John K. Van de Kamp of California, John J. Kelly of Connecticut, Charles M. Oberly III of Delaware, Neil F. Hartigan of Illinois, Gordon Allen of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Brian McKay of Nevada, Jeffrey Howard of New Hampshire, Peter N. Perretti, Jr., of New Jersey, Hal Stratton of New Mexico, Nicholas Spaeth of North Dakota, Dave Frohnmayer of Oregon, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Charlie Brown of West Virginia, and Joseph B. Meyer of Wyoming; for Advocates for Children and Youth Inc. by Cheri Wyron Levin; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Juvenile Protective Association by Thomas H. Morsch; and for the U.S. Conference of Mayors et al. by Benna Ruth Solomon, Melvin Spaeth, and Donald O. Beers.William L. Grimm filed a brief for Charles M. as amicus curiae.JUSTICE O'CONNOR delivered the opinion of the Court.In this action, we must decide whether a mother, the custodian of a child pursuant to a court order, may invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child. We hold that she may not.IPetitioner Maurice M. is an abused child. When he was three months old, he was hospitalized with a fractured left femur, and examination revealed several partially healed bone fractures and other indications of severe physical abuse. In the hospital, respondent Bouknight, Maurice's mother, was observed shaking Maurice, dropping him in his crib despite his spica cast, and otherwise handling him in a manner inconsistent with his recovery and continued health. Hospital personnel notified the Baltimore City Department of Social Services (BCDSS), petitioner in No. 88-1182, of suspected child abuse. In February 1987, BCDSS secured a court order removing Maurice from Bouknight's control and placing him in shelter care. Several months later, the shelter care order was inexplicably modified to return Maurice to Bouknight's custody temporarily. Following a hearing held shortly thereafter, the juvenile court declared Maurice to be a "child in need of assistance," thus asserting jurisdiction over Maurice and placing him under BCDSS' continuing oversight. BCDSS agreed that Bouknight could continue as custodian of the child, but only pursuant to extensive conditions set forth in a court-approved protective supervision order. The order required Bouknight to "cooperate with BCDSS," "continue in therapy," participate in parental aid and training programs, and "refrain from physically punishing [Maurice]." App. to Pet. for Cert. 86a. The order's terms were "all subject to the further Order of the Court." Id., at 87a. Bouknight's attorney signed the order, and Bouknight in a separate form set forth her agreement to each term.Eight months later, fearing for Maurice's safety, BCDSS returned to juvenile court. BCDSS caseworkers related that Bouknight would not cooperate with them and had in nearly every respect violated the terms of the protective order. BCDSS stated that Maurice's father had recently died in a shooting incident and that Bouknight, in light of the results of a psychological examination and her history of drug use, could not provide adequate care for the child. App. 33-34. On April 20, 1988, the court granted BCDSS' petition to remove Maurice from Bouknight's control for placement in foster care. BCDSS officials also petitioned for judicial relief from Bouknight's failure to produce Maurice or reveal where he could be found. Id., at 36-39. The petition recounted that on two recent visits by BCDSS officials to Bouknight's home, she had refused to reveal the location of the child or had indicated that the child was with an aunt whom she would not identify. The petition further asserted that inquiries of Bouknight's known relatives had revealed that none of them had recently seen Maurice and that BCDSS had prompted the police to issue a missing persons report and referred the case for investigation by the police homicide division. Also on April 20, the juvenile court, upon a hearing on the petition, cited Bouknight for violating the protective custody order and for failing to appear at the hearing. Bouknight had indicated to her attorney that she would appear with the child, but also expressed fear that if she appeared the State would "`snatch the child.'" Id., at 42, 54. The court issued an order to show cause why Bouknight should not be held in civil contempt for failure to produce the child. Expressing concern that Maurice was endangered or perhaps dead, the court issued a bench warrant for Bouknight's appearance. Id., at 51-57.Maurice was not produced at subsequent hearings. At a hearing one week later, Bouknight claimed that Maurice was with a relative in Dallas. Investigation revealed that the relative had not seen Maurice. The next day, following another hearing at which Bouknight again declined to produce Maurice, the juvenile court found Bouknight in contempt for failure to produce the child as ordered. There was and has been no indication that she was unable to comply with the order. The court directed that Bouknight be imprisoned until she "purge[d] herself of contempt by either producing [Maurice] before the court or revealing to the court his exact whereabouts." App. to Pet. for Cert. 82a.The juvenile court rejected Bouknight's subsequent claim that the contempt order violated the Fifth Amendment's guarantee against self-incrimination. The court stated that the production of Maurice would purge the contempt and that "[t]he contempt is issued not because she refuse[d] to testify in any proceeding ... [but] because she has failed to abide by the Order of this Court, mainly [for] the production of Maurice M." App. 150. While that decision was being appealed, Bouknight was convicted of theft and sentenced to 18 months' imprisonment in separate proceedings. The Court of Appeals of Maryland vacated the juvenile court's judgment upholding the contempt order. In re Maurice M., 314 Md. 391, 550 A. 2d 1135 (1988). The Court of Appeals found that the contempt order unconstitutionally compelled Bouknight to admit through the act of production "a measure of continuing control and dominion over Maurice's person" in circumstances in which "Bouknight has a reasonable apprehension that she will be prosecuted." Id., at 403-404, 550 A. 2d, at 1141. CHIEF JUSTICE REHNQUIST granted BCDSS' application for a stay of the judgment and mandate of the Maryland Court of Appeals, pending disposition of the petition for a writ of certiorari. (in chambers). We granted certiorari, , and we now reverse.IIThe Fifth Amendment provides that "No person ... shall be compelled in any criminal case to be a witness against himself." The Fifth Amendment's protection "applies only when the accused is compelled to make a testimonial communication that is incriminating." Fisher v. United States, ; see Doe v. United States, , 209-210, n. 8 (1988) (Doe II); Schmerber v. California, ("[T]he privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature"). The juvenile court concluded that Bouknight could comply with the order through the unadorned act of producing the child, and we thus address that aspect of the order. When the government demands that an item be produced, "the only thing compelled is the act of producing the [item]." Fisher, supra, at 410, n. 11; see United States v. Doe, (Doe I). The Fifth Amendment's protection may nonetheless be implicated because the act of complying with the government's demand testifies to the existence, possession, or authenticity of the things produced. See Doe II, supra, at 209; Doe I, supra, at 612-614, and n. 13; Fisher, supra, at 410-413. But a person may not claim the Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded. Doe I, 465 U.S., at 612, and n. 10; id., at 618 (O'CONNOR, J., concurring); Fisher, supra, at 408-410. Bouknight therefore cannot claim the privilege based upon anything that examination of Maurice might reveal, nor can she assert the privilege upon the theory that compliance would assert that the child produced is in fact Maurice (a fact the State could readily establish, rendering any testimony regarding existence or authenticity insufficiently incriminating, see Fisher, supra, at 411). Rather, Bouknight claims the benefit of the privilege because the act of production would amount to testimony regarding her control over, and possession of, Maurice. Although the State could readily introduce evidence of Bouknight's continuing control over the child - e. g., the custody order, testimony of relatives, and Bouknight's own statements to Maryland officials before invoking the privilege - her implicit communication of control over Maurice at the moment of production might aid the State in prosecuting Bouknight.The possibility that a production order will compel testimonial assertions that may prove incriminating does not, in all contexts, justify invoking the privilege to resist production. See infra, at 556-558. Even assuming that this limited testimonial assertion is sufficiently incriminating and "sufficiently testimonial for purposes of the privilege," Fisher, supra, at 411, Bouknight may not invoke the privilege to resist the production order because she has assumed custodial duties related to production and because production is required as part of a noncriminal regulatory regime.The Court has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws. In Shapiro v. United States, , the Court considered an application of the Emergency Price Control Act of 1942 and a regulation issued thereunder which required licensed businesses to maintain records and make them available for inspection by administrators. The Court indicated that no Fifth Amendment protection attached to production of the "required records," which the "`defendant was required to keep, not for his private uses, but for the benefit of the public, and for public inspection.'" Id., at 17-18 (quoting Wilson v. United States, ). The Court's discussion of the constitutional implications of the scheme focused upon the relation between the Government's regulatory objectives and the Government's interest in gaining access to the records in Shapiro's possession: "It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator." 335 U.S., at 32. See also In re Harris, (Holmes, J.) (regarding a court order that a bankrupt produce account books, "[t]he question is not of testimony but of surrender - not of compelling the bankrupt to be a witness against himself in a criminal case, past or future, but of compelling him to yield possession of property that he no longer is entitled to keep"). The Court has since refined those limits to the government's authority to gain access to items or information vested with this public character. The Court has noted that "the requirements at issue in Shapiro were imposed in `an essentially non-criminal and regulatory area of inquiry,'" and that Shapiro's reach is limited where requirements "are directed to a `selective group inherently suspect of criminal activities.'" Marchetti v. United States, (quoting Albertson v. Subversive Activities Control Board, ); see Grosso v. United States, (Shapiro inapplicable because "[h]ere, as in Marchetti, the statutory obligations are directed almost exclusively to individuals inherently suspect of criminal activities"); Haynes v. United States, .California v. Byers, , confirms that the ability to invoke the privilege may be greatly diminished when invocation would interfere with the effective operation of a generally applicable, civil regulatory requirement. In Byers, the Court upheld enforcement of California's statutory requirement that drivers of cars involved in accidents stop and provide their names and addresses. A plurality found the risk of incrimination too insubstantial to implicate the Fifth Amendment, id., at 427-428, and noted that the statute "was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities," id., at 430, was "`directed at the public at large,'" ibid. (quoting Albertson v. Subversive Activities Control Board, supra, at 79), and required disclosure of no inherently illegal activity. See also United States v. Sullivan, (rejecting Fifth Amendment objection to requirement to file income tax return). Justice Harlan, the author of Marchetti, Grosso, and Haynes, concurred in the judgment. He distinguished those three cases as considering statutory schemes that "focused almost exclusively on conduct which was criminal," 402 U.S., at 454. While acknowledging that in particular cases the California statute would compel incriminating testimony, he concluded that the noncriminal purpose and the general applicability of the reporting requirement demanded compliance even in such cases. Id., at 458.When a person assumes control over items that are the legitimate object of the government's noncriminal regulatory powers, the ability to invoke the privilege is reduced. In Wilson v. United States, supra, the Court surveyed a range of cases involving the custody of public documents and records required by law to be kept because they related to "the appropriate subjects of governmental regulation and the enforcement of restrictions validly established." Id., at 380. The principle the Court drew from these cases is:"[W]here, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody he has accepted the incident obligation to permit inspection." Id., at 382. See also Braswell v. United States, ; Curcio v. United States, ("A custodian, by assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State's visitorial powers"). In Shapiro, the Court interpreted this principle as extending well beyond the corporate context, 335 U.S., at 16-20, and emphasized that Shapiro had assumed and retained control over documents in which the Government had a direct and particular regulatory interest. Id., at 7-8, 14-15. Indeed, it was in part Shapiro's custody over items having this public nature that allowed the Court in Marchetti, supra, at 57, Grosso, supra, at 69, and Haynes, supra, at 99, to distinguish the measures considered in those cases from the regulatory requirement at issue in Shapiro.These principles readily apply to this case. Once Maurice was adjudicated a child in need of assistance, his care and safety became the particular object of the State's regulatory interests. See 314 Md., at 404, 550 A. 2d, at 1141; Md. Cts. & Jud. Proc. Code Ann. 3-801(e), 3-804(a) (Supp. 1989); see also App. 105 ("This court has jurisdiction to require at all times to know the whereabouts of the minor child. We asserted jurisdiction over that child in the spring of 1987 ..."). Maryland first placed Maurice in shelter care, authorized placement in foster care, and then entrusted responsibility for Maurice's care to Bouknight. By accepting care of Maurice subject to the custodial order's conditions (including requirements that she cooperate with BCDSS, follow a prescribed training regime, and be subject to further court orders), Bouknight submitted to the routine operation of the regulatory system and agreed to hold Maurice in a manner consonant with the State's regulatory interests and subject to inspection by BCDSS. Cf. Shapiro v. United States, supra. In assuming the obligations attending custody, Bouknight "has accepted the incident obligation to permit inspection." Wilson, 221 U.S., at 382. The State imposes and enforces that obligation as part of a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders. See Md. Cts. & Jud. Proc. Code Ann. 3-802(a) (1984) (setting forth child protective purposes of subtitle, including "provid[ing] for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle"); see also Md. Cts. & Jud. Proc. Code Ann. 3-820(b), (c) (Supp. 1989); In re Jessica M., 312 Md. 93, 538 A. 2d 305 (1988).Persons who care for children pursuant to a custody order, and who may be subject to a request for access to the child, are hardly a "`selective group inherently suspect of criminal activities.'" Marchetti, supra, at 57 (quoting Albertson v. Subversive Activities Control Board, 382 U.S., at 79). The juvenile court may place a child within its jurisdiction with social service officials or "under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate." Md. Cts. & Jud. Proc. Code Ann. 3-820(c)(1)(i) (Supp. 1989). Children may be placed, for example, in foster care, in homes of relatives, or in the care of state officials. See, e. g., In re Jessica M., supra; In re Arlene G., 301 Md. 355, 483 A. 2d 39 (1984); Maryland Dept. of Health and Mental Hygiene v. Prince George's County Dept. of Social Services, 47 Md. App. 436, 423 A. 2d 589 (1980). Even when the court allows a parent to retain control of a child within the court's jurisdiction, that parent is not one singled out for criminal conduct, but rather has been deemed to be, without the State's assistance, simply "unable or unwilling to give proper care and attention to the child and his problems." Md. Cts. & Jud. Proc. Code Ann. 3-801(e) (Supp. 1989); see In re Jertrude O., 56 Md. App. 83, 466 A. 2d 885 (1983), cert. denied, 298 Md. 309, 469 A. 2d 863 (1984). The provision that authorized the juvenile court's efforts to gain production of Maurice reflects this broad applicability. See Md. Cts. & Jud. Proc. Code Ann. 3-814(c) (1984) ("If a parent, guardian, or custodian fails to bring the child before the court when requested, the court may issue a writ of attachment directing that the child be taken into custody and brought before the court. The court may proceed against the parent, guardian, or custodian for contempt"). This provision "fairly may be said to be directed at ... parents, guardians, and custodians who accept placement of juveniles in custody." 314 Md., at 418, 550 A. 2d, at 1148 (McAuliffe, J., dissenting).Similarly, BCDSS' efforts to gain access to children, as well as judicial efforts to the same effect, do not "focu[s] almost exclusively on conduct which was criminal." Byers, 402 U.S., at 454 (Harlan, J., concurring in judgment). Many orders will arise in circumstances entirely devoid of criminal conduct. Even when criminal conduct may exist, the court may properly request production and return of the child, and enforce that request through exercise of the contempt power, for reasons related entirely to the child's wellbeing and through measures unrelated to criminal law enforcement or investigation. See Maryland Cts. & Jud. Proc. Code Ann. 3-814(c) (1984). This case provides an illustration: concern for the child's safety underlay the efforts to gain access to and then compel production of Maurice. See App. 33-39, 53-55, 150, 155-158; see also 314 Md., at 419, 550 A. 2d, at 1149 (McAuliffe, J., dissenting). Finally, production in the vast majority of cases will embody no incriminating testimony, even if in particular cases the act of production may incriminate the custodian through an assertion of possession or the existence, or the identity, of the child. Cf. Byers, 402 U.S., at 430-431; id., at 458 (Harlan, J., concurring in judgment). These orders to produce children cannot be characterized as efforts to gain some testimonial component of the act of production. The government demands production of the very public charge entrusted to a custodian, and makes the demand for compelling reasons unrelated to criminal law enforcement and as part of a broadly applied regulatory regime. In these circumstances, Bouknight cannot invoke the privilege to resist the order to produce Maurice.We are not called upon to define the precise limitations that may exist upon the State's ability to use the testimonial aspects of Bouknight's act of production in subsequent criminal proceedings. But we note that imposition of such limitations is not foreclosed. The same custodial role that limited the ability to resist the production order may give rise to corresponding limitations upon the direct and indirect use of that testimony. See Braswell, 487 U.S., at 118, and n. 11. The State's regulatory requirement in the usual case may neither compel incriminating testimony nor aid a criminal prosecution, but the Fifth Amendment protections are not thereby necessarily unavailable to the person who complies with the regulatory requirement after invoking the privilege and subsequently faces prosecution. See Marchetti, 390 U.S., at 58-59 (the "attractive and apparently practical" course of subsequent use restriction is not appropriate where a significant element of the regulatory requirement is to aid law enforcement); see also Leary v. United States, ; Haynes, 390 U.S., at 100; Grosso, 390 U.S., at 69; cf. Doe I, 465 U.S., at 617, n. 17 (scope of restriction). In a broad range of contexts, the Fifth Amendment limits prosecutors' ability to use testimony that has been compelled. See Simmons v. United States, (no subsequent admission of testimony provided in suppression hearing); Murphy v. Waterfront Comm'n of New York Harbor, , 79 (1964) (Fifth Amendment bars use, in criminal processes, in other jurisdictions of testimony compelled pursuant to a grant of use immunity in one jurisdiction); Maness v. Meyers, (WHITE, J., concurring in result); Adams v. Maryland, ("[A] witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute"); see also New Jersey v. Portash, ; Garrity v. New Jersey, . But cf. Doe I, supra, at 616-617 (construing federal use immunity statute, 18 U.S.C. 6001-6005); Pillsbury Co. v. Conboy, (declining to supplement previous grant of federal use immunity).IIIThe judgment of the Court of Appeals of Maryland is reversed, and the cases are remanded to that court for further proceedings not inconsistent with this opinion. So ordered. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.Although the Court assumes that respondent's act of producing her child would be testimonial and could be incriminating, ante, at 555, it nonetheless concludes that she cannot invoke her privilege against self-incrimination and refuse to reveal her son's current location. Neither of the reasons the Court articulates to support its refusal to permit respondent to invoke her constitutional privilege justifies its decision. I therefore dissent.IThe Court correctly assumes, ante, at 555, that Bouknight's production of her son to the Maryland court would be testimonial because it would amount to an admission of Bouknight's physical control over her son. See Fisher v. United States, (acts of production are testimonial if they contain implicit statement of fact). Accord, United States v. Doe, . The Court also assumes, ante, at 555, that Bouknight's act of production would be self-incriminating. I would not hesitate to hold explicitly that Bouknight's admission of possession or control presents a "'real and appreciable'" threat of self-incrimination. Marchetti v. United States, . Bouknight's ability to produce the child would conclusively establish her actual and present physical control over him, and thus might "prove a significant `link in a chain' of evidence tending to establish [her] guilt." Ibid. (footnote omitted).Indeed, the stakes for Bouknight are much greater than the Court suggests. Not only could she face criminal abuse and neglect charges for her alleged mistreatment of Maurice, but she could also be charged with causing his death. The State acknowledges that it suspects that Maurice is dead, and the police are investigating his case as a possible homicide. In these circumstances, the potentially incriminating aspects to Bouknight's act of production are undoubtedly significant.IINotwithstanding the real threat of self-incrimination, the Court holds that "Bouknight may not invoke the privilege to resist the production order because she has assumed custodial duties related to production and because production is required as part of a noncriminal regulatory regime." Ante, at 555-556. In characterizing Bouknight as Maurice's "custodian," and in describing the relevant Maryland juvenile statutes as part of a noncriminal regulatory regime, the Court relies on two distinct lines of Fifth Amendment precedent, neither of which applies to this litigation.AThe Court's first line of reasoning turns on its view that Bouknight has agreed to exercise on behalf of the State certain custodial obligations with respect to her son, obligations that the Court analogizes to those of a custodian of the records of a collective entity. See ante, at 558-559. This characterization is baffling, both because it is contrary to the facts of this case and because this Court has never relied on such a characterization to override the privilege against self-incrimination except in the context of a claim of privilege by an agent of a collective entity.1 Jacqueline Bouknight is Maurice's mother; she is not, and in fact could not be, his "custodian" whose rights and duties are determined solely by the Maryland juvenile protection law. See Md. Cts. & Jud. Proc. Code Ann. 3-801(j) (Supp. 1989) (defining "custodian" as "person or agency to whom legal custody of a child has been given by order of the court, other than the child's parent or legal guardian"). Although Bouknight surrendered physical custody of her child during the pendency of the proceedings to determine whether Maurice was a "child in need of assistance" (CINA) within the meaning of the Maryland Code, 3-801(e), Maurice's placement in shelter care was only temporary and did not extinguish her legal right to custody of her son. See 3-801(r). When the CINA proceedings were settled, Bouknight regained physical custody of Maurice and entered into an agreement with the Baltimore City Department of Social Services (BCDSS). In that agreement, which was approved by the juvenile court, Bouknight promised, among other things, to "cooperate with BCDSS," App. 28, but she retained legal custody of Maurice.A finding that a child is in need of assistance does not by itself divest a parent of legal or physical custody, nor does it transform such custody to something conferred by the State. See, e. g., In re Jertrude O., 56 Md. App. 83, 97-98, 466 A. 2d 885, 893 (1983) (proving a child is a CINA differs significantly from proving that the parent's rights to legal and physical custody should be terminated). Thus, the parent of a CINA continues to exercise custody because she is the child's parent, not because the State has delegated that responsibility to her. Although the State has obligations "[t]o provide for the care, protection, and wholesome mental and physical development of children" who are in need of assistance, Md. Cts. & Jud. Proc. Code Ann. 3-802(a)(1) (1984), these duties do not eliminate or override a parent's continuing legal obligations similarly to provide for her child.In light of the statutory structure governing a parent's relationship to a CINA, Bouknight is not acting as a custodian in the traditional sense of that word because she is not acting on behalf of the State. In reality, she continues to exercise her parental duties, constrained by an agreement between her and the State. That agreement, which includes a stipulation that Maurice was a CINA, allows the State, in certain circumstances, to intercede in Bouknight's relationship with her child. It does not, however, confer custodial rights and obligations on Bouknight in the same way corporate law creates the custodial status of a corporate agent.Moreover, the rationale for denying a corporate custodian Fifth Amendment protection for acts done in her representative capacity does not apply to this case. The rule for a custodian of corporate records rests on the well-established principle that a collective entity, unlike a natural person, has no Fifth Amendment privilege against self-incrimination. See Hale v. Henkel, (corporation has no privilege); United States v. White, (labor union has no privilege). Because an artificial entity can act only through its agents, a custodian of such an entity's documents may not invoke her personal privilege to resist producing documents that may incriminate the entity, even if the documents may also incriminate the custodian. Wilson v. United States, . As we explained in White:"[I]ndividuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations... . And the official records and documents of the organization that are held by them in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally." 322 U.S., at 699 (citations omitted; emphasis added). Jacqueline Bouknight is not the agent for an artificial entity that possesses no Fifth Amendment privilege. Her role as Maurice's parent is very different from the role of a corporate custodian who is merely the instrumentality through whom the corporation acts. I am unwilling to extend the collective entity doctrine into a context where it denies individuals, acting in their personal rather than representative capacities, their constitutional privilege against self-incrimination.BThe Court's decision rests as well on cases holding that "the ability to invoke the privilege may be greatly diminished when invocation would interfere with the effective operation of a generally applicable, civil regulatory requirement." Ante, at 557. The cases the Court cites have two common features: they concern civil regulatory systems not primarily intended to facilitate criminal investigations, and they target the general public. See California v. Byers, (determining that a "hit and run" statute that required a driver involved in an accident to stop and give certain information was primarily civil). In contrast, regulatory regimes that are directed at a "`selective group inherently suspect of criminal activities,'" Marchetti, 390 U.S., at 57 (quoting Albertson v. Subversive Activities Control Board, ), do not result in a similar diminution of the Fifth Amendment privilege. 1Applying the first feature to this case, the Court describes Maryland's juvenile protection scheme as "a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders." Ante, at 559. The Court concludes that Bouknight cannot resist an order necessary for the functioning of that system. The Court's characterization of Maryland's system is dubious and highlights the flaws inherent in the Court's formulation of the appropriate Fifth Amendment inquiry. Virtually any civil regulatory scheme could be characterized as essentially noncriminal by looking narrowly or, as in this case, solely to the avowed noncriminal purpose of the regulations. If one focuses instead on the practical effects, the same scheme could be seen as facilitating criminal investigations. The fact that the Court holds Maryland's juvenile statute to be essentially noncriminal, notwithstanding the overlapping purposes underlying that statute and Maryland's criminal child abuse statutes, proves that the Court's test will never be used to find a relationship between the civil scheme and law enforcement goals significant enough to implicate the Fifth Amendment.The regulations embodied in the juvenile welfare statute are intimately related to the enforcement of state criminal statutes prohibiting child abuse, Md. Ann. Code, Art. 27, 35A (1987). State criminal decisions suggest that information supporting criminal convictions is often obtained through civil proceedings and the subsequent protective oversight by BCDSS. See, e. g., Lee v. State, 62 Md. App. 341, 489 A. 2d 87 (1985). See also 3 Code of Md. Regs. 07.02.07.08(A)(1) and 07.02.07.08(C)(1)(b) (1988) (requiring Social Services Administration to maintain a Child Abuse Central Registry and allowing law enforcement officials access to the Registry). In this respect, Maryland's juvenile protection system resembles the revenue system at issue in Marchetti, which required persons engaged in the business of accepting wagers to provide certain information about their activities to the Federal Government. Focusing on the effects of the regulatory scheme, the Court held that this revenue system was not the sort of neutral civil regulatory scheme that could trump the Fifth Amendment privilege. Even though the Government's "principal interest [was] evidently the collection of revenue," 390 U.S., at 57, the information sought would increase the "likelihood that any past or present gambling offenses [would] be discovered and successfully prosecuted," id., at 52.In contrast to Marchetti, the Court here disregards the practical implications of the civil scheme and holds that the juvenile protection system does not "'focu[s] almost exclusively on conduct which was criminal.'" Ante, at 560 (quoting Byers, supra, at 454 (Harlan, J., concurring in judgment). See also Byers, supra, at 430 (plurality opinion) (determining statute at issue to be "essentially regulatory, not criminal"). I cannot agree with this approach. The State's goal of protecting children from abusive environments through its juvenile welfare system cannot be separated from criminal provisions that serve the same goal. When the conduct at which a civil statute aims - here, child abuse and neglect - is frequently the same conduct subject to criminal sanction, it strikes me as deeply problematic to dismiss the Fifth Amendment concerns by characterizing the civil scheme as "unrelated to criminal law enforcement or investigation," ante, at 561. A civil scheme that inevitably intersects with criminal sanctions may not be used to coerce, on pain of contempt, a potential criminal defendant to furnish evidence crucial to the success of her own prosecution.I would apply a different analysis, one that is more faithful to the concerns underlying the Fifth Amendment. This approach would target respondent's particular claim of privilege, the precise nature of the testimony sought, and the likelihood of self-incrimination caused by this respondent's compliance. "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, . Accord, Marchetti, supra, at 48; Malloy v. Hogan, . This analysis unambiguously indicates that Bouknight's Fifth Amendment privilege must be respected to protect her from the serious risk of self-incrimination. See supra, at 563-564.An individualized inquiry is preferable to the Court's analysis because it allows the privilege to turn on the concrete facts of a particular case, rather than on abstract characterizations concerning the nature of a regulatory scheme. Moreover, this particularized analysis would not undermine any appropriate goals of civil regulatory schemes that may intersect with criminal prohibitions. Instead, the ability of a State to provide immunity from criminal prosecution permits it to gather information necessary for civil regulation, while also preserving the integrity of the privilege against self-incrimination. The fact that the State throws a wide net in seeking information does not mean that it can demand from the few persons whose Fifth Amendment rights are implicated that they participate in their own criminal prosecutions. Rather, when the State demands testimony from its citizens, it should do so with an explicit grant of immunity.2The Court's approach includes a second element; it holds that a civil regulatory scheme cannot override Fifth Amendment protection unless it is targeted at the general public. Such an analysis would not be necessary under the particularized approach I advocate. Even under the Court's test, however, Bouknight's right against self-incrimination should not be diminished because Maryland's juvenile welfare scheme clearly is not generally applicable. A child is considered in need of assistance because "[h]e is mentally handicapped or is not receiving ordinary and proper care and attention, and ... [h]is parents ... are unable or unwilling to give proper care and attention to the child and his problems." Md. Cts. & Jud. Proc. Code Ann. 3-801(e) (Supp. 1989). The juvenile court has jurisdiction only over children who are alleged to be in need of assistance, not over all children in the State. See 3-804(a). It thus has power to compel testimony only from those parents whose children are alleged to be CINA's. In other words, the regulatory scheme that the Court describes as "broadly directed," ante, at 559, is actually narrowly targeted at parents who through abuse or neglect deny their children the minimal reasonable level of care and attention. Not all such abuse or neglect rises to the level of criminal child abuse, but parents of children who have been so seriously neglected or abused as to warrant allegations that the children are in need of state assistance are clearly "a selective group inherently suspect of criminal activities." See supra, at 567.IIIIn the end, neither line of precedents relied on by the Court justifies riding roughshod over Bouknight's constitutional privilege against self-incrimination. The Court cannot accurately characterize her as a "custodian" in the same sense as the Court has used that word in the past. Nor is she the State's "agent," whom the State may require to act on its behalf. Moreover, the regulatory scheme at issue here is closely intertwined with the criminal regime prohibiting child abuse and applies only to parents whose abuse or neglect is serious enough to warrant state intervention.Although I am disturbed by the Court's willingness to apply inapposite precedent to deny Bouknight her constitutional right against self-incrimination, especially in light of the serious allegations of homicide that accompany this civil proceeding, I take some comfort in the Court's recognition that the State may be prohibited from using any testimony given by Bouknight in subsequent criminal proceedings. Ante, at 561 (leaving open the question of the "State's ability to use the testimonial aspects of Bouknight's act of production" in such criminal proceedings).2 Because I am not content to deny Bouknight the constitutional protection required by the Fifth Amendment now in the hope that she will not be convicted later on the basis of her own testimony, I dissent. |
0 | [Footnote *] Together with No. 75-5015, Wood v. Ohio, also on certiorari to the same court. During the course of their state criminal trials petitioners, who after arrest were given warnings in line with Miranda v. Arizona, , took the stand and gave an exculpatory story that they had not previously told to the police or the prosecutor. Over their counsel's objection, they were cross-examined as to why they had not given the arresting officer the exculpatory explanations. Petitioners were convicted, and their convictions were upheld on appeal. Held: The use for impeachment purposes of petitioner's silence, at the time of arrest and after they received Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. Post-arrest silence following such warnings is insolubly ambiguous; moreover, it would be fundamentally unfair to allow an arrestee's silence to be used to impeach an explanation subsequently given at trial after he had been impliedly assured, by the Miranda warnings, that silence would carry no penalty. Pp. 616-620. Reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 620.James R. Willis argued the cause for petitioners and filed briefs in both cases.Ronald L. Collins argued the cause pro hac vice and filed a brief for respondent in both cases.Fn Fn Solicitor General Bork filed a brief for the United States as amicus curiae. MR. JUSTICE POWELL delivered the opinion of the Court.The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings1 at the time of his arrest. We conclude that use of the defendant's post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners.IPetitioners Doyle and Wood were arrested together and charged with selling 10 pounds of marihuana to a local narcotics bureau informant. They were convicted in the Common Pleas Court of Tuscarawas County, Ohio, in separate trials held about one week apart. The evidence at their trials was identical in all material respects.The State's witnesses sketched a picture of a routine marihuana transaction. William Bonnell, a well-known "street person" with a long criminal record, offered to assist the local narcotics investigation unit in setting up drug "pushers" in return for support in his efforts to receive lenient treatment in his latest legal problems. The narcotics agents agreed. A short time later, Bonnell advised the unit that he had arranged a "buy" of 10 pounds of marihuana and needed $1,750 to pay for it. Since the banks were closed and time was short, the agents were able to collect only $1,320. Bonnell took this money and left for the rendezvous, under surveillance by four narcotics agents in two cars. As planned, he met petitioners in a bar in Dover, Ohio. From there, he and petitioner Wood drove in Bonnell's pickup truck to the nearby town of New Philadelphia, Ohio, while petitioner Doyle drove off to obtain the marihuana and then meet them at a prearranged location in New Philadelphia. The narcotics agents followed the Bonnell truck. When Doyle arrived at Bonnell's waiting truck in New Philadelphia, the two vehicles proceeded to a parking lot where the transaction took place. Bonnell left in his truck, and Doyle and Wood departed in Doyle's car. They quickly discovered that they had been paid $430 less than the agreed-upon price, and began circling the neighborhood looking for Bonnell. They were stopped within minutes by New Philadelphia police acting on radioed instructions from the narcotics agents. One of those agents, Kenneth Beamer, arrived on the scene promptly, arrested petitioners, and gave them Miranda warnings. A search of the car, authorized by warrant, uncovered the $1,320.At both trials, defense counsel's cross-examination of the participating narcotics agents was aimed primarily at establishing that, due to a limited view of the parking lot, none of them had seen the actual transaction but had seen only Bonnell standing next to Doyle's car with a package under his arm, presumably after the transaction.2 Each petitioner took the stand at his trial and admitted practically everything about the State's case except the most crucial point: who was selling marihuana to whom. According to petitioners, Bonnell had framed them. The arrangement had been for Bonnell to sell Doyle 10 pounds of marihuana. Doyle had left the Dover bar for the purpose of borrowing the necessary money, but while driving by himself had decided that he only wanted one or two pounds instead of the agreed-upon 10 pounds. When Bonnell reached Doyle's car in the New Philadelphia parking lot, with the marihuana under his arm, Doyle tried to explain his change of mind. Bonnell grew angry, threw the $1,320 into Doyle's car, and took all 10 pounds of the marihuana back to his truck. The ensuing chase was the effort of Wood and Doyle to catch Bonnell to find out what the $1,320 was all about.Petitioners' explanation of the events presented some difficulty for the prosecution, as it was not entirely implausible and there was little if any direct evidence to contradict it.3 As part of a wide-ranging cross-examination for impeachment purposes, and in an effort to undercut the explanation, the prosecutor asked each petitioner at his respective trial why he had not told the frameup story to Agent Beamer when he arrested petitioners. In the first trial, that of petitioner Wood, the following colloquy occurred:4 "Q. [By the prosecutor.] Mr. Beamer did arrive on the scene? "A. [By Wood.] Yes, he did. "Q. And I assume you told him all about what happened to you? ... . . "A. No. "Q. You didn't tell Mr. Beamer? ... . . "A. No. "Q. You didn't tell Mr. Beamer this guy put $1,300 in your car? ... . . "A. No, sir. "Q. And we can't understand any reason why anyone would put money in your car and you were chasing him around town and trying to give it back? ... . . "A. I didn't understand that. "Q. You mean you didn't tell him that? ... . . "A. Tell him what? ... . . "Q. Mr. Wood, if that is all you had to do with this and you are innocent, when Mr. Beamer arrived on the scene why didn't you tell him? ... . . "Q. But in any event you didn't bother to tell Mr. Beamer anything about this? "A. No, sir." Defense counsel's timely objections to the above questions of the prosecutor were overruled. The cross-examination of petitioner Doyle at his trial contained a similar exchange, and again defense counsel's timely objections were overruled.5 Each petitioner appealed to the Court of Appeals, Fifth District, Tuscarawas County, alleging, inter alia, that the trial court erred in allowing the prosecutor to cross-examine the petitioner at his trial about his post-arrest silence. The Court of Appeals affirmed the convictions, stating as to the contentions about the post-arrest silence: "This was not evidence offered by the state in its case in chief as confession by silence or as substantive evidence of guilt but rather cross examination of a witness as to why he had not told the same story earlier at his first opportunity. "We find no error in this. It goes to credibility of the witness." The Supreme Court of Ohio denied further review. We granted certiorari to decide whether impeachment use of a defendant's post-arrest silence violates any provision of the Constitution,6 a question left open last Term in United States v. Hale, , and on which the Federal Courts of Appeals are in conflict. See id., at 173 n. 2.IIThe State pleads necessity as justification for the prosecutor's action in these cases. It argues that the discrepancy between an exculpatory story at trial and silence at time of arrest gives rise to an inference that the story was fabricated somewhere along the way, perhaps to fit within the seams of the State's case as it was developed at pretrial hearings. Noting that the prosecution usually has little else with which to counter such an exculpatory story, the State seeks only the right to cross-examine a defendant as to post-arrest silence for the limited purpose of impeachment. In support of its position the State emphasizes the importance of cross-examination in general, see Brown v. United States, , and relies upon those cases in which this Court has permitted use for impeachment purposes of post-arrest statements that were inadmissible as evidence of guilt because of an officer's failure to follow Miranda's dictates. Harris v. New York, ; Oregon v. Hass, ; see also Walder v. United States, . Thus, although the State does not suggest petitioners' silence could be used as evidence of guilt, it contends that the need to present to the jury all information relevant to the truth of petitioners' exculpatory story fully justifies the cross-examination that is at issue.Despite the importance of cross-examination,7 we have concluded that the Miranda decision compels rejection of the State's position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, , require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.8 See United States v. Hale, supra, at 177. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.9 MR. JUSTICE WHITE, concurring in the judgment in United States v. Hale, supra, at 182-183, put it very well:"[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony... . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case."10 We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.11 The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners' convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion. So ordered. |
8 | Section 1 (a) of the Davis-Bacon Act provides that advertised specifications for federal construction contracts in excess of $2,000 "shall contain" a provision stating the minimum wages to be paid laborers and mechanics, which wages must be based on those the Secretary of Labor determines to be prevailing in the locality, and further provides that every contract based on such specifications "shall contain" a stipulation that the contractor will pay wages not less than those stated in the specifications. Petitioner made a contract with the Atomic Energy Commission to provide scientific and management services to the United States in connection with the construction, alteration, and repair of the Fermi National Accelerator Laboratory, a high-energy physics research facility. The contract was administratively determined not to call for work subject to the Act, and therefore did not contain a prevailing wage stipulation. Respondent, a former employee of petitioner, brought suit against petitioner on behalf of himself and others similarly situated, seeking damages on the theory that petitioner had violated the Davis-Bacon Act by failing to pay prevailing wages for the construction work. The District Court entered summary judgment for petitioner on the ground that since it appeared from the record that there were no express Davis-Bacon Act stipulations in the contract, it would be improper for the court to declare in the first instance that the contract was subject to the Act and to make appropriate wage determinations for the parties. The Court of Appeals reversed, holding that if petitioner actually performed Davis-Bacon Act work with its own employees, respondent and his class became entitled to the prevailing wages, and the court remanded the case to allow respondent the opportunity to demonstrate, if he could, that petitioner had used him and his class to perform Davis-Bacon Act work.Held: The Davis-Bacon Act does not confer upon an employee a private right of action for back wages under a contract that has been administratively determined not to call for work subject to the Act and thus does not contain prevailing wage stipulations. Pp. 767-784. (a) While requiring that certain stipulations be placed in federal construction contracts for the benefit of mechanics and laborers, 1 of the Act does not confer rights directly on these individuals but is simply "phrased as a directive to federal agencies engaged in the disbursement of public funds," Cannon v. University of Chicago, , n. 14. That Congress did not intend to authorize a suit for back wages where there are no prevailing wage stipulations in the contract is also indicated by the absence of a provision comparable to 3 of the Davis-Bacon Act, which confers on laborers and mechanics working under a contract containing such stipulations a conditional right of action against the contractor on the payment bond required by the Miller Act. Pp. 771-773. (b) The Davis-Bacon Act's legislative history further supports the conclusion that implication of a private right of action under the circumstances of this case would be inconsistent with congressional intent. No contrary inference can be drawn from the Portal-to-Portal Act of 1947. Pp. 773-781. (c) Finally, the underlying purpose of the Davis-Bacon Act's legislative scheme indicates that Congress did not intend to create the right of action asserted by respondent. To imply a private right of action to sue for Davis-Bacon Act wages under a contract that does not contain prevailing wage stipulations would destroy the careful balance the Act strikes between the interests of contractors and their employees. In addition, the implication of a private right of action where there has been no Davis-Bacon Act determination would introduce substantial uncertainty into Government contracting, and would undercut the elaborate administrative scheme promulgated to assure consistency in the administration and enforcement of the Act. Pp. 782-784. 595 F.2d 396, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court.Robert E. Mann argued the cause and filed briefs for petitioner.Robert Jay Nye argued the cause for respondent. With him on the brief were Hugh B. Arnold and Daniel N. Kadjan.Harriet S. Shapiro argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General McCree, Assistant Attorney General Daniel, Deputy Solicitor General Geller, Robert E. Kopp, and Eloise E. Davies.* [Footnote *] J. Albert Woll, Laurence Gold, Laurence J. Cohen, and George Kaufmann filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging affirmance.JUSTICE BLACKMUN delivered the opinion of the Court.The Davis-Bacon Act requires that certain federal construction contracts contain a stipulation that laborers and mechanics will be paid not less than prevailing wages, as determined by the Secretary of Labor. The question presented in this case is whether the Act confers upon an employee a private right of action for back wages under a contract that has been administratively determined not to call for Davis-Bacon work, and that therefore does not contain a prevailing wage stipulation.ISection 1 (a) of the Davis-Bacon Act of March 3, 1931 (Act), ch. 411, 1, 46 Stat. 1494, as amended, 40 U.S.C. 276a (a),1 provides that the advertised specifications for every federal contract in excess of $2,000 "for construction, alteration, and/or repair ... of public buildings or public works of the United States ... shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing" for corresponding classes of laborers and mechanics employed on similar projects in the locality. Every contract based upon these specifications must contain a stipulation that the contractor shall pay wages not less than those stated in the specifications.2 A contract entered into pursuant to the Act must also provide that if the contractor fails to pay the minimum wages specified in the contract, the Government contracting officer may withhold so much of the accrued payments as may be considered necessary to pay the laborers and mechanics the difference between the contract wages and those actually paid. Section 3 of the Act, as added Aug. 30, 1935, 49 Stat. 1012, 40 U.S.C. 276a-2,3 authorizes the Comptroller General to pay these accrued payments directly to the laborers and mechanics.Should the withheld funds prove insufficient to reimburse the employees, 3 confers on them "the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials." Laborers and mechanics working under a contract that contains Davis-Bacon Act stipulations thus may themselves bring suit against the contractor on the payment bond that the Miller Act of August 24, 1935, 49 Stat. 793, as amended, 40 U.S.C. 270a et seq. (1976 ed. and Supp. III), requires for the protection of persons supplying labor or materials under certain federal construction contracts.4 In addition, if the contractor fails to pay at least the stipulated minimum wages, the contract may be terminated and the contractor debarred from all Government contracts for a period of three years.5 Pursuant to Reorganization Plan No. 14 of 1950, 5 U.S.C. App., p. 746, the Secretary of Labor (Secretary) has issued regulations designed to "assure coordination of administration and consistency of enforcement" of the Act and some 60 related statutes.6 See 29 CFR Parts 1, 3, 5, 7 (1980).7 In their turn, various contracting agencies have issued detailed regulations concerning the applicability of the Act to the contracts they let. See, e. g., 41 CFR Subpart 9-18.7 (1979) (Department of Energy). The contracting agency has the initial responsibility for determining whether a particular contract is subject to the Davis-Bacon Act. See A. Thieblot, The Davis-Bacon Act 31 (Labor Relations and Public Policy Series Report No. 10, Univ. of Pa., 1975) (hereinafter Thieblot). If the agency determines that the contract is subject to the Act, it must determine the appropriate prevailing wage rate,8 and ensure that the rate chosen is inserted in the requests for bids on the project, as well as in any resulting contract. See 29 CFR 5.5 (1980); Thieblot, at 31-34.The contracting agency's coverage and classification determinations are subject to administrative review. Prior to the award of a contract, a contractor, labor organization, or employee may appeal a final agency determination that a project is not covered by the Act to the Department of Labor. 29 CFR 5.12 and 7.9 (1980).9 Disputes over the proper classification of workers under a contract containing Davis-Bacon provisions must be referred to the Secretary for determination. 41 CFR 1-18.703-1 (i) (1979); 29 CFR 5.12 (1980). See North Georgia Bldg. & C. T. C. v. U.S. Dept. of Transp., 399 F. Supp. 58 (ND Ga. 1975). In turn, any "interested person" may appeal the Secretary's wage rate determination to the Wage Appeals Board of the Department of Labor, provided review is sought prior to the award of the contract at issue. 29 CFR 1.16 (1980); 29 CFR Part 7 (1980). See Thieblot, at 40-43.10 IIPetitioner Universities Research Association, Inc., is a not-for-profit consortium of North American universities. In 1967, petitioner made a contract with the Atomic Energy Commission (AEC) to provide scientific and management services to the United States in connection with the construction, alteration, and repair of the Fermi National Accelerator Laboratory, a high-energy physics research facility located in Kane and Du Page Counties, Ill. Effective April 1972, this contract was modified to provide that petitioner also would furnish personnel to administer and operate the Fermi Laboratory. The contract was later assumed in turn by the AEC's successors, the Energy Research and Development Agency (ERDA) and the Department of Energy (DOE).11 At all relevant times the funding for the Fermi Laboratory was supplied entirely by the United States through the AEC. The contract, which tracked AEC procurement regulations,12 specified the rates of compensation to be paid certain classifications of employees; in addition, petitioner was required to obtain approval from the AEC prior to adopting new classifications of employees or making any changes in employee compensation.Article XXXIII of the contract expressly stated that it was not contemplated that petitioner would use its own employees to perform work that the AEC determined to be subject to the Act; such work, if any, was to be procured by subcontracts approved by the AEC and containing Davis-Bacon stipulations.13 In a letter dated January 23, 1968, from the AEC to petitioner, the AEC stated that Art. XXXIII was included in the contract with the understanding that the contract would be modified to incorporate Davis-Bacon stipulations "[i]f presently unforeseen conditions" arose making it necessary that Davis-Bacon work be performed by petitioner with its own employees.14 Another letter, dated April 6, 1972, with identical provisions was sent to petitioner by the AEC following the modification of the contract in 1972. App. 63. In order to implement Art. XXXIII, a committee of AEC officials was designated to review specific work projects and to make Davis-Bacon Act coverage determinations as was necessary.15 In April 1975, respondent Stanley E. Coutu, a former employee of petitioner, brought suit in the United States District Court for the Northern District of Illinois on behalf of himself and other mechanics and laborers similarly situated, seeking more than $5 million in damages on the theory that petitioner had violated the Davis-Bacon Act by failing to pay prevailing wages for construction work performed by its employees under the contract with the AEC. Respondent had been employed by petitioner as an electronics technician from September 25, 1972, until September 10, 1975. During that time, he was compensated in accordance with the wage schedules for the "technician" classification set forth in the contract. Respondent's duties involved monitoring computers, providing assistance to scientific personnel, supervising accelerator operation, and recordkeeping. He also would make minor repairs to malfunctioning equipment, assemble prefabricated items, and assist in connecting power sources to experimental equipment. Respondent's supervisors typically were high-rated technicians, engineers, and physicists.Respondent's complaint was in seven counts. The first alleged that petitioner had failed to pay "the minimum wages required to be paid pursuant to the said contract and the prevailing wage determinations of the Secretary of Labor and the Davis-Bacon Act." App. 4 The second alleged that the contract was within the purview of the Davis-Bacon Act and that the contract by its terms provided for payment "at the legal wage rate applicable to the work actually performed." Id., at 6-7. The remaining counts rested on common-law bases, for which pendent federal jurisdiction was asserted.On October 8, 1975, the District Court dismissed respondent's first cause of action on the ground that it was not "totally borne out" by the contract. Id., at 22. The court, however, denied petitioner's motion to dismiss the second count and the pendent claims. It relied on the Seventh Circuit's first decision in McDaniel v. University of Chicago, 512 F.2d 583 (McDaniel I), vacated and remanded, , judgment re-entered on remand, 548 F.2d 689 (1977) (McDaniel II), cert. denied, . McDaniel I held that the Davis-Bacon Act conferred an implied private right of action upon an employee seeking to enforce a contractor's commitment to pay prevailing wages.16 The District Court reasoned that the AEC letter of April 6, 1972, interpreting Art. XXXIII of the contract, left open the possibility that petitioner's employees had performed work covered by the Act pursuant to proper determinations by the AEC. The court accordingly gave respondent "leave to show that the Secretary of Labor through [AEC] has made Davis-Bacon Act determinations with respect to the alleged contract, and that [respondent] and the class have performed such work at [petitioner's] direction, pursuant to the contract." App. 25.After discovery, petitioner moved for summary judgment. In support of its motion, petitioner submitted an affidavit of the chief legal counsel for the Fermi Laboratory, which stated that "[n]o Davis-Bacon Act ... stipulations requiring the payment of prevailing wages have ever been made a part of or incorporated in [the] Contract." Id., at 31-32. The District Court noted that respondent "as much concedes that the contract fails to include Davis-Bacon specifications," and it found that "[o]n the present state of the record it is clear that no Davis-Bacon Act determinations have been made a part of this contract." Id., at 32-33. After reviewing the statutory and regulatory framework of the Act, the court concluded that "it would be improper for this court to declare in the first instance that this contract is now subject to the Davis-Bacon Act and to make appropriate wage determinations for the parties." Id., at 34. The court therefore dismissed the second count and, "in the exercise of its discretion," ibid., declined to assume jurisdiction over the pendent state-law claims.The United States Court of Appeals for the Seventh Circuit reversed and remanded the case. 595 F.2d 396 (1979). That court recognized that the affidavit submitted by petitioner tended to disprove that there were express Davis-Bacon Act stipulations in the contract; it determined, however, that summary judgment on the second count was not appropriate, since "there may have been other evidence that the contract was one for Davis-Bacon Act work, in which case the required stipulations arguably become a part of the contract by operation of law." Id., at 398. Reasoning from its prior opinions in McDaniel I and II, the court concluded that "if the [petitioner] actually performed [Davis-Bacon Act] work with its own employees at the Fermi Laboratory, [respondent and his class] became entitled to the prevailing wages in Kane County where the work was to be performed." 595 F.2d, at 399. After rejecting petitioner's alternative argument that exhaustion of administrative remedies was required, the court remanded the case to allow respondent the opportunity on remand to demonstrate, if he could, that petitioner had used respondent and his class to perform Davis-Bacon construction work at the Fermi Laboratory. Id., at 402.Because of the importance of the implied-right-of-action issue, we granted certiorari. .IIIBefore us, petitioner makes two major arguments. It contends first that the federal courts do not have jurisdiction to make coverage, classification, or wage determinations under the Davis-Bacon Act. Alternatively, petitioner contends that Congress did not intend that the Davis-Bacon Act be enforced through private actions. Because we conclude that the Act does not confer a private right of action for back wages under a contract that administratively has been determined not to call for Davis-Bacon work,17 we find it unnecessary to reach the broader question whether federal courts have any jurisdiction to review agency coverage and classification determinations.18 Similarly, we do not decide whether the Act creates an implied private right of action to enforce a contract that contains specific Davis-Bacon Act stipulations.19 Relying on McDaniel,20 respondent argues that it must be assumed that no statutory relief is available to him, and that therefore the implication of a private right of action is necessary to effectuate the purpose of Congress in passing the Act. But as the Court's recent opinions have made clear, the question whether a statute creates a private right of action is ultimately "one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law." Touche Ross & Co. v. Redington, . See Transamerica Mortgage Advisors, Inc. v. Lewis, . In order to determine whether Congress intended to create the private right of action asserted here, we consider three factors set forth in Cort v. Ash, , that we have "traditionally relied upon in determining legislative intent": the "language and focus of the statute, its legislative history, and its purpose." See Touche Ross, 442 U.S., at 575-576. We conclude that each of these factors points to the conclusion that Congress did not intend to create a private right of action in favor of an employee under a contract that does not contain prevailing wage stipulations.21 AWe turn first to the language of the Act itself. See Transamerica, 444 U.S., at 16; Touche Ross, 442 U.S., at 568. Section 1 of the Act states that the advertised specifications for every federal construction contract in excess of the specified amount "shall contain" a provision stating the minimum wages to be paid laborers and contractors, which wages shall be based on those the Secretary determines to be prevailing in the locality. Section 1 further provides that "every contract based upon these specifications shall contain a stipulation" that the contractor shall pay wages "not less than those stated in the advertised specifications."The Court's previous opinions have recognized that "[o]n its face, the Act is a minimum wage law designed for the benefit of construction workers." United States v. Binghamton Constr. Co., ; Walsh v. Schlect, . But the fact that an enactment is designed to benefit a particular class does not end the inquiry; instead, it must also be asked whether the language of the statute indicates that Congress intended that it be enforced through private litigation. See Transamerica, 444 U.S., at 17-18.22 The Court consistently has found that Congress intended to create a cause of action "where the language of the statute explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff in the case." Cannon v. University of Chicago, , n. 13 (1979). Conversely, it has noted that there "would be far less reason to infer a private remedy in favor of individual persons" where Congress, rather than drafting the legislation "with an unmistakable focus on the benefited class," instead has framed the statute simply as a general prohibition or a command to a federal agency. Id., at 690-692. Section 1 of the Davis-Bacon Act requires that certain stipulations be placed in federal construction contracts for the benefit of mechanics and laborers, but it does not confer rights directly on those individuals. Since 1 is simply "phrased as a directive to federal agencies engaged in the disbursement of public funds," 441 U.S., at 693, n. 14,23 its language provides no support for the implication of a private remedy.Moreover, 3 of the Act demonstrates that in this context, as in others, "when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly." Touche Ross, 442 U.S., at 572. Under 1 of the Act, the contracting agency is entitled to withhold "so much of accrued payments" as may be considered necessary to pay to laborers and mechanics the difference between "the rates of wages required by the contract" and the rates actually paid. If the wages so withheld are insufficient to reimburse the laborers and mechanics, then 3 confers on them the same "right of action and/or intervention" conferred by the Miller Act on laborers and materialmen. The absence of a comparable provision authorizing a suit for back wages where there are no prevailing wage stipulations in the contract buttresses our conclusion that Congress did not intend to create such a remedy.24 BThe legislative history of the Davis-Bacon Act provides further support for the result we reach. The Act was "designed to protect local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area." House Committee on Education and Labor, Legislative History of the Davis-Bacon Act, 87th Cong., 2d Sess., 1 (Comm. Print 1962) (Legislative History). Passage of the Act was spurred by the economic conditions of the early 1930's, which gave rise to an oversupply of labor and increased the importance of federal building programs, since private construction was limited. See Thieblot, at 7; Elisburg, Wage Protection Under the Davis-Bacon Act, 28 Lab. L. J. 323, 324 (1977); S. Rep. No. 1445, 71st Cong., 3d Sess., 1 (1931). In the words of Representative Bacon, the Act was intended to combat the practice of "certain itinerant, irresponsible contractors, with itinerant, cheap, bootleg labor, [who] have been going around throughout the country `picking' off a contact here and a contract there." The purpose of the bill was "simply to give local labor and the local contractor a fair opportunity to participate in this building program." 74 Cong. Rec. 6510 (1931).25 As originally enacted in 1931, ch. 411, 46 Stat. 1494, the Act required that every federal contract in excess of $5,000 in amount for "construction, alteration, and/or repair of any public buildings" contain a provision stating that the rate of wages paid laborers and mechanics would not be less than the prevailing rate for similar work in the locality; the Act further required that every contract contain a provision stating that disputes as to what the prevailing wage was on any given project were to be conclusively determined by the Secretary if the contracting officer was unable to resolve the controversy. The original Act thus did not provide for predetermination of prevailing wages by the Secretary; it also did not establish any enforcement mechanism.26 Congress soon concluded, however, that the Act as originally drafted was inadequate. Discontent focused on the lack of effective enforcement provisions and the "postdetermination" of the prevailing wage. Legislative History 2. Contractors called for predetermination of prevailing wages, claiming that they had been put to unexpected expense by postcontract determinations that the prevailing wage was higher than the rate upon which they had based their bids. Ibid.; Hearings on H. R. 12 et al. before the House Committee on Labor, 72d Cong., 1st Sess., 8, 12, 14, 50-51, 54-55, 58, 65 (1932). While the labor movement was divided on this issue, most of the national leadership opposed predetermination. Legislative History 2. See 75 Cong. Rec. 12379 (1932) (remarks of Rep. Ramspeck); Hearings on H. R. 12, at 24, 114, 116, 122-123. Labor was united, however, in calling for the establishment of an enforcement mechanism. Legislative History 2. See Hearings on H. R. 12, at 122-123; 75 Cong. Rec. 12379 (1932) (remarks of Rep. Ramspeck).In 1932, both Houses of Congress passed an amendment to the Act providing for predetermination of prevailing wages by the Secretary and for penalties for failure to pay the rate "stated in the advertised specifications and made a part of the contract." See S. 3847, 72d Cong., 1st Sess. (1932). The bill, however, was vetoed by the President. See Veto Message, S. Doc. No. 134, 72d Cong., 1st Sess. (1932). But in 1935, Congress succeeded in adding the predetermination and enforcement provisions found in the current statute. Act of Aug. 30, 1935, 49 Stat. 1011.The legislative history accompanying these amendments is significant in two respects. First, it indicates that Congress amended the Act to provide for predetermination of wages not only in order to end abuses,27 but "so that the contractor may know definitely in advance of submitting his bid what his approximate labor costs will be." S. Rep. No. 1155, 74th Cong., 1st Sess., 2 (1935); H. R. Rep. No. 1756, 74th Cong., 1st Sess., 2 (1935). Second, it demonstrates that Congress intended to give laborers and mechanics only "the same right of action against the contractor and his sureties in court which is now conferred by the bond statute." S. Rep. No. 1155, at 2; H. R. Rep. No. 1756, at 2.28 To imply a private right of action here would be to defeat each of these congressional objectives.The legislative history of the 1964 amendment to the Act also cuts against respondent's position. In 1964, Congress considered and passed H. R. 6041, 88th Cong., 1st Sess., a bill to amend the Act in order to include fringe benefits within the definition of wages. Pub. L. 88-349, 1, 78 Stat. 238. While H. R. 6041 was under consideration, Representative Goodell introduced a bill that would have amended the Act to provide for judicial review of the Secretary's wage determinations at the behest of any aggrieved person, and that also would have conferred a private right of action on any laborer or mechanic who claimed that his employer had "refused or failed to pay the wages that he is required to pay by reason of a wage determination issued by the Secretary of Labor." H. R. 9590, 88th Cong., 2d Sess., 2, p. 4 (1964). Representative Goodell sought to have the substance of H. R. 9590 considered during the House debate on H. R. 6041. After extended debate on the merits of judicial review of Davis-Bacon determinations, however, the House invoked its rule against nongermane amendments, and therefore refused to consider Mr. Goodell's proposals.29 110 Cong. Rec. 1194-1204 (1964).Since the Goodell amendments were not defeated on their merits, it cannot be said that Congress has flatly rejected the proposition that judicial review should be available under the Act. Nor can the views of this later Congress be treated as determinative of the question whether the Act's drafters intended to preclude any form of judicial review. Nonetheless, we think it significant that both the proponents and opponents of the Goodell amendments assumed that the Act did not contemplate judicial review of determinations made by the Secretary; they differed only over whether the Act should be amended to permit such review. Ibid. Further, although much of the debate centered on the desirability of permitting judicial review of wage determinations,30 respondent errs in contending that that was the sole topic of discussion, for several speakers expressed their view that the Act did not permit judicial review of any determination under the Act whatsoever.31 In particular Representative Bell pointed out that workers could not seek judicial review of the Secretary's determination that certain work was "`the installation of equipment' and not the type of construction work which was subject to Davis-Bacon," and "neither employers nor employees have any recourse except to beg the mercy of the Secretary or prevail upon their Congressman to intercede."32 Id., at 1201-1202. Thus, while not dispositive, the debate on the Goodell amendments reinforces the conclusion that it would be inappropriate for this Court to find that the Act implicitly creates the right of action contended for here.Respondent, however, asserts that a contrary inference must be drawn from the Portal-to-Portal Act of 1947, 61 Stat. 84, as amended, 29 U.S.C. 251 et seq. Relying on the analysis set forth in McDaniel II, 548 F.2d, at 694, respondent points out that 6 of the Portal-to-Portal Act, 61 Stat. 87, 29 U.S.C. 255 (a), imposes a 2-year limitation on any cause of action for nonwillful "unpaid minimum wages, unpaid overtime compensation, or liquidated damages" under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., the Walsh-Healey Act, 41 U.S.C. 35 et seq., or the Davis-Bacon Act. Since the Miller Act imposes a 1-year limitation on suits on the contractor's bond, 40 U.S.C. 270b (b), respondent contends that the 2-year statute of limitations set forth in the Portal-to-Portal Act not only affirms the existence of a private cause of action under the Act, but excludes the proposition that that cause of action is limited to a suit on the Miller Act bond.We agree with amicus United States, however, that this argument reads too much into the Portal-to-Portal Act. That statute was intended to curtail the numerous suits for unpaid compensation and liquidated damages under the FLSA that were filed after this Court's decision in Anderson v. Mount Clemens Pottery Co., . See Unexcelled Chemical Corp. v. United States . Although no portal-to-portal suits had been filed under the Davis-Bacon or Walsh-Healey Acts, see 93 Cong. Rec. 2088 (1947) (remarks of Sens. Donnell and McGrath), Congress chose to include those statutes within the scope of the Portal-to-Portal Act on the ground that they, like the FLSA, related to minimum wages and were therefore affected by the Mount Clemens decision. See H. R. Rep. No. 71, 80th Cong., 1st Sess., 5 (1947); 93 Cong. Rec. 2088 (1947) (remarks of Sen. Donnell). The legislative history of the bills that became the Portal-to-Portal Act makes clear, however, that Congress simply did not recognize that it had created two incompatible statutes of limitations under the Davis-Bacon Act.33 Moreover, even if the Portal-to-Portal Act had been intended to create a longer statute of limitations for actions under the Davis-Bacon Act than that applicable to suits on the Miller Act bond, respondent has pointed to nothing in the legislative history of the Portal-to-Portal Act that suggests that Congress believed that the Davis-Bacon Act conferred a private right of action for back wages under a contract lacking prevailing wage stipulations; to the contrary, Congress' concern was to foreclose the possibility of portal-to-portal suits for back wages under contracts that did contain Davis-Bacon Act provisions.34 CFinally, the underlying purpose of the legislative scheme indicates that Congress did not intend to create the right of action asserted by respondent. As noted above, the 1935 amendments added two key features to the Act: administrative predetermination of the minimum wages that the contractor must pay his laborers and mechanics, and a means whereby laborers and mechanics could recover back wages under a contract containing prevailing wage stipulations. The Act thus carefully balances the interests of contractors and their employees. The contractor is able to "know definitely in advance of submitting his bid what his approximate labor costs will be,"35 S. Rep. No. 1155, at 2, while the laborer or mechanic is given a right of action to enforce the stipulated wages. To imply a private right of action to sue for Davis-Bacon wages under a contract that does not contain prevailing wage stipulations would destroy this careful balance.In addition, as petitioner and amicus United States point out, the implication of a private right of action where there has been no Davis-Bacon determination would introduce substantial uncertainty into Government contracting. In the case of cost-plus contracts, federal budgeting would be disrupted by a postcontract judicial determination that wages higher than those set forth in the contract must be paid. Fixed-price contracting also would be adversely affected, since it is likely that contractors would submit inflated bids to take into account the possibility that they would have to pay wages higher than those set forth in the specifications.36 Finally, postcontract challenges would disrupt timely and efficient performance of Government contracts, and might well provoke jurisdictional disputes between construction unions and unions representing nonconstruction workers.37 The implication of a private right of action here would undercut as well the elaborate administrative scheme promulgated pursuant to Reorganization Plan No. 14. The goal of that plan was to introduce consistency into the administration and enforcement of the Act and related statutes; to that end, the Secretary and contracting agencies have issued detailed regulations governing, among other things, coverage determinations. The uniformity fostered by those regulations would be short-lived if courts were free to make postcontract coverage rulings. Respondent, however, replies that no administrative functions would be disrupted by judicial intervention, since Davis-Bacon stipulations are incorporated by operation of law into every federal construction contract, regardless of whether the contracting agency has made a coverage determination. But this assertion ignores the fact that the Act does not define the terms "construction, alteration, and/or repair," "public buildings or public works," and "mechanics and/or laborers."38 A number of commentators have noted the difficulty of determining whether particular work constitutes "construction" within the meaning of the Act, particularly when the work is performed in the context of an AEC contract involving a nuclear facility.39 Like other contracting agencies, AEC and its successors have developed detailed guidelines for determining whether particular work is covered by the Act. See n. 15, supra. Whatever may be the merits of allowing judicial review of these complex coverage determinations prior to contracting, it clearly would be inappropriate for a court to substitute its judgment for that of the contracting agency in a private action brought after the contract was let.IVIn sum, to imply a private right of action under these circumstances would severely disrupt federal contracting. Nothing in the language, history, or purpose of the Davis-Bacon Act suggests that Congress intended that result. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
7 | The Clean Water Act (Act) requires that National Pollutant Discharge Elimination System (NPDES) permits be secured before pollutants are discharged from any point source into the navigable waters of the United States. See 33 U. S. C. §§1311(a), 1362(12). One of the Environmental Protection Agency's (EPA) implementing regulations, the Silvicultural Rule, specifies which types of logging-related discharges are point sources. 40 CFR §122.27(b)(1). These discharges require NPDES permits unless some other federal statutory provision exempts them from coverage. One such statutory provision exempts "discharges composed entirely of stormwater," 33 U. S. C. §1342(p)(1), unless the discharge is "associated with industrial activity," §1342(p)(2)(B). Under the EPA's Industrial Stormwater Rule, the term "associated with industrial activity" covers only discharges "from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 CFR §122.26(b)(14). Shortly before oral argument in the instant cases, the EPA issued a final version of an amendment to the Industrial Stormwater Rule, clarifying that the NPDES permit requirement applies only to logging operations involving rock crushing, gravel washing, log sorting, and log storage facilities, which are all listed in the Silvicultural Rule. Petitioner Georgia-Pacific West has a contract with Oregon to harvest timber from a state forest. When it rains, water runs off two logging roads used by petitioner into ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, which evidence shows may be harmful to fish and other aquatic organisms. Respondent Northwest Environmental Defense Center (NEDC) filed suit against petitioner and state and local governments and officials, including petitioner Decker, invoking the Act's citizen-suit provision, 33 U. S. C. §1365, and alleging that the defendants had not obtained NPDES permits before discharging stormwater runoff into two Oregon rivers. The District Court dismissed the action for failure to state a claim, concluding that NPDES permits were not required because the ditches, culverts, and channels were not point sources of pollution under the Act and the Silvicultural Rule. The Ninth Circuit reversed. It held that the conveyances were point sources under the Silvicultural Rule. It also concluded that the discharges were "associated with industrial activity" under the Industrial Stormwater Rule, despite the EPA's contrary conclusion that the regulation excludes the type of stormwater discharges from logging roads at issue. Thus, the court held, the discharges were not exempt from the NPDES permitting scheme.Held: 1. A provision of the Act governing challenges to agency actions, §1369(b), is not a jurisdictional bar to this suit. That provision is the exclusive vehicle for suits seeking to invalidate certain agency decisions, such as the establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining a citizen suit under §1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations. The present action falls within the scope of §1365. Pp. 8-9. 2. The EPA's recent amendment to the Industrial Stormwater Rule does not make the cases moot. A live controversy continues to exist regarding whether petitioners may be held liable for unlawful discharges under the earlier version of the Industrial Stormwater Rule. That version governed petitioners' past discharges, which might be the basis for the imposition of penalties even if, in the future, those types of discharges will not require a permit. These cases thus remain live and justiciable. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 64-65. The fact that the District Court might rule that NEDC's arguments lack merit, or that relief is not warranted on the facts of these cases, does not make the cases moot. Pp. 9-11. 3. The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the EPA, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. The regulation is a reasonable interpretation of the statutory term "associated with industrial activity," §1342(p)(2)(B), and the agency has construed the regulation to exempt the discharges at issue here. When an agency interprets its own regulation, the Court, as a general rule, defers to it "unless that interpretation is 'plainly erroneous or inconsistent with the regulation.' " Chase Bank USA, N. A. v. McCoy, 562 U. S. ___, ___ (quoting Auer v. Robbins, 519 U. S. 452, 461). Here, it was reasonable for the EPA to conclude that the conveyances at issue are "directly related" only to the harvesting of raw materials, rather than to "manufacturing, processing, or raw materials storage areas at an industrial plant." 40 CFR §122.26(b)(14). The regulatory scheme, taken as a whole, leaves open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites and other relatively fixed facilities. Another reason to accord Auer deference to the EPA's interpretation is that there is no indication that the agency's current view is a change from prior practice or is a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___. Rather, the EPA has been consistent in its view that the types of discharges at issue do not require NPDES permits. Its decision also exists against a background of state regulation with respect to stormwater runoff from logging roads. In exercising the broad discretion the Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation would be duplicative or counterproductive in light of Oregon's extensive rules on the subject. Pp. 11-15.640 F. 3d 1063, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined, and in which Scalia, J., joined as to Parts I and II. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed an opinion concurring in part and dissenting in part. Breyer, J., took no part in the consideration or decision of the cases.Opinion of the Court 568 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.Nos. 11-338 and 11-347DOUG DECKER, in his official capacity as OREGON STATE FORESTER, et al., PETITIONERS 11-338 v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER GEORGIA-PACIFIC WEST, INC., et al., PETITIONERS 11-347 v. NORTHWEST ENVIRONMENTAL DEFENSE CENTERon writs of certiorari to the united states court of appeals for the ninth circuit[March 20, 2013] Justice Kennedy delivered the opinion of the Court. These cases present the question whether the Clean Water Act (Act) and its implementing regulations require permits before channeled stormwater runoff from logging roads can be discharged into the navigable waters of the United States. Under the statute and its implementing regulations, a permit is required if the discharges are deemed to be "associated with industrial activity." 33 U. S. C. §1342(p)(2)(B). The Environmental Protection Agency (EPA), with the responsibility to enforce the Act, has issued a regulation defining the term "associated with industrial activity" to cover only discharges "from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 CFR 122.26(b)(14) (2006). The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24-27. For reasons now to be explained, the Court concludes the EPA's determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997).IA Congress passed the Clean Water Act in 1972 to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 86 Stat. 816, 33 U. S. C. §1251(a). A central provision of the Act is its requirement that individuals, corporations, and governments secure National Pollutant Discharge Elimination System (NPDES) permits before discharging pollution from any point source into the navigable waters of the United States. See §§1311(a), 1362(12); EPA v. California ex rel. State Water Resources Control Bd., 426 U. S. 200, 205 (1976). The Act defines "point source" as"any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture." §1362(14). When the Act took effect, the EPA found it difficult to process permit applications from countless owners and operators of point sources throughout the country. The agency issued regulations exempting certain types of point-source discharges from the NPDES permitting scheme, but in 1977 those directives were found invalid. The Court of Appeals for the District of Columbia Circuit ruled that the statute did not give the EPA "authority to exempt categories of point sources from the permit requirements" of the Act. Natural Resources Defense Council, Inc. v. Costle, 568 F. 2d 1369, 1377. In response the EPA issued new regulations to define with more precision which categories of discharges qualified as point sources in the first place. Among these regulations was the so-called Silvicultural Rule. This rule is at issue here. It provides: "Silvicultural point source means any discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States. The term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff." 40 CFR §122.27(b)(1). Under the quoted rule, any discharge from a logging-related source that qualifies as a point source requires an NPDES permit unless some other federal statutory provision exempts it from that coverage. In one such provision, 33 U. S. C. §1342(p), Congress has exempted certain discharges of stormwater runoff. The statutory exemptions were considered necessary because, from the outset, the EPA had encountered recurring difficulties in determining how best to manage discharges of this kind. See, e.g., Natural Resources Defense Council, Inc. v. EPA, 966 F. 2d 1292, 1295-1296 (CA9 1992). In 1987, Congress responded to these problems and adopted various stormwater-related amendments to the Act. §405, 101 Stat. 69, 33 U. S. C. §1342(p). The 1987 amendments exempt from the NPDES permitting scheme most "discharges composed entirely of stormwater." §1342(p)(1). The general exemption, however, does not extend to all stormwater discharges. As relevant here, Congress directed the EPA to continue to require permits for stormwater discharges "associated with industrial activity." §1342(p)(2)(B). The statute does not define that term, but the EPA adopted a regulation (hereinafter Industrial Stormwater Rule) in which it defined it as"the discharge from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant. The term does not include discharges from facilities or activities excluded from the NPDES program under this part 122. For the categories of industries identified in this section, the term includes, but is not limited to, storm water discharges from . . . immediate access roads and rail lines used or traveled by carriers of raw materials, manufactured products, waste material, or by-products used or created by the facility . . . ." 40 CFR §122.26(b)(14) (2006). The Industrial Stormwater Rule also specified that, with one exception not relevant here, "[f]acilities classified as Standard Industrial Classificatio[n] 24" are "considered to be engaging in 'industrial activity' for purposes of paragraph (b)(14)." Ibid. The Standard Industrial Classifications are a system used by federal agencies to categorize firms engaged in different types of business activity. See Dept. of Labor, Standard Industrial Classifications Manual, online at http://www.osha.gov/pls/imis/sic_manual.html (as visited Mar. 14, 2013, and available in Clerk of Court's case file). Standard Industrial Classification 24 identifies industries involved in the field of "Lumber and Wood Products." 2 App. 64. This includes the "Logging" industry, defined as "[e]stablishments primarily engaged in cutting timber and in producing . . . primary forest or wood raw materials." Ibid. On November 30, 2012 — three days before the instant cases were argued in this Court — the EPA issued its final version of an amendment to the Industrial Stormwater Rule. The amendment was the agency's response to the Court of Appeals' ruling now under review. The amended version seeks to clarify the types of facilities within Standard Industrial Classification 24 that are deemed to be engaged in industrial activity for purposes of the rule. The amended Industrial Stormwater Rule does not cover all facilities within Standard Industrial Classification 24. It limits covered stormwater discharges to"[f]acilities classified within Standard Industrial Clas-sification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities . . . and Industry Groups 242 through 249." 77 Fed. Reg. 72974, pt. 122, subpt. B (2012).It should be noted, by way of explanation, that an Industry Group is a subcategory of businesses within a Standard Industrial Classification. Industry Group 241 is "Logging," while Industry Groups 242 through 245 are, respectively, "Sawmills and Planing Mills," "Millwork, Veneer, Plywood, and Structural Wood," "Wood Containers," and "Wood Buildings and Mobile Homes." Industry Group 249 is "Miscellaneous Wood Products." Industry Groups 246 through 248 are blank categories. Standard Industrial Classifications Manual, supra, Major Group 24. It is fair to say the purpose of the amended regulation is to bring within the NPDES permit process only those logging operations that involve the four types of activity (rock crushing, gravel washing, log sorting, and log storage facilities) that are defined as point sources by the explicit terms of the Silvicultural Rule. Up to this stage in the litigation, of course, the cases have been concerned with the Industrial Stormwater Rule before the amendment adopted on November 30, 2012. The amended regulation will determine whether from this point forward NPDES permits will be required for the stormwater discharges at issue. The parties disagree about the significance of the amended rule for purposes of these cases. Before reaching this and other preliminary points, however, it is appropriate to set forth the facts and history of the cases leading to the proceedings in this Court.B At issue are discharges of channeled stormwater runoff from two logging roads in Oregon's Tillamook State Forest, lying in the Pacific Coast Range about 40 miles west of Portland. Petitioner Georgia-Pacific West, along with other logging and paper-products companies, has a contract with the State of Oregon to harvest timber from the forest. It uses the roads for that purpose. When it rains (which it does often in the mountains of northwest Oregon, averaging in some areas more than 100 inches per year), water runs off the graded roads into a system of ditches, culverts, and channels that discharge the water into nearby rivers and streams. The discharges often contain large amounts of sediment, in the form of dirt and crushed gravel from the roads. There is evidence that this runoff can harm fish and other aquatic organisms. In September 2006, respondent Northwest Environmental Defense Center (NEDC) filed suit in the United States District Court for the District of Oregon. It invoked the Clean Water Act's citizen-suit provision, 33 U. S. C. §1365, and named as defendants certain firms involved in log-ging and paper-products operations (including petitioner Georgia-Pacific West), as well as state and local governments and officials (including the State Forester of Oregon, who is now petitioner Doug Decker). The suit alleged that the defendants caused discharges of channeled stormwater runoff into two waterways — the South Fork Trask River and the Little South Fork Kilchis River. The defendants had not obtained NPDES permits, and so, the suit alleged, they had violated the Act. The District Court dismissed the action for failure to state a claim. It concluded that NPDES permits were not required because the ditches, culverts, and channels were not point sources of pollution under the Act and the Silvicultural Rule. The Court of Appeals for the Ninth Circuit reversed. Northwest Environmental Defense Center v. Brown, 640 F. 3d 1063 (2011). It relied upon three principal propositions. First, it held that the District Court had subject-matter jurisdiction under §1365 notwithstanding a different provision of the Act, 33 U. S. C. §1369(b)(1), limiting judicial review of EPA regulations. Second, the Court of Appeals held that while the EPA's Silvicultural Rule is ambiguous on the question whether the conveyances at issue are point sources, those conveyances must be deemed point sources under the rule in order to give effect to the Act's expansive definition of the term. Third, the Court of Appeals held that because the Industrial Stormwater Rule makes cross-reference to Standard Industrial Classification 24, the discharges at issue are "associated with industrial activity" within the meaning of the regulation, despite the EPA's conclusion to the contrary. The regulation was held to be unambiguous on this point. The Court of Appeals thus ruled that the discharges were from point sources and not exempt from the NPDES permitting scheme by the Industrial Stormwater Rule. It followed that petitioners had been in violation of the Act. This Court granted certiorari. 567 U. S. ___ (2012).II Before proceeding to the merits, it is necessary to consider two jurisdictional questions.A Respondent NEDC invoked the jurisdiction of the District Court under 33 U. S. C. §1365(a), which "authorize[s] private enforcement of the provisions of [the Clean Water Act]" and its implementing regulations. Department of Energy v. Ohio, 503 U. S. 607, 613, n. 5 (1992). Petitioners, however, maintain that this suit is barred by a separate provision of the Act, §1369(b). That statute provides for "judicial review in the United States courts of appeals of various particular actions by the [EPA] Administrator, including establishment of effluent standards and issuance of permits for discharge of pollutants." Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 13-14 (1981). Where that review is available, it is the exclusive means of challenging actions covered by the statute, §1369(b)(2), and an application for review must be lodged in the court of appeals within 120 days of the Administrator's action, §1369(b)(1). The Court of Appeals was correct to rule that the exclusive jurisdiction mandate is not applicable in this suit. Section 1369(b) extends only to certain suits challenging some agency actions. It does not bar a district court from entertaining a citizen suit under §1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations. The present action is within the scope of §1365. It is a claim to enforce what is at least a permissible reading of the Silvicultural Rule. The rule is ambiguous: Its characterization of silvicultural harvesting operations "from which there is natural runoff," 40 CFR §122.27(b)(1), as a nonpoint source might be read, as petitioners contend, to apply to the channeled stormwater runoff at issue; or it might be read, as respondent NEDC urges, to apply only to runoff not collected in channels or other engineered improvements. See New Oxford American Dictionary 1167 (3d ed. 2010) (Oxford Dict.) ("natural" means "existing in or caused by nature; not made or caused by humankind"). NEDC's reading would make the channeled discharges here point-source pollution under the Act. In its view only this interpretation can be squared with the Act's broad definition of "point source." 33 U. S. C. §1362(14). On this premise, the instant suit is an effort not to challenge the Silvicultural Rule but to enforce it under a proper interpretation. It is a basic tenet that "regulations, in order to be valid, must be consistent with the statute under which they are promulgated." United States v. Larionoff, 431 U. S. 864, 873 (1977). For jurisdictional purposes, it is unnecessary to determine whether NEDC is correct in arguing that only its reading of the Silvicultural Rule is permitted under the Act. It suffices to note that NEDC urges the Court to adopt a "purposeful but permissible reading of the regulation . . . to bring it into harmony with . . . the statute." Environmental Defense v. Duke Energy Corp., 549 U. S. 561, 573 (2007). NEDC does not seek "an implicit declaration that the . . . regulations were invalid as written." Ibid. And, as a result, §1369(b) is not a jurisdictional bar to this suit.B "It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed." United States v. Juvenile Male, 564 U. S. ___, ___ (2011) (per curiam) (slip op., at 4) (internal quotation marks omitted). This principle requires us to determine whether the EPA's recent amendment to the Industrial Stormwater Rule makes the cases moot. In a supplemental brief filed after oral argument, petitioner Decker, joined by the United States as amicus curiae, takes the position that the recent amendment makes these cases moot in relevant part. See Supp. Brief for Petitioners in No. 11-338, pp. 4-6; Supp. Brief for United States as Amicus Curiae 4-8. That conclusion is incorrect. "A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party." Knox v. Service Employees Int'l, 567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation marks omitted). Here, despite the recent amendment, a live controversy continues to exist regarding whether petitioners may be held liable for unlawful discharges under the earlier version of the Industrial Stormwater Rule. Respondent NEDC continues to press its claim that petitioners' discharges are unlawful under both the amended regulation and the earlier version. See Supp. Brief for Respondent 3-13. The instant cases provide no occasion to interpret the amended regulation. " '[W]e are a court of review, not of first view.' " Arkansas Game and Fish Comm'n v. United States, ante, at 13 (quoting Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)). The parties, however, have litigated the suit extensively based on the earlier version of the Industrial Stormwater Rule; and that version governed petitioners' past discharges, which might be the basis for the imposition of penalties even if, in the future, those types of discharges will not require a permit. If the Court of Appeals is correct that petitioners were obligated to secure NPDES permits before discharging channeled stormwater runoff, the District Court might order some remedy for their past violations. The Act contemplates civil penalties of up to $25,000 per day, 33 U. S. C. §1319(d), as well as attorney's fees for prevailing parties, §1365(d). NEDC, in addition, requests injunctive relief for both past and ongoing violations, in part in the form of an order that petitioners incur certain environmental-remediation costs to alleviate harms attributable to their past discharges. Under these circumstances, the cases remain live and justiciable, for the possibility of some remedy for a proven past violation is real and not remote. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 64-65 (1987). The District Court, it is true, might rule that NEDC's arguments lack merit, or that the relief it seeks is not warranted on the facts of these cases. That possibility, however, does not make the cases moot. "There may be jurisdiction and yet an absence of merits." General Investment Co. v. New York Central R. Co., 271 U. S. 228, 230 (1926).III The substantive question of the necessity for an NPDES permit under the earlier rule now must be addressed. Under the Act, petitioners were required to secure NPDES permits for the discharges of channeled stormwater runoff only if the discharges were "associated with industrial activity," 33 U. S. C. §1342(p)(2)(B), as that statutory term is defined in the preamendment version of the Industrial Stormwater Rule, 40 CFR §122.26(b)(14) (2006). Otherwise, the discharges fall within the Act's general exemption of "discharges composed entirely of stormwater" from the NPDES permitting scheme. 33 U. S. C. §1342(p)(1). NEDC first contends that the statutory term "associated with industrial activity" unambiguously covers discharges of channeled stormwater runoff from logging roads. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). That view, however, overlooks the multiple definitions of the terms "industrial" and "industry." These words can refer to business activity in general, yet so too can they be limited to "economic activity concerned with the processing of raw materials and manufacture of goods in factories." Oxford Dict. 887. The latter definition does not necessarily encompass outdoor timber harvesting. The statute does not foreclose more specific definition by the agency, since it provides no further detail as to its intended scope. Somewhat more plausible is NEDC's claim that the preamendment version of the Industrial Stormwater Rule unambiguously required a permit for the discharges at issue. NEDC reasons that under the rule, "[f]or the categories of industries identified in this section," NPDES permits are required for, among other things, "storm water discharges from . . . immediate access roads . . . used or traveled by carriers of raw materials." 40 CFR §122.26(b)(14) (2006). Yet this raises the question whether logging is a "categor[y] of industr[y]" identified by the section. The regulation goes on to identify a list of "categories of facilities" that "are considered to be engaging in 'industrial activity' for purposes" of the Industrial Stormwater Rule. Ibid. In the earlier version of the regulation, this list included "[f]acilities classified as Standard Industrial Classificatio[n] 24," which encompasses "Logging." Ibid. See also supra, at 4-5. Hence, NEDC asserts, logging is among the categories of industries for which "storm water discharges from . . . immediate access roads . . . used or traveled by carriers of raw materials" required NPDES permits under the earlier version of the Industrial Stormwater Rule. §122.26(b)(14). NEDC further notes, in support of its reading of the regulation, that modern logging is a large-scale, highly mechanized enterprise, using sophisticated harvesting machines weighing up to 20 tons. See Brief for Respondent 4-5. The EPA takes a different view. It concludes that the earlier regulation invoked Standard Industrial Classification 24 " 'to regulate traditional industrial sources such as sawmills.' " Brief for United States as Amicus Curiae 24-25. It points to the regulation's reference to "facilities" and the classification's reference to "establishments," which suggest industrial sites more fixed and permanent than outdoor timber-harvesting operations. Ibid. See also 55 Fed. Reg. 47990, 48008 (1990). This reading is reinforced by the Industrial Stormwater Rule's definition of discharges associated with industrial activity as discharges "from any conveyance that is used for collecting and conveying storm water and that is directly related to manufacturing, processing or raw materials storage areas at an industrial plant." 40 CFR §122.26(b)(14) (2006). This language lends support to the EPA's claim that the regulation does not cover temporary, outdoor logging installations. It was reasonable for the agency to conclude that the conveyances at issue are "directly related" only to the harvesting of raw materials, rather than to "manufacturing," "processing," or "raw materials storage areas." See Oxford Dict. 1066 (manufacturing is "mak[ing] (something) on a large scale using machinery"); id., at 1392 (processing is "perform[ing] a series of mechanical or chemical operations on (something) in order to change or preserve it"). In addition, even if logging as a general matter is a type of economic activity within the regulation's scope, a reasonable interpretation of the regulation could still require the discharges to be related in a direct way to operations "at an industrial plant" in order to be subject to NPDES permitting. NEDC resists this conclusion, noting that elsewhere in the Industrial Stormwater Rule the EPA has required NPDES permits for stormwater discharges associated with other types of outdoor economic activity. See §122.26(b)(14)(iii) (mining); §122.26(b)(14)(v) (landfills receiving industrial waste); §122.26(b)(14)(x) (large construction sites). The EPA reasonably could conclude, however, that these types of activities tend to be more fixed and permanent than timber-harvesting operations are and have a closer connection to traditional industrial sites. In light of the language of the regulation just discussed, moreover, the inclusion of these types of economic activity in the Industrial Stormwater Rule need not be read to mandate that all stormwater discharges related to these activities fall within the rule, just as the inclusion of logging need not be read to extend to all discharges from logging sites. The regulation's reach may be limited by the requirement that the discharges be "directly related to manufacturing, processing or raw materials storage areas at an industrial plant." §122.26(b)(14). It is well established that an agency's interpretation need not be the only possible reading of a regulation — or even the best one — to prevail. When an agency interprets its own regulation, the Court, as a general rule, defers to it "unless that interpretation is 'plainly erroneous or inconsistent with the regulation.' " Chase Bank USA, N. A. v. McCoy, 562 U. S. ___, ___ (2011) (slip op., at 12) (quoting Auer, 519 U. S., at 461). The EPA's interpretation is a permissible one. Taken together, the regulation's references to "facilities," "establishments," "manufacturing," "processing," and an "industrial plant" leave open the rational interpretation that the regulation extends only to traditional industrial buildings such as factories and associated sites, as well as other relatively fixed facilities. There is another reason to accord Auer deference to the EPA's interpretation: there is no indication that its current view is a change from prior practice or a post hoc justification adopted in response to litigation. See Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10). The opposite is the case. The agency has been consistent in its view that the types of discharges at issue here do not require NPDES permits. The EPA's decision exists against a background of state regulation with respect to stormwater runoff from logging roads. The State of Oregon has made an extensive effort to develop a comprehensive set of best practices to manage stormwater runoff from logging roads. These practices include rules mandating filtration of stormwater runoff before it enters rivers and streams, Ore. Admin. Rule 629-625-0330(4) (2012); requiring logging companies to construct roads using surfacing that minimizes the sediment in runoff, Rule 629-625-0700(2); and obligating firms to cease operations where such efforts fail to prevent visible increases in water turbidity, Rule 629-625-0700(3). Oregon has invested substantial time and money in establishing these practices. In addition, the development, siting, maintenance, and regulation of roads — and in particular of state forest roads — are areas in which Oregon has considerable expertise. In exercising the broad discretion the Clean Water Act gives the EPA in the realm of stormwater runoff, the agency could reasonably have concluded that further federal regulation in this area would be duplicative or counterproductive. Indeed, Congress has given express instructions to the EPA to work "in consultation with State and local officials" to alleviate stormwater pollution by developing the precise kind of best management practices Oregon has established here. 33 U. S. C. §1342(p)(6).* * * The preamendment version of the Industrial Stormwater Rule, as permissibly construed by the agency, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. As a result, there is no need to reach petitioners' alternative argument that the conveyances in question are not "pipe[s], ditch[es], channel[s], tunnel[s], conduit[s]," or any other type of point source within the Act's definition of the term. §1362(14). For the reasons stated, the judgment of the Court of Appeals is reversed, and the cases are remanded for proceedings consistent with this opinion.It is so ordered. Justice Breyer took no part in the consideration or decision of these cases.Roberts, C. J., concurring 568 U. S. ____ (2013)Nos. 11-338 and 11-347DOUG DECKER, in his official capacity as OREGON STATE FORESTER, et al., PETITIONERS 11-338 v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER GEORGIA-PACIFIC WEST, INC., et al., PETITIONERS 11-347 v. NORTHWEST ENVIRONMENTAL DEFENSE CENTERon writs of certiorari to the united states court of appeals for the ninth circuit[March 20, 2013] Chief Justice Roberts, with whom Justice Alito joins, concurring. The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be ap-propriate to reconsider that principle in an appropriate case. But this is not that case. Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. See Brief for Respondent 42, n. 12. Petitioners said don't do it, again in a footnote. See Reply Brief for Petitioners in No. 11-338, p. 4, n. 1; see also Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 223-224 (1997) (declining to decide question that received only "scant argumentation"). Out of 22 amicus briefs, only two — filed by dueling groups of law professors — addressed the issue on the merits. See Brief for Law Professors as Amici Curiae on the Propriety of Administrative Deference in Support of Respondent; Brief for Law Professors as Amici Curiae in Support of Petitioners; see also FTC v. Phoebe Putney Health System, Inc., 568 U. S. ___, ___, n. 4 (2013) (slip op., at 7, n. 4) (declining to consider argument raised only by amicus). The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue. I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.Opinion of Scalia, J. 568 U. S. ____ (2013)Nos. 11-338 and 11-347DOUG DECKER, in his official capacity as OREGON STATE FORESTER, et al., PETITIONERS 11-338 v. NORTHWEST ENVIRONMENTAL DEFENSE CENTER GEORGIA-PACIFIC WEST, INC., et al., PETITIONERS 11-347 v. NORTHWEST ENVIRONMENTAL DEFENSE CENTERon writs of certiorari to the united states court of appeals for the ninth circuit[March 20, 2013] Justice Scalia, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion; I agree that these cases are not moot and that the District Court had jurisdiction. I do not join Part III. The Court there gives effect to a reading of EPA's regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, moreover, even though the agency has vividly illustrated that it can write a rule saying precisely what it means — by doing just that while these cases were being briefed. Enough is enough.I For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of "defer[ring] to an agency's interpretation of its own regulations." Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. ___, ___ (2011) (Scalia, J., concurring) (slip op., at 1). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945); Auer v. Robbins, 519 U. S. 452 (1997). Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency's interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court's deference to the agency makes the difference (note the Court's defensive insistence that the agency's interpretation need not be "the best one," ante, at 14). And respondent has asked us, if necessary, to " 'reconsider Auer.' " I believe that it is time to do so. See Brief for Respondent 42, n. 12; see also Brief for Law Professors on the Propriety of Administrative Deference as Amici Curiae. This is especially true because the circumstances of these cases illustrate Auer's flaws in a particularly vivid way. The canonical formulation of Auer deference is that we will enforce an agency's interpretation of its own rules unless that interpretation is "plainly erroneous or inconsistent with the regulation." Seminole Rock, supra, at 414. But of course whenever the agency's interpretation of the regulation is different from the fairest reading, it is in that sense "inconsistent" with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The agency's interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading — within the scope of the ambiguity that the regulation contains. Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever — just the ipse dixit that "the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." 325 U. S., at 414. Our later cases provide two principal explanations, neither of which has much to be said for it. See generally Stephenson & Pogoriler, Seminole Rock's Domain, 79 Geo. Wash. L. Rev. 1449, 1454-1458 (2011). First, some cases say that the agency, as the drafter of the rule, will have some special insight into its intent when enacting it. E.g., Martin v. Occupational Safety and Health Review Comm'n, 499 U. S. 144, 150-153 (1991). The implied premise of this argument — that what we are looking for is the agency's intent in adopting the rule — is false. There is true of regulations what is true of statutes. As Justice Holmes put it: "[w]e do not inquire what the legislature meant; we ask only what the statute means." The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). Whether governing rules are made by the national legislature or an administrative agency, we are bound by what they say, not by the unexpressed intention of those who made them. The other rationale our cases provide is that the agency possesses special expertise in administering its " 'complex and highly technical regulatory program.' " See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 512 (1994). That is true enough, and it leads to the conclusion that agencies and not courts should make regulations. But it has nothing to do with who should interpret regulations — unless one believes that the purpose of interpretation is to make the regulatory program work in a fashion that the current leadership of the agency deems effective. Making regulatory programs effective is the purpose of rulemaking, in which the agency uses its "special expertise" to formulate the best rule. But the purpose of interpretation is to determine the fair meaning of the rule — to "say what the law is," Marbury v. Madison, 1 Cranch 137, 177 (1803). Not to make policy, but to determine what policy has been made and promulgated by the agency, to which the public owes obedience. Indeed, since the leadership of agencies (and hence the policy preferences of agencies) changes with Presidential administrations, an agency head can only be sure that the application of his "special expertise" to the issue addressed by a regulation will be given effect if we adhere to predictable principles of textual interpretation rather than defer to the "special expertise" of his successors. If we take agency enactments as written, the Executive has a stable background against which to write its rules and achieve the policy ends it thinks best. Another conceivable justification for Auer deference, though not one that is to be found in our cases, is this: If it is reasonable to defer to agencies regarding the meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori reasonable to defer to them regarding the meaning of regulations that they themselves crafted. To give an agency less control over the meaning of its own regulations than it has over the meaning of a congressionally enacted statute seems quite odd. But it is not odd at all. The theory of Chevron (take it or leave it) is that when Congress gives an agency authority to administer a statute, including authority to issue interpretive regulations, it implicitly accords the agency a degree of discretion, which the courts must respect, regarding the meaning of the statute. See Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740-741 (1996). While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers — that the power to write a law and the power to interpret it cannot rest in the same hands. "When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151-152 (O. Piest ed., T. Nugent transl. 1949). Congress cannot enlarge its own power through Chevron — whatever it leaves vague in the statute will be worked out by someone else. Chevron represents a presumption about who, as between the Executive and the Judiciary, that someone else will be. (The Executive, by the way — the competing political branch — is the less congenial repository of the power as far as Congress is concerned.) So Congress's incentive is to speak as clearly as possible on the matters it regards as important. But when an agency interprets its own rules — that is something else. Then the power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a "flexibility" that will enable "clarification" with retroactive effect. "It is perfectly understandable" for an agency to "issue vague regulations" if doing so will "maximiz[e] agency power." Thomas Jefferson Univ., supra, at 525 (Thomas, J., dissenting). Combining the power to prescribe with the power to interpret is not a new evil: Blackstone condemned the practice of resolving doubts about "the construction of the Roman laws" by "stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it." 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has "agency in passing bad laws" might operate in the "same spirit" in their interpretation. The Federalist No. 81, pp. 543-544 (J. Cooke ed. 1961). Auer deference encourages agencies to be "vague in framing regulations, with the plan of issuing 'interpretations' to create the intended new law without observance of notice and comment procedures." Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 Admin. L. J. Am. U. 1, 11-12 (1996). Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. See Talk America, 564 U. S., at ___ (Scalia, J., concurring) (slip op., at 2-3); Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). It is true enough that Auer deference has the same beneficial pragmatic effect as Chevron deference: The country need not endure the uncertainty produced by divergent views of numerous district courts and courts of appeals as to what is the fairest reading of the regulation, until a definitive answer is finally provided, years later, by this Court. The agency's view can be relied upon, unless it is, so to speak, beyond the pale. But the duration of the uncertainty produced by a vague regulation need not be as long as the uncertainty produced by a vague statute. For as soon as an interpretation uncongenial to the agency is pronounced by a district court, the agency can begin the process of amending the regulation to make its meaning entirely clear. The circumstances of this case demonstrate the point. While these cases were being briefed before us, EPA issued a rule designed to respond to the Court of Appeals judgment we are reviewing. See 77 Fed. Reg. 72974 (2012) (to be codified in 40 CFR pt. 122, sub pt. B). It did so (by the standards of such things) relatively quickly: The decision below was handed down in May 2011, and in December 2012 the EPA published an amended rule setting forth in unmistakable terms the position it argues here. And there is another respect in which a lack of Chevron-type deference has less severe pragmatic consequences for rules than for statutes. In many cases, when an agency believes that its rule permits conduct that the text arguably forbids, it can simply exercise its discretion not to prosecute. That is not possible, of course, when, as here, a party harmed by the violation has standing to compel enforcement. In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.II I would therefore resolve these cases by using the familiar tools of textual interpretation to decide: Is what the petitioners did here proscribed by the fairest reading of the regulations? What they did was to channel stormwater runoff from logging roads without a permit. To decide whether that was permissible we must answer one, and possibly two, questions: First, was the stormwater discharged from a "point source"? If not, no permit was required. But if so, we face the second question: Were the stormwater discharges exempt from the permit requirement because they were not "associated with industrial activity"? The fairest reading of the statute and regulations is that these discharges were from point sources, and were associated with industrial activity.A The Clean Water Act generally prohibits discharging pollution without a permit from what it calls a "point source." 33 U. S. C. §1311(a). A "point source" is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit," and several other things. §1362(14). The stormwater here was discharged from logging roads through a series of pipes, ditches, and channels — all items expressly named in the definition. EPA argues that the Silvicultural Rule, 40 CFR §122.27(b)(1) (2006), excludes from the definition of "[s]ilvicultural point source" "harvesting operations . . . from which there is natural runoff." This is relevant, says the agency, because that rule specifies that only "[s]ilvicultural point sources, as defined in this section," are "point sources subject to the . . . permit program." §122.27(a). In EPA's view, the stormwater here is "natural runoff." But are stormwater discharges "natural runoff" when they are channeled through manmade pipes and ditches, and carry with them manmade pollutants from manmade forest roads? It is not obvious that this is so — as the agency agrees. See Brief for United States as Amicus Curiae 19 (the rule's "reference to 'natural runoff' associated with logging roads neither clearly encompasses nor clearly excludes the sort of channeled runoff that is at issue in this case"). In my view, giving the term the agency's interpretation would contradict the statute's definition of "point source," which explicitly includes any "pipe, ditch, channel, tunnel, [and] conduit." Applying the interpretive presumption of validity — the canon that we are to "prefe[r] the meaning that preserves to the meaning that destroys," Panama Refining Co. v. Ryan, 293 U. S. 388, 439 (1935) (Cardozo, J., dissenting)--I would hold that the regulation's exclusion of "natural runoff" does not reach the situation here. The stormwater discharges came from point sources, because they flowed out of artificial "pipe[s]," "ditch[es]," and "channel[s]," 33 U. S. C. §1362(14), and were thus not "natural runoff" from a logging operation, 40 CFR §122.27(b)(1) (emphasis added).B Many point-source stormwater discharges are nonetheless exempt from the usual permitting requirement. See 33 U. S. C. §1342(p). This exemption, however, does not reach discharges "associated with industrial activity." Ibid. EPA has enacted a rule defining what it means for stormwater discharges to be "associated with" industrial activity, and what activities count as "industrial." 40 CFR §122.26(b)(14). The regulation sets out eleven "categories of industries"; as to those industries, discharges are "associated with industrial activity" if they come from sites used for "transportation" of "any raw material." Ibid. The forest roads at issue here are used to transport raw material (logs); the only question is whether logging is a "categor[y] of industr[y]" enumerated in the definition. It is: The second of the listed "categories of facilities" is "[f]acilities classified as Standard Industrial Classifications 24 (except 2434)." §122.26(b)(14)(ii). Opening one's hymnal to Standard Industrial Classification 24 ("Lumber and Wood Products, Except Furniture"), one finds that the first industry group listed, No. 2411, is "Logging"--defined as "[e]stablishments primarily engaged in cutting timber." 2 App. 64. (As if that were not clear enough, an illustrative product of this industry is helpfully listed: "Logs.") That, I would think, is that. EPA disagrees, and the Court gives the agency's position Auer deference, but that reading is certainly not the most natural one. The Court relies heavily on the fact that the definition of "[s]torm water discharge associated with industrial activity" requires that the discharge be "directly related to manufacturing, processing or raw materials storage areas at an industrial plant," §122.26(b)(14). The crucial question this definition presents is whether the concluding phrase "at an industrial plant" limits only the last noun phrase ("raw materials storage areas") or also the two preceding nouns ("manufacturing" and "processing"). The canon of interpretation known as the rule of the last antecedent states that "a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U. S. 20, 26 (2003). If a statute provides that "it shall be unlawful to possess a grenade launcher, a fully-automatic weapon, or a shotgun with a barrel shorter than 12 inches," that does not mean that a grenade launcher with a barrel longer than 12 inches is legal. Application of the canon would mean that "at an industrial plant" modifies only "raw materials storage areas," and therefore that "manufacturing" and "processing" anywhere, including in the forest, would be "associated with industrial activity." (Standard Industrial Classification 24 categorizes logging as a manufacturing business, and these discharges are therefore "directly related to manufacturing.") Like all canons of interpretation, the rule of the last antecedent can be overcome by textual indication of contrary meaning. But that does not exist here. To the contrary, the enumerated categories of industries to which the term "industrial activity" applies reinforce the proposition that "at an industrial plant" does not modify "manufacturing" or "processing." The term includes (in addition to logging) "active or inactive mining operations," §122.26(b)(14)(iii); "[l]andfills" and "open dumps," §122.26(b)(14)(v); "automobile junkyards," §122.26(b)(14)(vi); and "[c]onstruction activity including clearing, grading and excavation," §122.26(b)(14)(x). Those industries and activities (while related to manufacturing and processing) virtually never take place at anything like what one might describe as a "plant." The rule of the last antecedent is therefore confirmed as the correct guide to meaning here: "at an industrial plant" limits only "raw materials storage areas." EPA also insists, Brief for United States as Amicus Curiae 24, that the regulation reaches only " 'traditional' " sources of industrial stormwater, such as sawmills. But Standard Industrial Classification 24 has a specific subcategory (No. 242) that is "Sawmills and Planing Mills." 2 App. 64. The rule is not so limited, reaching by its terms "Standard Industrial Classificatio[n] 24 (except 2434)." §122.26(b)(14)(ii). The explicit carving-out of No. 2434 is telling: Why EPA chose to exclude "establishments primarily engaged in manufacturing wood kitchen cabinet and wood bathroom vanities" from the definition of industrial stormwater, I do not know — but the picayune nature of the exclusion gives lie to the idea that the rule's scope ought to be decided by a rough sense of its gestalt. If EPA had meant to reach only sawmills, it quite obviously knew how to do so. Finally, the Court believes that Standard Industrial Classification 24's reference to "establishments" "suggest[s] industrial sites more fixed and permanent than outdoor timber-harvesting operations." Ante, at 13. Not so. The Standard Industrial Classification uses "establishments" throughout to refer to business entities in general; for example, Classification 2411 refers to "[e]stablishments primarily engaged in cutting timber," which includes "producing wood chips in the field." 2 App. 64. I cannot imagine what kind of "fixed and permanent" industrial site the Court and EPA imagine will be "producing wood chips in the field." And the Court's final point, ante, at 13 — that the regulatory definition of "industrial activity" uses the word "facilities"--cuts the other way: EPA regulations define "facility" to include "any . . . 'point source.' " 40 CFR §122.2; see, e.g., §122.26(b)(14)(iii) (referring to mines as "facilities"). The agency also assures us that its intent (Brief for United States as Amicus Curiae 25) was to reach a more limited subset of logging activities, an intent that it believes can essentially float free from the text of the relevant rule. In the end, this is the real meat of the matter: EPA states that it simply did not mean to require permits for the discharges at issue here. And the Court is willing to credit that intent, even given what I think has been amply demonstrated to be a contrary text.* * * Because the fairest reading of the agency's rules proscribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.FOOTNOTESFootnote 1 Together with No. 11-347, Georgia-Pacific West, Inc., et al. v. Northwest Environmental Defense Center, also on certiorari to the same court. |
7 | As employees of respondent Santa Fe Terminal Services, Inc. (SFTS), a wholly owned subsidiary of respondent The Atchison, Topeka and Santa Fe Railway Co. (ATSF), the individual petitioners were entitled, among other things, to pension, health, and welfare benefits under SFTS Teamsters Union collective bargaining agreements. The resulting benefit plans were subject to the Employee Retirement Income Security Act of 1974 (ERISA). Ultimately ATSF bid the work being done by petitioners to respondent In Terminal Services (ITS) and terminated SFTS employees who declined to continue employment with ITS. The ITS Teamsters pension and welfare benefit plans were less generous than the SFTS Teamsters plans. Petitioners filed suit, alleging that the terminations violated §510 of ERISA, which makes it unlawful to "discharge ... a [plan] participant ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." (Emphasis added.) The District Court granted respondents' motion to dismiss. Concluding that §510 only prohibits interference with the attainment of rights that are capable of "vesting, " the Court of Appeals reinstated petitioners' claim for interference with pension benefits, but affirmed the dismissal of their claim for interference with welfare benefits, which do not vest.Held: The Court of Appeals' holding that §510 bars interference only with vested rights is contradicted by §510's plain language, whose use of the word "plan" all but forecloses that position. ERISA defines "plan" to include an "employee welfare benefit plan," 29 U.S.C. § 1002(3), even though welfare plans are exempted from its stringentvesting requirements, see §1051(1). Had Congress intended to confine §510's protection to "vested" rights, it could have easily substituted "pension plan" for "plan" or "nonforfeitable right" for "any right." The flexibility an employer enjoys to unilaterally amend or eliminate its welfare benefit plan, see Curtiss Wright Corp. v. Schoonejongen, , does not justify a departure from §510's plain language. Such flexibility helps employers avoid the complicated administration and increased cost of vested plans, and encourages them to offer more generous benefits at the outset, since they can reduce benefits should economic conditions sour. Section 510 counterbalances this flexibility by requiring employers to follow a plan's formal amendment process, thus ensuring that employers do not "circumvent the provision of promised benefits." Ingersoll Rand Co. v. McClendon, . Any tension that might exist between an employer's amendment power and a participant's §510 rights is the product of a careful balance of competing interests, not the type of "absurd or glaringly unjust" result, Ingalls Shipbuilding, Inc. v. Director, Office of Workers' Compensation Programs___, ___, that would warrant departure from §510's plain language. On remand, the Court of Appeals should have the first opportunity to evaluate respondents' remaining arguments, including their argument that petitioners were eligible to receive welfare benefits under the SFTS Teamsters plan at the time they were discharged and, thus, cannot state a §510 claim. Pp. 4-7.80 F. 3d 348, vacated and remanded.O'Connor, J., delivered the opinion for a unanimous Court.NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme CourtNo. 96-491INTER MODAL RAIL EMPLOYEES ASSOCIATION, et al., PETITIONERS v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al.on writ of certiorari to the united states court of appeals for the ninth circuit[May 12, 1997]Justice O'Connor delivered the opinion of the Court.Section 510 of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, makes it unlawful to "discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary [of an employee benefit plan] ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140. The Court of Appeals for the Ninth Circuit held that §510 only prohibits interference with the attainment of rights that are capable of "vesting," as that term is defined in ERISA. We disagree.The individual petitioners are former employees of respondent Santa Fe Terminal Services, Inc. (SFTS), a wholly owned subsidiary of respondent The Atchison, Topeka and Santa Fe Railway Co. (ATSF), which was responsible for transferring cargo between railcars and trucks at ATSF's Hobart Yard in Los Angeles, California. While petitioners were employed by SFTS, they were entitled to retirement benefits under the Railroad Retirement Act of 1974, 88 Stat. 1312, as amended, 45 U.S.C. § 231 et seq., and to pension, health, andwelfare benefits under collective bargaining agreements involving SFTS and the Teamsters Union. SFTS provided its workers with pension, health, and welfare benefits through employee benefit plans subject to ERISA's comprehensive regulations.In January 1990, ATSF entered into a formal "Service Agreement" with SFTS to have SFTS do the same "inter modal" work it had done at the Hobart Yard for the previous 15 years without a contract. Seven weeks later, ATSF exercised its right to terminate the newly formed Agreement and opened up the Hobart Yard work for competitive bidding. Respondent In Terminal Services (ITS) was the successful bidder, and SFTS employees who declined to continue employment with ITS were terminated. ITS, unlike SFTS, was not obligated to make contributions to the Railroad Retirement Account under the Railroad Retirement Act. ITS also provided fewer pension and welfare benefits under its collective bargaining agreement with the Teamsters Union than had SFTS. Workers who continued their employment with ITS "lost their Railroad Retirement Act benefits" and "suffered a substantial reduction in Teamsters benefits." 80 F. 3d 348, 350 (CA9 1996) (per curiam).Petitioners sued respondents SFTS, ATSF, and ITS in the United States District Court for the Central District of California, alleging that respondents had violated §510 of ERISA by "discharg[ing]" petitioners "for the purpose of interfering with the attainment of ... right[s] to which" they would have "become entitled" under the ERISA pension and welfare plans adopted pursuant to the SFTS Teamsters collective bargaining agreement. See App. to Pet. for Cert. 29a, Complaint, ¶33. Had SFTS remained their employer, petitioners contended, they would have been entitled to assert claims for benefits under the SFTS Teamsters benefits plans, at least until the collective bargaining agreementthat gave rise to those plans expired. The substitution of ITS for SFTS, however, precluded them from asserting those claims and relegated them to asserting claims under the less generous ITS Teamsters benefits plans. According to petitioners, the substitution "interfer[ed] with the attainment" of their "right" to assert those claims and violated §510. Respondents moved to dismiss these §510 claims, and the District Court granted the motion.The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. 80 F. 3d 348 (1996). The court reinstated petitioners' claim under §510 for interference with their pension benefits, concluding that §510 " `protects plan participants from termination motivated by an employer's desire to prevent a pension from vesting.' " Id., at 350-351 (quoting Ingersoll Rand Co. v. McClendon, ). But the Court of Appeals affirmed the dismissal of petitioners' claim for interference with their welfare benefits. "Unlike pension benefits," the Court of Appeals observed, "welfare benefits do not vest." 80 F. 3d, at 351. As a result, the Court of Appeals noted, "employers remain free to unilaterally amend or eliminate [welfare] plans," and "employees have no present `right' to future, anticipated welfare benefits.' " Ibid. (emphasis and internal quotation marks omitted). Because the "existence of a present `right' is [a] prerequisite to section 510 relief," the Court of Appeals concluded that §510 did not state a cause of action for interference with welfare benefits. Ibid. We granted certiorari to resolve a conflict among the Courts of Appeals on this issue, * ___ (1996), and now vacate the decision below and remand.The Court of Appeals' holding that §510 bars interference only with vested rights is contradicted by the plain language of §510. As noted above, that section makes it unlawful to "discharge ... a [plan] participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U.S.C. § 1140 (emphasis added). ERISA defines a "plan" to include both "an employee welfare benefit plan [and] an employee pension benefit plan," §1002(3), and specifically exempts "employee welfare benefit plan[s]" from its stringent vesting requirements, see §1051(1). Because a "plan" includes an "employee welfare benefit plan," and because welfare plans offer benefits that do not "vest" (at least insofar as ERISA is concerned), Congress' use of the word "plan" in §510 all but forecloses the argument that §510's interference clause applies only to "vested" rights. Had Congress intended to confine §510's protection to "vested" rights, it could have easily substituted the term "pension plan," see 29 U.S.C. § 1002(2), for "plan," or the term "nonforfeitable" right, see §1002(19), for "any right." But §510 draws no distinction between those rights that "vest" under ERISA and those that do not.The right that an employer or plan sponsor may enjoy in some circumstances to unilaterally amend or eliminate its welfare benefit plan does not, as the Court of Appeals apparently thought, justify a departure from§510's plain language. It is true that ERISA itself "does not regulate the substantive content of welfare benefit plans." Metropolitan Life Ins. Co. v. Massachusetts, . Thus, unless an employer contractually cedes its freedom, see, e.g., Adcox v. Teledyne, Inc., 21 F. 3d 1381, 1389 (CA6), cert. denied, , it is "generally free under ERISA, for any reason at any time, to adopt, modify, or terminate [its] welfare pla[n]." Curtiss Wright Corp. v. Schoonejongen, .The flexibility an employer enjoys to amend or eliminate its welfare plan is not an accident; Congress recognized that "requir[ing] the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans." S. Rep. No. 93-383, p. 51 (1973). Giving employers this flexibility also encourages them to offer more generous benefits at the outset, since they are free to reduce benefits should economic conditions sour. If employers were locked into the plans they initially offered, "they would err initially on the side of omission." Heath v. Variety Corp., 256, 71 F. 3d 258 (CA 7, 1995). Section 510 counterbalances this flexibility by ensuring that employers do not "circumvent the provision of promised benefits." Ingersoll Rand Co., 498 U.S., at 143 (citing S. Rep. No. 93-127, pp. 35-36 (1973); H. R. Rep. No. 93-533, p. 17 (1973)). In short, "§510 helps to make promises credible." Heath, supra, at 258. An employer may, of course, retain the unfettered right to alter its promises, but to do so it must follow the formal procedures set forth in the plan. See 29 U.S.C. § 1102(b)(3) (requiring plan to "provide a procedure for amending such plan"); Schoonejongen, supra, at 78 (observing that the "cognizable claim [under ERISA] is that the company did not [amend its welfare benefit plan] in a permissible manner"). Adherence to these formal procedures "increases the likelihood that proposed plan amendments, which are fairly serious events, are recognized as such and given the special consideration they deserve." Schoonejongen, supra, at 82. The formal amendment process would be undermined if §510 did not apply because employers could "informally" amend their plans one participant at a time. Thus, the power to amend or abolish a welfare benefit plan does not include the power to "discharge, fine, suspend, expel, discipline, or discriminate against" the plan's participants and beneficiaries "for the purpose of interfering with [their] attainment of ... right[s] ... under the plan." To be sure, when an employer acts without this purpose, as could be the case when making fundamental business decisions, such actions are not barred by §510. But in the case where an employer acts with a purpose that triggers the protection of §510, any tension that might exist between an employer's power to amend the plan and a participant's rights under §510 is the product of a careful balance of competing interests, and is most surely not the type of "absurd or glaringly unjust" result, Ingalls Shipbuilding Inc. v. Director, Office of Workers' Compensation Programs___, ___ (1997) (Slip op., at 12), that would warrant departure from the plain language of §510.Respondents argue that the Court of Appeals' decision must nevertheless be affirmed because §510, when applied to benefits that do not "vest," only protects an employee's right to cross the "threshold of eligibility" for welfare benefits. See Brief for Respondent Atchison, Topeka & Santa Fe Railway Co. et al. 18. In other words, argue respondents, an employee who is eligible to receive benefits under an ERISA welfare benefits plan has already "attain[ed]" her "right[s]" under the plan, so that any subsequent actions taken by an employer cannot, by definition, "interfer[e]" with the "attainment of ... right[s]" under the plan. According to respondents, petitioners were eligible to receive welfare benefitsunder the SFTS Teamsters plan at the time they were discharged, so they cannot state a claim under §510. The Court of Appeals' approach precluded it from evaluating this argument, and others presented to us, and we see no reason not to allow it the first opportunity to consider these matters on remand.We therefore vacate the judgment of the Court of Appeals and remand for proceedings consistent with this opinion.It is so ordered. |
7 | Rehearing Denied June 9, 1947. See . Appeals from the District Court of the United States for the Northern District of New York.[ State of New York v. United States ], 288] Mr. Parker McCollester, of New York City, for appellants State of New York and others. Mr. Henry F. Foley, of Boston, Mass., for appellants State of Maine and others. Mr. Douglas F. Smith, of Chicago, Ill., for appellants A., T. & S.F.R. Co. and others. Mr. Edward H. Miller, of Washington, D.C., for The United States. Mr. Daniel W. Knowlton, of Washington, D.C., for Interstate Commerce Commission. , 289] Mr. J. V. Norman, of Washington, D.C., for Southern States & Southern Governors' Conference. Mr. Byron M. Gary, of Topeka, Kan., for States of Arkansas, Kansas, and others. Mr. Justice DOUGLAS delivered the opinion of the Court. The orders of the Interstate Commerce Commission, which appellants seek to have set aside, resulted from two separate investigations instituted by the Commission on its own motion in 1939 to inquire into the lawfulness or unlawfulness of most of the then existing rate-making standards for interstate railroad class freight rates in the United States. One investigation related to classifica- , 290] tion1 under which commodities move by rail freight. The other related to class rates. 2 The two investigations were consolidated and were covered by one report, as the problems of classification and of class rates3 are closely interrelated. The findings of the Commission as to classifications are not directly involved here. For the orders of the Commission under attack are interim orders which affect only class rates, increasing them in some areas and decreasing them in others. But a review and summary of the Commission's findings both on classifications and , 291] on class rates are essential for an understanding of the problem. While there are three major classification territories, there are five major rate territories. 4 Official Territory, roughly speaking, lies east of the Mississippi and north of the Ohio and Potomac Rivers; it includes most of Virginia. Southern Territory lies south of Official Territory and east of the Mississippi. Western Trunk-Line Territory is located approximately between Official Territory and the Rocky Mountains. Southwestern Territory lies south of Western Trunk-Line Territory and west of the Mississippi and includes Arkansas, Texas, Oklahoma, and part of Louisiana. Mountain-Pacific Territory includes Montana and New Mexico and all territory west of the Rockies. Only Mountain-Pacific Territory is not involved in these cases. The three major classifications are Official, Southern and Western. 5 But there is great lack of uniformity in the classifications. The problem is one with which the Commission has long wrestled. 6 But prior to the present , 292] investigation its chief accomplishment in this field had been to establish classification uniformity within the separate territories. National classification uniformity was still in the main lacking. Many differences between classifications on a particular rating are matters of substance; others are matters of nomenclature. Moreover, there has been a tendency among carriers to work against the evolution of uniform classifications by making exceptions which remove commodities from the classifications for rate-making purposes. Section 1(4) of the Interstate Commerce Act as amended, 24 Stat. 379, 54 Stat. 899, 900, 49 U.S.C. 1(4), 49 U.S.C.A. 1(4), provides that it shall be the duty of common carriers to establish just and reasonable classifications applicable to through freight rates and charges. Section 1( 6) prohibits every unjust and unreasonable classification. Section 3(1), 49 U.S.C.A. 3(1), prohibits discrimination. And 15(1), 49 U.S.C.A. 15(1), empowers the Commission to prescribe just, fair, and reasonable classifications, after a finding that existing classifications are unlawful. The Commission found that the existing classifications are unlawful and will continue to be unawful unti l there is national uniformity of classification. It found that differences in the applicable classifications affect the levels of the class rates as much as or more, in some instances, than the differences in the levels of the class rate scales themselves. It found that shippers in one territory pay more than shippers in another territory on the same article because of classification differences; that territorial boundaries separating classification territories are artificial and cause serious complications; that where geographic conditions produce divergent costs, revenue requirements, or other conditions requiring rate adjustments, the adjustments should be made not in the basic classification itself but in the rate levels or by the creation of legitimate exceptions to the classification; that amongst the classifications there was no real uniformity , 293] of classification ratings although the same classification principles are applicable throughout the nation. It concluded that without such uniformity it is impossible to maintain just and reasonable relationships between class rates for competing commodities; that it is feasible for the carriers to establish a uniform classification. The Commission gave the railroads the opportunity to take the initiative in preparing the new uniform classification-an invitation which, we are advised, has been accepted. Prior to this proceeding the Commission made four major class rate investigations-one for each of the rate territories except Mountain- Pacific. 7 These established class rate structures on a regional basis, i. e. they established some degree of uniformity in class rates within each territory or subdivision of a territory. But they did not deal with interterritorial class rates by harmonizing regional rate adjustments one with the other. As a result there are separate interterritorial rate structures applicable to freight traffic moving from one territory into another. These territorial class rate structures are exceedingly complicated. There is no basic uniformity amongst them and they are computed by varying formulae. The Commission found that class rates within Southern, Southwestern and Western Trunk-Line territories, and from those territories to Official Territory, were generally much higher, article for article, than the rates within Official Territory. It found that higher class rates have impeded the development and movement of class rate , 294] freight within Southern, Southwestern and Western Trunk-Line territories and from those territories to Official Territory. It concluded that neither the comparative costs of transportation service nor variations in the consists8 and volume of traffic within the territories justified those differences in the class rates. The Commission also determined that equalization of class rates is not dependent on equalization of nonclass rates and that interterritorial rate problems can be solved only by establishing substantial uniformity in class ratings and rates. Section 1(4) and (5)(a) of the Act require rates and charges to be just and reasonable. The Commission found that the intraterritorial class rates applicable to the territories in question and the interterritorial class rates between the territories violate those provisions. Section 3(1) of the Act outlaws undue or unreasonable preferences or advantages to any region, district, or territory. Te Commissi on found that the relation between the interterritorial class rates to Official Territory from the other territories in question and the intraterritorial class rates within Official Territory results in an unreasonable preference to Official Territory as a whole, and to shippers and receivers of freight located there, in violation of 3(1). The Commission, acting pursuant to its authority under 15(1) of the Act, prescribed reasonable and nondiscriminatory class rates to cure the preference found to exist, the new rates to become applicable simultaneously with the new revised classification which, as we have noted, the Commission ordered to be established. But time will be required to formulate a uniform classification. And the Commission concluded that pending completion of that undertaking certain interim readjustments in the existing basis of class rates, based on existing , 295] classifications, could be made-readjustments which would be just and reasonable, and which would reduce to a minimum the preferences and prejudices which the Commission found to be unlawful in the existing system. It determined that the several intraterritorial freight-rate structures should be brought closer to the same level and be constructed on the same pattern or scheme. It concluded that as many differences as possible between the interterritorial rates and the intraterritorial rates should be eliminated. It accordingly ordered that existing interstate class rates9 applicable to freight traffic moving at the classification ratings within Southern, Southwestern, and Western Trunk-Line territories interterritorially between those territories, and interterritorially between each of those territories and Official Territory, be reduced 10 per cent subject to qualifications not important here. It also ordered that interstate class rates for freight traffic moving at classification ratings within Official Terriroty be increased 10 per cent, subject to qualifications not relevant to our problem. It found the new interim class rates just and reasonable. 262 I.C.C. 447, supplemental report, 264 I.C.C. 41. The new interim rates were ordered to become effective January 1, 1946. Prior to that date, New York and other northern States, appellants in No. 343, filed their petition in the District Court to set aside the orders of the Commission. A statutory three judge court was convened and a temporary injunction was issued preventing the orders from going into effect. 38 Stat. 208, 220, 28 U.S.C. 47, 28 U.S.C.A. 47. The Governors of the six New England States (three of whose successors in office have been substituted as appellants in No. 344) intervened on the side of the plaintiffs, as did most of the appellants in , 296] No. 345. The Commission and others10 intervened on the side of the United States. Appellants in No. 345, including most of the western railroads, also filed their petition in the District Court seeking substantially the same relief as appellants in No. 343. The cases were consolidated and tried together, the District Court receiving additional evidence offered by the western railroads. The court sustained the orders of the Commission in all respects, 65 F.Supp. 856, but continued the injunction pending appeal to this Court. 11 Judicial Code 210, 28 U.S.C. 47a, 28 U.S.C.A. 47a. First. The principal evil at which the Interstate Commerce Act, 49 U. S.C.A. 1 et seq., was aimed was discrimination in its various manifestations. Louisville & N.R. Co. v. United States, , 750, 300, 301. Until 1935, 3(1) of the Act prohibited discrimination only against a 'person, company, firm, corporation, or locality, or any particular description of traffic.' 24 Stat. 379, 380. The question arose whether 'locality' included a port insofar as the port was not a point of origin or destination but a gateway through which shipments were made. The Court held by a closely divided vote, and contrary to the ruling of the Commission, that it did not. Texas & Pacific R. Co. v. United States, . Thereafter Congress amended 3(1) so as to extend the prohibition against discrimination to include a 'port, port district, gateway, transit point.' 49 Stat. 607. And see Albany Port Dis- , 297] trict Commission v. Ahnapie & W.R. Co., 219 I.C.C. 151. That was in 1935. In 1940 Congress went further. By 5(b) of the Transportation Act of 1940, 54 Stat. 899, 902, 49 U.S.C.A. 3 note, known as the Ramspeck Resolution, it authorized and directed the Commission to institute an investigation into rates on commodities between points in one classification territory and points in another territory and into like rates within territories for the purpose of determining whether those rates were 'unjust and unreasonable or unlawful in any other respect in and of themselves or in their relation to each other, and to enter such orders as may be appropriate for the removal of any unlawfulness which may be found to exist * * *.'12 Congress also extended the prohibition against discriminations by adding to 3(1) the words 'region, district, territory.' 13 It is now asserted that the Commission has misunderstood its duties under these 1940 amendments. It is said that the Commission has construed this mandate of Congress to mean that identical rates, mile for mile, should be , 298] established everywhere in the country, in face of a long standing practice of rate-making (which the legislative history of the 1940 amendments shows was not intended to be changed) that allowed differences in rates which were based on differences in the length of haul, character of the terrain, density of traffic, and other elements of the cost of service. Thus it is argued that the Commission runs afoul of Ann Arbor R. Co. v. United States, , which involved the construction of a joint resolution of Congress directing the Commission to make an investigation to determine whether existing rates and charges were unjust, unreasonable, or unjustly discriminatory so as to give undue advantage 'as between the various localities and parts of the country * * *.' 43 Stat. 801, 802, 49 U.S.C.A. 55. The Commission, reling on tha t mandate, condemned certain existing rates between California and eastern points. The Court set aside the order of the Commission, holding that the joint resolution did not purport to change the existing law but left the validity of rates to be determined by that law. But the Commission in the present cases did not proceed on the assumption that the Ramspeck Resolution changed the substantive law. As we read its report, the Commission took the resolution only as a directive to investigate and correct violations of substantive law as it deemed that law broadened by the amendment to 3(1). It said:'By the amendment to the substantive antidiscrimination provisions of section 3(1) all discriminations in the form of undue or unreasonable preference or advantage, or undue or unreasonable prejudice or disadvantage, as between regions, districts, or territories, viewed as separate entities, were brought directly within the purview of the act along with all the other inhibitions previously included. We were then authorized and directed by the other provisions men- , 299] tioned to remove any such discriminations found to exist in a proper proceeding. This means that such discriminations as those mentioned which result from differences in the methods of distributing the general rate burden in the several ratemaking territories, or from any other cause, if not justified upon proper consideration of recognized elements of rate making applied in the light of the amended law are unlawful and should be corrected.' 262 I.C.C. p. 692. From this statement it is apparent that the Commission concluded that the 1940 amendment to 3(1) enlarged the scope of the section. The Commission, indeed, stated that 'it is clear that the main purpose which Congress had in mind was to bring about a greater degree of equalization, harmony, and uniformity in the different regional or territorial rate structures of the country.' Id. p. 692. And see id. pp. 688-691. But it is suggested that discriminations based on geographic factors were outlawed prior to the 1940 amendment to 3(1), as evidenced by its long standing condemnation of 'undue or unreasonable prejudice or disadvantage' to any 'locality' and, since 1935, to any 'port, port district, gateway, transit point.'14 It is, moreover, suggested that even the prohibition of discriminations against shippers was broad enough all along to ban discriminations based on the geographic location of the shippers. The contention is that without a change in the law the present orders were unwarranted; it is pointed out that the class rates now condemned had been found by the Commission itself to be just and reasonable in recent years. And it is asserted , 300] that the Commission did not take its present action on a showing of changed circumstances since those times. The conclusion, therefore, is that the present orders are not warranted by 3(1). We need not determine whether, prior to the 1940 amendment, 3(1), by its ban on unlawful discriminations against a 'locality,' would have permitted the Commission to eradicate regional discriminations in class rates. For whatever doubt may have existed in the law was removed by the 1940 amendment which made abundantly clear that Congress thought that the problem of regional discriminations had been neglected and that if any such discriminations were found to be present, they should be eradicated. 15 But, as the Commission concedes, the addition of 'region, district, territory' to 3(1) did not change the law respecting discrimination by authorizing uniform freight rates, mile for mile, without regard to differing costs of the service. ongress, b y adding those words, made plain the duty of the Commission in determining whether discriminatory practices exist to consider the interests of regions, districts, and territories, and to eliminate territorial rate differences which are not justified by differences in territorial conditions. In other words Congress did not introduce a new standard of discrimination by its amendment to 3(1); it merely made clear its purpose that regions, districts, and territories should be the beneficiaries of the law against discrimination. , 301] Second. It is argued, however, that the findings of the Commission concerning regional discriminations in class rates are not supported by substantial evidence. The great differences between territorial class rate levels are shown by the following table. It gives a comparison (in cents per 100 pounds) between the first-class rate scale within Official Territory and that within each of the other territories: Southern scale Eastern Distance Scale rate Percentage Rate of Eastern [] 50 miles 47 57 --------- 100 miles 62 79 --------- 150 miles 73 96 --------- 200 miles 80 112 --------- 300 miles 96 134 --------- 400 miles 109 156 --------- 500 miles 122 173 --------- 600 miles 135 189 --------- 700 miles 149 206 --------- 800 miles 160 222 --------- 900 miles 171 235 --------- 1,000 miles 182 249 --------- [] Average 137.7 TABLE CONTINUED [] WESTERN TRUNK-LINE SCALE Zone I Zone II Zone III Percentage Percentage Percentage Rate of Rate of Rate of Eastern Eastern Eastern 53 --------- 61 --------- 65 --------- 73 --------- 83 --------- 90 --------- 86 --------- 98 --------- 107 --------- 97 --------- 111 --------- 123 --------- 117 --------- 134 --------- 147 --------- 136 --------- 156 --------- 172 --------- 156 --------- 178 --------- 196 --------- 176 --------- 200 --------- 220 --------- 196 --------- 222 --------- 244 --------- 210 --------- 239 --------- 263 --------- 226 --------- 256 --------- 282 --------- 240 --------- 273 --------- 300 --------- --------- 129.6 --------- 144.4 --------- 159.4 These first-class intraterritorial rates are used as bases in formulating rates on other classes of freight in the respective territories. 16 The following tables compiled by Government counsel show the first- class rates for interritorial movements to Official Territory from each of the other territories as compared with intraterritorial movements for approximately equal distances within Official Territory: , 302] Disadvantage of Southern Southern v. Official Territory shipper compared with Official Territory shipper [] First class In In per From- To- Miles rates cents cent [] Nashville, Tenn. Indianapolis, Ind. 297 135 -------- -------- Indianapolis, Ind. Kent, Ohio 296 96 39 41 Knoxville, Tenn. Columbus, Ohio 395 155 -------- -------- Baltimore, Md. Warren, Ohio 392 103 52 50 Birmingham, Ala. Muncie, Ind. 536 179 -------- -------- Pittsburgh, Pa. Rockford, Ill. 538 128 51 40 Chattanooga, Tenn. Chicago, Ill. 594 187 -------- -------- Philadelphia, Pa. Toledo, Ohio 595 135 52 39 Atlanta, Ga. Chicago, Ill. 731 210 -------- -------- Danville, Ill. Washington, D. C. 733 151 59 39 Macon, Ga. Chicago, Ill. 819 223 -------- -------- Trenton, N. J. Danville, Ill. 819 163 60 37 [][] Disadvantage of Southwestern Southwestern v. Official Territory shipper compared with Official Territory shipper [] First class In In per From- To- Miles rates cents cent [] Little Rock, Ark Detroit,Mich 785 222 -------- -------- Official Territory Point Detroit, Mich 785 160 62 39 Oklahoma City, Okla Cincinnati, Ohio 882 244 ------- -------- Official Territory Point Cincinnati, Ohio 882 171 73 43 Sheveport, La Cleveland, Ohio 1,013 264 -------- -------- Offical Territory Point Cincinnati, Ohio 1,013 185 79 43 Dallas, Tex Pittsburgh, Pa 1,224 304 -------- -------- Official Territory Point Pittsburgh, Pa 1,224 207 97 47 [] , 303] [] Disadvantage of Western Western Trunk-Line v. Official Territory shipper compared with Official Territory shipper [] First class In In per From- To- Miles rates cents cent [] Des Moines,Iowa Toledo, Ohio 558 142 -------- -------- Official Territory Point Toledo, Ohio 558 118 24 20 St. Paul, Minn South Bend, Ind 491 138 -------- -------- Official Territory Pt South Bend, Ind 491 111 27 24 Lincoln, nebr Evansville, Ind 612 169 -------- -------- Official Territory Point Evansville,Ind 612 125 44 35 Denver,Colo Cleveland,Ohio 1329 289 ------- -------- Officail Territory Point Cleveland 1,329 200 89 45 [] The disadvantage to the Southern or Western shipper who attempts to market his product in Official Territory is obvious. Thus the first of these tables shows that a Nashville shipper pays 39 cents more on each 100 pounds of freight moving to indianapolis, Indiana than one who ships from Indianapolis to a point of substantially equal distance away (Kent, Ohio) in Official Territory. Similar disadvantages suffered by Southern and Western Shippers are revealed in the other comparable interritorial freight movements set forth in the tables. That disadvantage is emphasized if the effects of classification differences on rates for identical commodities are considered. A comparison of rates in cents per 100 pounds for 200 miles shows that even though shippers in the South and West have the same or lower classification ratings for identical commodities they nevertheless on the whole pay higher charges than the shippers in Official Territory for equivalent service. Thus there are in class 100 (first class) for less- than-carload lots 2092 items , 304] common to the three classifications. In Official Classification all of these move at a rate of 80 cents per 100 pounds for a haul of 200 miles. In Southern, 2076 of these items are classified 100 and move at a rate of $ 1.12. Of the remaining 17 items 5 are classified in Southern in class 85 with a rate of 95, 2 in class 70 with a rate of 78, 7 in class 55 with a rate of 62, 2 in class 45, with a rate of 50, 1 in class 40 with a rate of 45. In Western Trunk-Line Zone I, 2076 of the 2092 items are classified 100 with a rate of 97, 4 in 85 with a rate of 82, 10 in 70 with a rate of 68, 2 in 55 wit a rate of 53. In class 100 for carload lots there are 213 common items. In Official Classification all of these move at a rate of 80 cents for a haul of 200 miles. In Southern, 199 of these items are classified 100 and move at a rate of $1.12 for 200 miles. Of the remaining 14, 7 are classified in Southern in class 85 with a rate of 95, 2 in 75 with a rate of 84, 5 in 70 with a rate of 78. In Western Trunk-Line Zone I, 202 of the 213 items are classified 100 with a rate of 97, 7 in 85 with a rate of 82, 3 in 70 with a rate of 68, 1 in 55 with a rate of 53. Additional illustrations are too numerous and detailed to include in this opinion. But the ones given are representative of the rest and show how disparities in the rate levels are aggravated when the effects of classification differences on rates are considered. There is rather voluminous evidence in the record tendered to show the effect in concrete competitive situations of these class rate inequalities. The instances were in the main reviewed by the Commission. They are attacked here on various grounds-that some of them involved rates other than class rates, that others were testified to by shippers who made no complaint of class rates, that others showed shippers paying higher rates yet maintaining their competitive positions and prospering. We do not stop to , 305] analyze them or discuss them beyond saying that some of the specific instances support what is plainly to be inferred from the figures we have summarized-that class rates within Southern, Southwestern and Western Territories, and from those territories to Official Territory, are generally much higher, article for article, than the rates within Official Territory. That was the basic finding of the Commission; and it is abundantly supported by the evidence. Thus discrimination in class rates in favor of Official Territory and against the Southern, Southwestern and Western Trunk Line territories is established. But that is not the end of the matter. For 'mere discrimination does not render a rate illegal under section 3.' United States v. Illinois Central R. Co., , 192. Section 3 condemns 'any undue or unreasonable preference or advantage' and 'any undue or unreasonable prejudice or disadvantage' to any territory. And, as we have said, the 1940 amendment to 3, by its addition of 'region, district, territory,' did not change the prevailing rules respecting unlawful discrimination; it merely enlarged the reach of 3. Hence we must determine from the pre-existing law whether a discrimination against a territory is obnoxious to 3. The rule is stated in United States v. Illinois Central R. Co., supraat page 524, 44 S.Ct. at page 193, as follows:'To bring a difference in rates within the prohibition of section 3, it must be shown that the discrimination practiced is unjust when measured by the transportation standard. In other words, the difference in rates cannot be held illegal, unless it is shown that it is not justified by the cost of the respective services, by their values, or by other transportation conditions.' It is on this principle that the findings of the Commission under 3 are both defended and attacked. , 306] Third. The Commission's findings under 3(1) are first challenged on the ground that there is no finding that the corresponding class rates are actually charged to or demanded of competing shippers in the several territories. That is to say, no unlawful discrimination in favor of a shipper in Official Territory and against a shipper in Southern Territory can be said to exist unless it is shown that the southern competitor is actually required to pay the higher interterritorial class rates. It is contended that the record negatives the existence of facts which could support such a finding and that no such finding was made. Reliance is placed on two circumstances. In the first place, reference is made to the effect of classification ratins on class rates which we briefly summarized above. It is noted, for example, that the southern shipper in some instances actually pays less for the shipment of the same commodity than the shipper in Official Territory, e.g., where the Southern Classification carries the commodity in a lower class, which in turn exacts a rate less than that required of the higher classification granted by Official. It is apparent from the illustrations we have given that such is true in some cases. But that is not the dominant pattern. In the vast majority of the instances the classification ratings, like the class rate structure, work to the benefit of Official Territory and against the others. But the greater reliance is placed on the second circumstance-that only a minor portion of freight moves by class rates and of that a greater percentage moves in Official Territory than in the others. This point requires a more extended answer. The Commission, indeed, found that by reason of non-use the class rates have become obsolete and no longer serve the purposes for which they were designed. They move a relatively small amount of freight. The following table indicates the percentages of carload traffic carried at class rates within and between territories in 1942: , 307] To From[] Official Southern Southwestern Western trunk-line []Official 5.8 12.6 22.5 12.3 Southern .9 1.8 6.1 1.5 Southwestern 1.5 1.2 2.4 2.0 Western Truck Line 3.1 6.1 13.0 .6 [] In September, 1940, for example, less-than-carload ratings on about 3, 000 commodities were removed from the Southern Classification by classification exceptions. The great bulk of the freight moves on exception rates and commodity rates. 17 This trend, according to the Commission, has been the result of competitive forces. The creation of the exceptions has 'shorn the ratings in the classifications of much of their usefulness and proper function.' 262 I.C.C. p. 504. The record is replete with evidence supporting this finding of the Commission. And appellants seize on it as supporting their claim that since class rates have largely become paper rates, they are not the source of injury to shippers from the South and the West; that if the latter are prejudiced by the rate structure, the injury must flow from the exception rates and commodity rates not involved in this proceeding; and that in any event the case of unlawful discriminations in favor of Official Territory and against the other territories has not been founded on the actual use of disadvantageous class rates by shippers in the Southern, Southwestern, and Western Trunk-Line territories. But that takes too narrow a view of the problem confronting the Commission. We start of course with some showing of actual discrimination against shippers by reason of their use of class rates. But the main case of discrimination made out by the record is one against , 308] regions and territories. We assume that a case of unlawful discrimination against shippers by reason of their geographic location would be an unlawful discrimination against the regions where the shipments originate. But an unlawful discrimination against regions or territories is not dependent on such a showing. As we stated in Georgia v. Pennsylvania R. Co ., , 723, 'Discriminatory rates are but one form of trade barriers.' Their effect is not only to impede established industries but to prevent the establishment of new ones, to arrest the development of a State or region, to make it difficult for an agricultural economy to evolve into an industrial one. Non- discriminatory class rates remove that barrier by offering that equality which the law was designed to afford. They insure prospective shippers not only that the rates are just and reasonable per se bt that the y are properly related to those of their competitors. Shippers are then not dependent on their ability to get exception rates or commodity rates after their industries are established and their shipments are ready to move. They have a basis for planning ahead by relying on a coherent rate structure reflecting competitive factors. If a showing of discrimination against a territory or region were dependent on a showing of actual discrimination against shippers located in these sections, the case could never be made out where discriminatory rates had proved to be such effective trade barriers as to prevent the establishment of industries in those outlying regions. If that were the test, then the 1940 amendment to 3(1) would not have achieved its purpose. We cannot attribute such futility to the effort made by Congress to make regions, districts and territories, as well as shippers, the beneficiaries of its anti-discrimination policy expressed in 3(1). , 309] So far as the remedy is concerned, the present cases might, of course, be different if the Commission had no power to prescribe classifications. But 15(1) of the Act grants it full power, on finding that a classification is 'unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial,' to determine and prescribe what classification will be 'just, fair, and reasonable.' The Commission's over- all conclusion was that the classifications in force and the class rates computed from them harbor inequities which result in unlawful discriminations in favor of Official Territory and against the other territories. The fact that relatively small amounts of freight move by class rates proves not that the regional and territorial discrimination is slight, but that the rate structure as constituted holds no promise of affording the various regions or territories that parity of treatment which territorial conditions warrant. The Commission in substance concluded that that result could not be achieved unless traffic was, in the main, moved on class rates. We will discuss later the appropriateness of the relief granted by the interim orders here challenged. It is sufficient here to note that the case of unlawful discrimination against these territories was chiefly founded on the absence of non-discriminatory class rates and uniform classifications which would remove the features of existing rate structures prejudicial to Southern, Southwestern, and Western Trunk-Line territories. We are thus not primarily concerned with the adequacies of the Commission's findings showing discrimination against actual shippers located in a territory (cf. State of Florida v. United States, ; State of North Carolina v. United States, ; Interstate Commerce Commission v. Mechling, ), but with prejudice to a territory as a whole. , 310] Fourth. The inquiry of the Commission into the effect of class rates on the economic development of Southern, Southwestern, and Western Trunk- Line territories took a wide range. It concluded that projudice to the territories in question had been established. We think that finding is supported by substantial evidence. It is, of course, obvious that the causal connection between rate discrimination and territorial injury is not always susceptible of conclusive proof. The extent of that causal relation cannot in any case be shown with mathematical exactness. It is a matter of inference from relevant data. The Commission recognized, for example, that the fact that the South has fewer industries than the East results from a complex of causes-that the 'industrial development of the East is due to many factors other than transportation services and costs, such as climate, soil, natural resources, available water power, supplies of natural gas and coal, and early settlements of population which antedated the building of the railroads.' 262 I.C.C. p. 619. It notedthat in 19 39 freight revenues on commodities in the manufactures and miscellaneous group were but 5.3 per cent of the destination value of manufactured goods and that differences in freight charges resulting from differences in class rate levels were only a small fraction of that figure. But it nevertheless concluded that 'Nearness to markets and ability to ship to markets, on a basis fairly and reasonably related to the rates of competitors, are nevertheless potent factors in the location of a manufacturing plant. In fact, rate relations are more important to the manufacturer and shipper than the levels of the rates.' 262 I.C.C. 619, 620. The great advance in industrialization of Official Territory over the other territories need not be labored, for it is obvious. Some manifestations of that development may be illustrated by the following tables: , 311] [] Gainful Value of Value added Territory Land area, Workers manufactured by manufacture, 1949 1930 products, 1939 1939 []Official 13.5 51.1 67.8 71.4 Southern 13.3 16.8 10 9.4 Western Trunk line 20.9 13.5 9.9 8.7 Southwestern 14.2 9.3 4.5 3.3 Mountain Pacific 38.1 9.3 7.8 7.2 [] Total 100.0 100.0 100.0 100.0 [] Another measure of industrial growth is shown by the number of gainful workers and the manufacturing industries in the several territories: Actual increase Actual Increase Actual increase in value of in value added Territory in total gainful products in all by manufacture in workers from manufacturing all manufacturing 1910 to 1930 industries from industries from 1909 to 1939 1909 to 1939 []Official 6,230,273 $23,561,190,000 $11,284,350,000 Southern 652,755 4,299,396,000 1,662,336,000 Western Trunk Line 904,986 3,117,079,000 1,662,336,000 Southwestern 1,011,151 1,942,378,000 580,388,000 Mountain Pacific 1,863,419 3,320,930,000 1,341,785,000 [] The value added by manufacture in all industries from 1849 to 1939 is shown for all the territories by the chart on the following page. From this chart it is apparent that Official Territory has maintained its commanding lead in spite of recent market increases elsewhere, especially in the South. Similarly, for the period 1929 to 1939 the number of wage earners in manufacturing industries in the entire country decreased 11 per cent; in Official Territory, 12 per cent; while in the South there was an increase of 5 per cent. For the same period, values of manufactured products increased 1 per cent in the South, while they decreased 21 per cent for the entire country and 25 per cent in Official Territory. From 1930 to 1940, the number of gain- , 312] [F4 to Display Graphic Image] []fully occupied workers in manufacturing in Official Territory decreased from 70.5 per cent to 69.4 per cent of the nation's total, while in the South there was an increase from 10 per cent to 11.9 per cent. A number of manufacturing activities have increased more rapidly in the South than in Official Territory, though the reverse has been true in other industries. But in spite of the growth in industrial activities in the South and West ( which ap- , 313] pellants stress heavily), the percentage comparisons are not particularly revealing because of the great disparity between the bases on which they are computed. The fact remains that economic development in the South and West has lagged and still lags behind Official Territory. In 1940 the average annual dollar income per person employed in Official Territory was $1,988; in Southern, $940; in Southwestern, $1,177; in Western Trunk-Line, $1,411. Official has 69 per cent of all workers engaged in manufacturing in te United tates and 29 per cent of all workers in extractive industries. It has, for example, a high concentration in the manufacture of steel and copper products, though less than 4 per cent of the iron ore reserves, and no reserves of metallic copper. The South and West furnish raw materials to Official and buy finished products back. They are also dependent to a great extent on the markets for their products in Official, which has over 48 per cent of the population of the country, 76 per cent of the national market for industrial machinery and raw materials, 64 per cent for all goods and sources, 62 per cent for consumer luxuries, and 53 per cent for consumer necessities. Yet the South and West suffer rate handicaps when they seek to reach those markets. 18 One of the many illustrations will suffice. Cottonseed oil is a basic agricultural commodity. Class rates on it are , 314] 7 per cent higher from Southern to Official Territory than they are within Official Territory. If the cottonseed oil is manufactured into oleomargarine, the rates from Southern to Official Territory are 35 per cent higher than the rates within Official Territory. It is said in reply, however, that the disparities which we have mentioned reflect only natural advantages which justify differences in rates. The great concentration of population in the East is said to show that its more favorable rates are justified by the fact that it has many more people to support the roads. The unfavorable income comparisons with the East are thought to establish one of the handicaps under which the roads in the South and West operate. It is pointed out that the heavy preponderance of the nation's total natural resource of energy supply is located in Official Territory-40 to 45 per cent of the total bituminous and semi-bituminous coal supply, practically all of the anthracite resources; 60 per cent of all electric energy originates there. It is said that Official Territory is the logical location for industries which use metals from other territories, since it has the natural supplies of coal. It is also pointed out that the gross income from crops and livestock in Official Territory is the highest , 315] in the country, amounting to 31 per cent of the total. From these and comparable data it is argued that the lower rates in Official territory reflect only inherent advantages which the other territories do not enjoy. It is, therefore, argued that what the Commission has sought to do is to equalize economic advantages, to enter the field of economic planning, and to arrange a rate structure designed to relocate industries, cause a redistribution of population, and in other ways to offset the natural advantages which the territory has over another. It is asserted that such a program is unlawful under Interstate Commerce Commission v. Diffenbaugh, , 24, where the Court held that the Act, in its condemnation of discrimination, 'does not attempt to equalize fortune, opportunities, or abilities.' And see United States v. Illinois Central R. Co., supraat page 524, 44 S.Ct. at page 193; Texas & Pacific R. Co. v. United States, supraat pages 637, 638, 53 S.Ct. at pages 771, 772. We will revert to this matter when we come to consider whether territorial conditions justify the differences in rates. It is sufficient at this point to say that the record makes out a strong case for the inference that natural disadvantages alone are not responsible for the retarded development of the South and the West, that the discriminatory rate structure has also played a part. How much a part cannot be determined, for every effect is the result of many factors. But the inference of prejudice from the discriminatory rate structure is irresistible. If this discriminatory rate structure is not justified by territorial conditions, then its continued maintenance preserves not the natural advantages of one region but man-made trade barriers which have been imposed upon the country. Such a result cannot be reconciled with the great purposes of 3(1) as amended in 1940. Fifth. The Commission found that conditions peculiar to the respective territories did not justify the differences in the territorial class-rate structures. In reaching that , 316] conclusion it first inquired whether the differences in the costs of furnishing the railroad service in the several rate territories justified the existing differences in the levels and patterns of the class rate scales. 19 The basis of its inquiry was a cost study submitted by its staff. For cost analysis purposes the United States is divided into areas roughly but not exactly approximating the classification territories. Thus there are three districts: Eastern, Southern and Western. Southern district is further divided into Pocahontas region and Southern region. Eastern district plus Pocahontas region is substantially the equivalent of Official territory. 20 In the cost study, railroads were assigned to geographical areas; expenses for individual roads were divided into groups, each group being associated with appropriate service units which included revenue car-miles, revenue gross ton-miles, and cars originated and terminated; unit costs were then obtained by dividing the aggregate of the territorial expenses in each group by the applicable territorial units; the costs of particular services were then built up from the unit costs. Costs were put into two classes-(1) out-of-pocket or variable expenses which vary directly with the kind of traffic handled; (2) constant or fixed costs not capable of assignment to particular kinds of traffic costs 21 which , 317] normally must be borne by the various types of traffic in proportion to the ability of each to pay. The details of the cost study are too intricate and voluminous to relate here. They have been summarized by the Commission. 262 I.C.C. pp. 571-592. It should be noted, however, that allowances for return-computed at both 4 per cent and 5 3/4 per cent-were included among costs. The allowances for return were based on recommended rate-making values furnished by the Bureau of Valuation. The territorial cost comparisons were principally based on he 4 per c ent return figure, the Commission noting that the figure was relatively close to the return earned by the carriers in the year covered by the study, viz., 1939. To summarize very briefly, the expenses of the carriers were first broken down and translated into territorial average unit costs of performing each of the kinds of services involved in moving a specific shipment or in furnishing a given amount of transportation service in each territory. These unit costs were then multiplied by the number of units of each of the services found to be employed in moving the specific shipment or furnishing the given amount of service in the territory. The process was repeated for a series of different shipments or services sufficient to make the result representative of territorial conditions. Once the average costs for each rate territory were computed, territorial average costs were compared. The principal comparisons were based on the year 1939, although supplementary studies were also made for the periods 1930-1939, inclusive, 1937-1941, inclusive, and 1941. The territorial cost comparisons showed, for example, the costs of hauling given weight loads in a certain type of car for given distances in each territory. They also showed the relative costs of handling the entire traffic consist of each territory. This was designed to eliminate the effects of any differences in consists of traffic between territories compared, by determining first the cost in the territory , 318] in which it actually moved and then the cost in each of the other territories. The cost study gave consideration to freight moving for various distances in all kinds of equipment-box, hopper, gondola, tank, stock, flat, and refrigerator cars. Costs were compared for identical loads hauled in the principal types of equipment. Standard loads were then taken. The average weight loads experienced in each territory for various types of equipment were also taken. The aim was to make adjustment for the different types of equipment used and the different average loads between territories. Likewise, comparisons were made of the cost of hauling the entire consist of the traffic of one territory, at the average loads and unit costs applicable in that territory, with the cost of hauling the identical traffic at the average loads and unit costs applicable to the other territories. Comparisons were also made (for the distances the traffic actually moved, by classes of equipment, and at actual average loads) of the relative cost of hauling the consist of traffic of the entire United States, and the costs of carrying the Eastern, Southern and Western consists respectively in each of the several territories. When it came to the Eastern district computations were made which both excluded and included the Pocahontas region. That region, for purposes of the study, represented the operation of three railroads- Chesapeake & Ohio, Norfolk & Western, and the Virginia-about 84 per cent of whose freight traffic is coal. For purposes of such a comparative study as this, the exclusio of Pocaho ntas is considered desirable, since its costs are low because of the very heavy coal tonnage. 22 , 319] The Commission attached principal weight to the haul of 300 miles per shipment originated, as that distance most closely approximated the length of haul in each territory in 1939. Relative territorial23 costs (fully distributed) for traffic moving that distance in box car and gondola cars were as follows: [U.S. average=100] [] Box cars Gondola and hopper cars [] Assumed Actual Assumed Actual 25 ton load average load 50 ton load average load [] Eastern (excl. Pocahontas) 102 103 100 100 Southern 96 97 99 102 Western 108 108 109 115 [] The Commission computed that on the foregoing analysis for 100, 300 and 500 miles, the fully distributed costs for the South are generally a little lower than for the East, Pocahontas excluded, while the fully distributed costs in the West exceed those of the East by from 6 to 15 per cent. Similar cost comparisons were made for the several territories for stock-car, refrigerator car, tank car, and flat car traffic. Based on the actual average loads experienced for each class of equipment, the Commission found the costs for the South lower than those for the East ( Pocahontas excluded) for traffic moving in all those classes of equipment. The costs for the West are also lower than those for the East as to stock car, refrigerator car, and flat car traffic, but higher for tank car traffic. , 320] A territorial comparison of fully distributed costs for carload traffic moving 300 miles in all classes of equipment shows the following: 24 [U.S. average=100] [] Identical Actual loads average loads []Eastern (excl. Pocahontas) 102 102 Pocahontas 67 67 Eastern including Pocahontas 95 85 Southern 98 101 Western 108 110 [] The fully distributed costs on identical loads in the South are 4 per cent below those for the East, excluding Pocahontas. The same comparison shows the costs for the West 6 per cent higher than those in the East, excluding Pocahontas. Costs in the South, based on the actual average loads are 1 per cent below those for the East, excluding Pocahontas. In the West they are 8 per cent higher than the latter. Territorial comparisons based on average net ton-mile carload costs ( 1930-1939) adjusted for differences in the length of haul and the consist of the traffic were made. They showed that the costs for the South are approximately 1 or 2 per cent below those for the East, excluding Pocahontas. On the other hand, those costs for the West exceeded those of the East, excluding Pocahontas by from 5 to 7 per cent. Territorial comparisons of the less-than-carload costs were also prepared. They showed that those costs are lower in the Soth than in the East whether assumed identical loads or actual average loads are taken, and even if , 321] Pocahontas is included in the East. They are higher in the West than in the East. If Pocahontas is excluded from the East the following table shows the comparison for a 300 mile haul:[] Assumed identical load Actual average load [] Out of Out of pocket Out of Out of pocket pocket plus constant 1 pocket plus constant 1[]Eastern (excl. Pocahontas) 105 101 94 93 Southern 89 87 88 86 Western 104 109 120 121 [] 1 Constant costs common to all traffic are not included. In all territories less-than-carload traffic (1939) was carried at a deficit, Southern making the best showing, Western the worst. That is revealed in the following table: [] Revenues Costs 1 Deficit []Eastern (excl.) Pocahontas) $107,155,756 $133,308,907 $26,153, 151 Southern 46,635,725 47,451,184 815,459 Western 88,797,938 123,146,215 34,348,277 [] 1 Out-of-pocket cost plus total solely related expenses plus collection and delivery. The Commission found that the difference in fully distributed costs for all traffic between the East and we West is largely in the constant or fixed expenses and the passenger and less-than-carload deficits. Out-of- pocket expenses in the South and West are frequently as low as, or even lower than, the out-of-pocket costs in the East. The Commission further found that the increase in freight traffic volume received by the carriers subsequent to 1939 served to reduce the unit costs of transportation in the South and West in a proportionately greater degree than in the East. A somewhat larger percentage of out-of-pocket expenses in the East is variable with added traffic than is true of the South and West, due apparently to the fact that the East, with its higher traffic density, is closer , 322] to its maximum capacity than is true of the others. Thus the influence of added traffic in reducing average costs is greater in the West. On the other hand constant costs (proportionately larger in the South and West) do not increase with added traffic. As illustrative of those circumstances the Commission noted the effect of increases in 1941 of the ton-miles of revenue freight. They increased in 1941, as compared with 1939, 43 per cent in the East, 27 per cent in Pocahontas, 44 per cent in Southern and 46 per cent in Western Territory. The cost per revenue ton-mile decreased by only about 5 per cent in the East and in Pocahontas, as compared with decreases in excess of 10 per cent in the South and West. The Commission summarized the results of the territorial cost comparisons as follows: There is little significant difference in the cost of furnishing transportation in the South as compared with the East, Pocahontas excluded. It is principally the low terminal costs in the South that account for its relatively low total costs. Based on the year 1939 and the period 1930-1939, the costs in the South are equal to or a little lower than those in the East. Based on the period 1937-1941, the costs in the South are substantially lower than those in the East. 25 Based on the year 1939 and the period 1930-1939, the cost of rendering transportation service in the West is between 5 and 10 per cent higher than in the East, excluding Pocahontas. Based on 1941, that difference is reduced to 5 per cent or less. 26 The Commission recognized, of course, that carriers must obtain their revenue from the traffic which moves in , 323] their respective territories. Hence the revenue-producing or rate-bearing characteristics of the different commodities which compose the traffic of the several territories, i.e., the consists and volumes of traffic, are also important in determining whether territorial conditions justify differences in territorial rates. The percentage distribution of total tons carried and revenue by commodity groups for 1939 is shown in the following table:[] Eastern Eastern Southern Western district (including region district Pocahontas) [] Percent percent percent percent percent percent percent percent of tonn- of tonn- of tonn- of tonn- of tonn- of tonn- of tonn- of tonn- age age age age age age age age [] Group I: Products of agriculture 6.57 8.73 6.07 8.03 10.8 17.73 18.88 23. 7 Group II: Animals and products 1.64 4.72 1.47 4.23 1.45 3.51 3.00 6.3 Group III: Products of mines 58.06 34.85 61.53 40.24 46.39 23.65 36. 64 13.98 Group IV: Products of forests 2.43 2.74 2.43 2.69 11.4 9.45 10.59 9.31 Group V: Manufactures and miscellaneous 29.57 41.41 26.89 37.75 27.21 34. 66 29.38 39.94 [] Total all carload traffic 98.27 92.45 98.39 92.94 97.25 89.00 98. 49 93.23 All less-carload traffic 1.73 7.55 1.61 7.06 2.75 11.00 1.51 6.77 [] The Commission also considered the distribution of carload traffic based on revenue ton-miles for 1939 which it summarized as follows:[] Eastern Pocahontas Southern Western Item district region region district [] Products of agriculture 10.7 2.7 15.8 26.8 Animals and other products 3.8 .5 2.2 4.5 Products of mines 49.3 87.4 40.8 20.1 Products of forests 3.1 1.6 11.6 13.6 Manufactures and miscellaneous 33.1 7.8 29.6 35.0 [] Grand total, carload 100.0 100.0 100.0 100.0 [] , 324] And the contribution which the major classes of commodities (carload lots) make in excess of out-of-pocket costs (1939) appears as follows:[] Eastern Pocahontas Southern Western Unit Item district region region district States [] Products of Agriculture 4.2 3.1 15.8 18.0 10.8 Animals and products 1.5 1.1 3.4 4.3 2.7 Products of mines 38.0 73.4 21.2 13.9 29.7 Products of forests 2.8 2.8 9.4 8.1 5.7 Manufactures and miscellaneous 53.5 19.6 50.2 55.7 51.1 [] Grand total, carload 100.0 100.0 100.0 100.0 100.0 [] A large volume of all traffic moves across territorial boundaries and therefore becomes common to two or more territories. And as respects the balance, the Commission found striking similarity in the consists of the traffic so far as its revenue-producing characteristics are concerned. The manufactures and miscellaneous commodity group embraces traffic which moves at relatively high rates, i.e., rates which, ton-mile for ton-mile, make a substantially greater than average contribution to the constant costs. The percentages of the total tons carried in that group and the corresponding percentages for revenue producedby them ar e quite close to each other-particularly the East and the West. The Commission stated that the revenue-producing qualities, or rate- bearing characteristics, of the commodities which compose the traffic in those several territories constituted 'the governing factor' so far as the problem of the consists and volume of traffic was concerned. 262 I.C.C. p. 694. It appraised the evidence we have related as meaning that 'the differences that exist in the consists of traffic in these respective territories are not so substan- , 325] tial or of such character as to warrant the present differences in class rates.' Id., p. 695. The findings of the Commission both as to the consists of the freight and the costs of rendering the service in the respective territories are vigorously challenged, especially by the western roads. As to the consists, it is said that the eastern roads have a much heavier percentage of freight of a kind that produces excess revenue to carry the general expenses. Findings of the Commission are relied upon as showing that the eastern roads' preponderance of high-grade traffic affords a greater source of revenue than does the high percentage of law rate products carried by the western roads. 27 These undisputed facts are said to disprove , 326] the Commission's finding that the consists of traffic in the respective territories do not warrant the present differences in class rates. These facts, however, relate to density of traffic,28 the effect of which is merged in the final cost figures. But the relation of the consist problem to the problem of rate structures is somewhat different. It is relevant in order to determine whether the consists of traffic are so different in the several territories that separate rate structures with different distributions of the transportation burden amongst commodities and classes of freight are necessary. It is apparent from the statistics which we have reviewed that, while there is a diversity in traffic moved in the several territories, the diversity largely disappears when commodity groups are considered. Then, also, the percentages of the total traffic in each territory which fall under the several commodity groups are not only very siilar in th e East, South, and West, but each group yields about the same percentage of the total revenues in each of the territories. The choice of groupings is plainly a specialized problem in transportation economics upon which the Commission is peculiarly competent to pass. Its judgment that the differences in consists between the territories do not justify the present differences in interterritorial class rates is, indeed, an expert judgment entitled to great weight. We could not disturb its findings on the facts of this record without invading the province reserved for the expert administrative body. , 327] As to the cost study little need be said concerning the South. Once the integrity of the cost study is assumed,29 the finding of the Commission that there is little significant difference in the cost of furnishing transportation in the South as compared with the East has support in the facts. Moreover, the data on rates of return and freight operating ratios, to which we will shortly refer, corroborate the conclusion reached from the cost study that the differences in class rates between the East and the South are not justified by territorial conditions. The finding that the discrimination against the South is unlawful under 3(1) is thus amply supported-a conclusion that the southern carriers do not challenge here. The question is a closer one when we turn to the West. For, as we have seen, the costs in the West on the average run higher than those in the East. Based on the year 1939 and the period 1930-1939, the cost of rendering transportation service in the West is between 5 and 10 per cent higher than in the East, excluding Pocahontas. Based on 1941, that difference is reduced to 5 per cent or less.[] Aggregate expenses, increased for a 4- Actual expenses as Ratio (percent) percent return reported by carriers of computed Territory computed by applying increased for a 4- expenses to costs to traffic percent return (1939) actual expenses handled (1939) [] Eastern $1,426,950,260 $1,451,484,949 98.3 Pocahontas 183,076,590 185,387,990 98.8 Southern 450,448,155 449,001,663 100.3 Western 1,382,549,982 1,395,188,845 99.1 [] United States 3,443,024,987 3,481,063,447 98.9 [] The Commission stated, 'Judging from the above table, whatever errors may exist in the * * * studies, they have not had the effect of overstating or understating the carriers' costs in the aggregate to any appreciable degree.' 262 I.C.C. p. 587. , 328] As we have seen, the class rate structure is discriminatory as between the East and the West. The level of class rates in the West is from 30 to 59 per cent higher than that in the East. The problem of the Commission, therefore, was to determine whether that disparity is justified by territorial conditions. The Commission found that it was not so justified. The problem for us is whether the Commission had a basis for its conclusion. While the western roads vigorously challenge the Commission's finding, their argument is in the main directed to the point that some disparity in rates between East and West is justified by differing territorial costs. No particular effort is made to prove that those costs are a fair measure of the existing rate differences. We start, of course, from the premise that on a subject of transportation economics, such as this one, the Commission's judgment is entitled to great weight. he apprais al of cost figures is itself a task for experts, since these costs involve many estimates and assumptions and, unlike a problem in calculus, cannot be proved right or wrong. They are, indeed, only guides to judgment. Their weight and significance require expert appraisal. The Commission has concluded that while cost studies are highly relevant to these rate problems they are not conclusive. It said in this case:'Discretion and flexibility of judgment within reasonable limits have always attended the use of costs in the making of rates. Costs alone do not determine the maximum limits of rates. Neither do they control the contours of rate scales or fix the relations between rates or between rate scales. Other factors along with costs must be considered and given due weight in these aspects of rate making.' 262 I.C.C. p. 693. In appraising the cost figures relevant here the Commission proceeded on the assumption that the 1941 traffic , 329] level is most likely to prevail in the post-war period. It therefore started with the assumption that the margin of difference between the costs in the West and those in the East was slight and no accurately measured by 1939 figures, and that if, as has been the fact, 30 the freight carried in the West increased above that level the unit costs of transportation in the West would be reduced to a greater degree than those in the East, for reasons which we have already stated. The Commission also had before it certain data relative to the financial condition of the various roads, data which we have not yet discussed. Thus comparative analyses of the rates of return of the roads in the several territories showed that while the western roads have had many lean years, the recent period has put them ahead of the roads in the East. The following table shows the rates of return in percentages based on the net railway operating income and the book investment, increased for cash, materials and supplies:[] 1936 1937 1938 1939 1940 1941 1942 1943 [] Eastern district 2.67 2.27 1.26 2.34 2.66 3.62 4.9 4.32 Southern region 2.52 2.35 1.9 2.5 2.57 4.24 6. 51 5.73 Pocahontas region 7.58 6.61 4.54 5.89 6.21 6. 67 5.29 5.22 Western district 1.88 1.71 1.09 1.65 2.06 3.36 5.8 5.22 [] The Commission also considered the territorial freight operating ratios-the per cent of operating revenues from freight absorbed by operating expenses attributed to the freight. 31 They are shown in the following table: , 330] [] 1936 1937 1938 1939 1940 1941 1942 1943 [] Eastern district 64.95 67.86 68.98 64.88 63. 92 63.04 61.93 66.23 Southern region 65.38 67.77 66.73 64.99 65. 34 61.07 56.84 59.41 Pocahontas region 47.04 50.63 53.59 50.71 49. 77 48.12 49.62 52.86 Western district 65.07 66.93 67.13 65.01 63. 63 60.98 55.79 59.47 [] In light of such data the Commission said:'Making due allowance for a substantial decline in traffic from the war peak and for the fact that in the decade preceding 1940 the earnings of the western rail respondents were relatively low, nevertheless, insofar as the prospects of traffic and revenues in the immediate future can be foreseen, there is no reason to conclude that the interim adjustment will have any serious effect upon those respondents.' 264 I.C.C. 63-64. The Commission went on to note that intrastateclass rate generally in most of the western States and many of the interstate class rates in western territory were already lower than those prescribed in the interim orders. It accordingly concluded that the western roads 'cannot consistently maintain these sub-normal class rates and continue to maintain the relatively high basis of interstate class rates.' 264 I.C.C. p. 64. Moreover, as we have already noted, class rates have to a great extent fallen into disuse. This fact is relevant here in two respects. In the first place, the orders of the Commission affect class rates and class rates alone, the Commission not dealing with exception and commodity rates by the interim action which it has taken. So far as present freight movement is concerned, the orders affect a much smaller fraction of the traffic in the West than in the East. The Commission said:'The record does not support the contention that the revenue needs of the western rail respondents with , 331] respect to their class-rate traffic are greater than those of the eastern rail respondents. From the carriers' reports to us for the years 1942, 1943, as shown in our original report, and 1944, it clearly appears that there is a greater need for revenue by rail carriers in the eastern district as compared with rail carriers in the western district or in the southern region. The report shows also that a much larger percentage of the total traffic in the eastern district moves on class rates than in the western district or in the southern region.' 264 I.C.C. pp. 64, 65. In the second place, the existing rate structure single out the class rate traffic in the West for the payment of unusually high rates. The class rate traffic is largely that of small shippers, who do not have the ability to obtain the benefit of the lower exception or commodity rates. We cannot, therefore, treat this case as if it were one where the Commission, in spite of a showing of some increased cost in the West, reduced all freight rates to a level of equality with the East. It is a case of determining whether the discrimination against one small class of traffic is warranted by the showing of some increased cost in the West. The earning power of the carriers, their freight operating ratios, their rates of return, the estimate of the volume of traffic in the future, the nature and amount of traffic presently involved in the class rate movements are all relevant to the finding of unlawful discrimination. We cannot say that these considerations do not counterbalance or outweigh the disparity in costs between East and West. The appraisal of these numerous factors is for transportation experts. They may err. But the error, if any, is not of the egregious type which is within our reach on judicial review. As we have noted, Interstate Commerce Commission v. Diffenbaugh, supraat page 46, 32 S.Ct. at page 24, held that the Act, in its , 332] condemnation of discrimination, 'does not attempt to equalize fortune, opportunities, or abilities.' But the Commission made no such effort here. It eliminated inequalities in the class rates because it concluded that the differences in them were not warranted by territorial conditions. We think that the findings supporting that conclusion are based on adequate evidence. It is argued that the comparison of rates of return and freight operating ratios overlooks the fact that both reflect the higher freight revenue level that prevails in the West. And it is urged that without the rate advantage which the western carriers now enjoy, any comparison which now appears to favor the western carriers would disappear. That argument assumes a constancy in freight traffic and on that assumption could be mathematically demonstrated. But we are dealing here with a problem of discrimination-a western rate structure which, as compared with the East, is not warranted by territorial conditions and which prejudicies the growth and development of the West. It would be a large orderto say tha t the removal of that trade barrier will have no effect in increasing traffic. The assumption on which the finding of prejudice is made is, indeed, to the contrary. Moreover, that argument would protect a discriminatory rate structure from the power of revision granted the Commission under 3(1) by the easy assumption that without discrimination the carriers would not thrive. But that flies in the face of history and is contrary to the Commission's expert judgment on these facts. Sixth. An extended argument is made by the western roads, challenging the class rate reduction on less-than-carload lots. The argument is twofold-first, that the case of unlawful discrimination has not been made out for this type of class rate traffic; second, that the new less-than- carload class rates are confiscatory. , 333] We have referred to some of the cost figures on less-than-carload lots. We have seen that those cost figures run higher in the West than in the East; that even when no constant costs common to all traffic are allocated to less-than-carload traffic, the deficit in the West is substantially higher than that in the East. The Commission noted that less- than-carload traffic as a whole is carried at a deficit in all territories, except possibly in the South. It also noted that in all territories it was not bearing its proper share of the costs of transportation; that, apart from wartime loading, it was not yielding, on the average, its out-of- pocket costs plus constant expenses solely related to less-than-carload traffic32 plus the cost of collection and delivery, in any territory except possibly the Southern. 262 I.C.C. p. 697. Little need be said concerning the argument that a case of unlawful discrimination has not been established in the case of less-than-carload traffic. The Commission concluded that it less-than-carload class rates were left unchanged while carload class rates in Southern, Southwestern and Western Trunk-Line territories were reduced 10 per cent, 'the competitive relations between shippers shipping in less-than-carload quantities and those shipping in carloads' would be materially affected. 264 I.C.C. p. 66. Less-than-carload traffic is less than 2 per cent of total railroad freight tonnage, and much of that moves, not on class rates, but on exception rates and commodity rates. In Western Trunk-Line and Southwestern territories many intrastate and interstate class rates are now voluntarily maintained on less-than-carload traffic which are lower than the corresponding reduced interstate class rates required by the interim orders. There are other , 334] circumstances, to which we will shortly advert, which reinforce the action of the Commission in reducing class rates on less-than-carload traffic. But the ones we have mentioned are adequate to support the Commission on the discrimination phase of the problem. The Commission was dealing not with discrimination against a particular commodity but with discrimination against entire regions. It was a complete rate structure that was subject to inquiry and revision. Once the Commission concluded that unlawful discrimination existed in the main features of that rate structure, it was justified in removing it. In eliminating the discrimination and establishing the uniformity required by the law, it was warranted in making minor collateral readjustments so that the Commission itself would not in turn create new discriminations. The adjustment of the less-than- carload class rates was permissible on that ground alone. The traffic affected was only a fraction of 2 per cent of the total traffic. Without that readjustment that class of traffic would be prejudiced. With that readjustment the prejudice would be removed and the entire rate structure- intrastate and interstate-would be more narly ratio nalized. That does not, of course, answer the argument on confiscation. The latter requires more extended treatment. The western roads in their petition for rehearing before the Commission raised the confiscation point. But in doing so they rested on the record before the Commission and tendered no additional evidence. In the District Court, however, they presented further evidence which was received over objection and considered by that court. This, therefore, is not a case like Baltimore & Ohio R. Co. v. United States, , 371, 372, 805, 809, where the Commission refused to receive evidence proffered on the point of confiscation. Here, as we have said, the Commission received all evidence that was offered; and , 335] when its order was announced and made known and the petition for rehearing was filed, the opportunity to tender additional evidence to bolster the confiscation point was not accepted. As stated in Manufacturers R. Co. v. United States, , 490, 392, 393, and in St. Joseph Stock Yards Co. v. United States, , 54, 726, 727, correct practice requires that where the opportunity exists, all pertinent evidence bearing on the issues tendered the Commission should be submitted to it in the first instance and should not be received by the District Court as though it were conducting a trial de novo. The reason is plain enough. These problems of transportation economics are complicated and involved. For example, the determination of transportation costs and their allocation among various types of traffic is not a mere mathematical exercise. Like other problems in cost accounting, it involves the exercise of judgment born of intimate knowledge of the particular activity and the making of adjustments and qualifications too subtle for the uninitiated. 33 Moreover, the impact of a particular order on revenues and the ability of the enterprise to thrive under it are matters for judgment on the part of those who know the conditions which create the revenues and the flexibility of managerial controls. For such reasons, we stated in Board of Trade of Kansas City, Mo. v. United States, , 372:'The process of rate making is essentially empiric. The stuff of the process is fluid and changing-the , 336] resultant of factors that must be valued as well as weighed. Congress has therefore delegated the enforcement of transportation policy to a permanent expert body and has charged it with the duty of being responsive to the dynamic character of transportation problems.' Thus we think that if the additional evidence was necessary to pass on the issue of confiscation, the cause should have been remanded to the Commission for a further preliminary appraisal of the facts which bear on that question. But we do not take that course here for reasons which will shortly appear. The Commission explained its finding that less-than-carload traffic was being carried at large deficits and was not bearing its proper share of transportation costs. That finding was based on the operation of the roads in 1939 when the average load per car of less-than-carload shipments amounted to only 4.3 tons in the West. Since 1939 there has been a substantial increase in the average loading of such shipments, which was brought about under wartime conditions an which has materially decreased the unit costs attributable to less-than-carload traffic. In the judgment of the Commission it was not shown that loadings in the immediate postwar period were likely to decline to 1939 levels. Moreover, the cost date on less-than-carload traffic related to such traffic as a whole and not solely to that moving on class rates. As we have noted, much of this traffic moves not on class rates but on exception rates and commodity rates. The class-rate traffic bears the highest rates. The past failure of this traffic, as a whole, to carry its proper share of the costs may well have been due in large measure to the maintenance of exception and commodity rates. The western roads present elaborate analysis (based both on the Commission's cost figures and on costs as adjusted by the evidence introduced in the District Court) , 337] which shows less-than-carload traffic largely carried at deficits irrespective of the class rate paid under the interim orders. They contend that the loading figure of 4.3 tons is the only reliable one to use in projecting the costs and revenues into the postwar period, since it was in fact the average loading prior to the war, and will be once more, as soon as the order of the Office of Defense Transportation which requires ten- ton loading is revoked. And computations are presented based on that figure which shows deficits in less-than-carload traffic, deficits which are increased when the Commission's cost figures are adjusted to reflect cost increases to January 1, 1946. All of those computations include as constant costs only those which related to this traffic. And it is pointed out that if all constant costs were included, the computed deficits would substantially increase. On the other hand the Commission shows that on the basis of the new interim rates this traffic in the West would produce revenues in excess of out-of-pocket expenses plus 4 per cent return plus collection and delivery expenses plus loss and damage payments. That computation is based on a ten- ton loading figure. And on the basis of those types of costs, there is an excess of revenue even though the costs are increased to the January 1, 1946 level. The 1939 less-than-carload costs34 in the West were 30 per cent greater than revenues from all such traffic. If the classrate portion of less-than-carload traffic is taken, the costs are 81 per cent of the revenues, provided certain adjustments are made: (1) increased revenues from the increase in the minimum charge per shipment from 55 to 75 cents which the Commission authorized in this proceeding; (2) the elimination of less-than-carload traffic moving on exception, commodity, and intrastate rates; (3) a 10 ton load; and (4) a 2.47 per cent rate of return, which was the actual rate of return of 1939. , 338] We do not stop to analyze the various computations in order to ascertain the exact relation between revenues and costs of less-than- carload traffic. That, indeed, would not be feasible on this record. For even the Commission made no attempt to determine what share of all costs should fairly be allocated to less-than-carload traffic. Hence, if the Commission had spoken its final word, and if it were believed necessary as a matter of constitutional law, see Northern Pacific R. Co. v. State of North Dakota, , L.R.A.1917F, 1148, Ann.Cas.1916A, 1; cf. Federal Power Commission v. Hope Natural Gas Co., , 288, to fix a less-than- carload class rate which produced a fair return on that particular traffic, the case would have to be remanded to the Commission for appropriate findings on this phase. The difficulty of treating the issue on the present record is illustrated in another way. Less-than-carload traffic, more than carload traffic, carries costs which to a degree are dependent on the carrier. Heavy or light loadings, speed of service, rati of empty return cars, methods of loading freight so as to reduce damage claims, substitution of auxiliary truck service and the like turn on competitive conditions. Certainly rates need not compensate carriers for the most expensive way of handling less-than-carload service. Yet the present findings do not illuminate that problem nor provide the standard in terms of service for measuring the compensatory character of the less-than- carload class rates. And on such a problem the Commission's highest expert judgment would be called into play. But the Commission has not finished with this problem. In the first place, as we point out hereafter, the Commission, subsequent to the issuance of these interim orders, granted a nationwide increase in freight rates, including an increase on less-than-carload rates. The temporary injunction has prevented the interim orders reducing class rates in the West by 10 per cent from going into effect. , 339] When, therefore, the interim orders do go into effect, the actual rates chargeable presumably will be increased from the level fixed by the interim orders to the level prescribed by the recent order increasing all freight rates. Thus no loss has been suffered by the 10 per cent reduction on less-than-carload class rates; and any loss which would have been suffered by that rate reduction has probably been at least lessened, if not eliminated, by the general rate increase. Though it is argued that such is not the case, the showing is too speculative on this record for us to decide what the precise effect of the revised class rates on less-than- carload traffic will be. In the second place, as we have noted, the Commission made the present interim adjustment of class rates on less-than- carload traffic as a consequence of its reduction in carload class rates so that less-than-carload shippers would not suffer a disadvantage from the removal of the major discrimination in the class rate structure. The interim or temporary nature of the adjustment was recognized by the Commission when it admonished the carriers 'to give careful consideration to the rates maintained by them on less-than-carload traffic with a view to making readjustments in ratings or rates, as promptly as possible, which will insure that the rates on such traffic are on a compensatory level.' 264 I.C.C. 66-67. And it recognized but left untouched the problem of determining what would be the proper share of transportation costs to be borne by less-than-carload traffic. The justification the Commission had for leaving the problem in that condition at this stage of the proceedings is apparent. The carriers are now preparing the new uniform classification. They have it within their power to follow the lead suggested by the Commission and to propose classification differences between carload and less-than-carload traffic which will obviate any issue of confiscation respecting less-than-carload rates. And it , 340] has likewise left open the question of readjustment of the class rates on less-than-carload traffic when the total program, of which these interim orders are but a part, is put into effect. Where the result of a rate order is not clearly shown to be confiscatory but its precise effect must await operations under it, the Court has refused to set it aside despite grave doubts as to its consequences. See City of Knoxville v. Knoxville Water Co., , 18, 153, 154. And see Willcox v. Consolidated Gas Co., , 55, 200, 201, 48 L.R. A.,N.S., 1134, 15 Ann.Cas. 1034; Darnell v. Edwards, , 703; Brush Electric Co. v. City of Galveston, , 607; St. Joseph Stock Yards Co. v. United States, supraat page 69, 56 S.Ct. at page 733. The reasons for following a like course are equally impelling here. The Commission has not placed the western roads in a straight jacket. It has made an interim reduction onless-than- carload class rates as an incident to its removal of discriminations in carload class rates. It has indicated the course to be followed by the carriers, as a part of the overall classification and class rate problem, to make certain that these rates are compensatory. We are thus dealing with a problem which is in flux, an interim order made necessary as a result of a comprehensive revision of entire rate structures. Moreover, the conclusion to be drawn from the recent general increase in freight rates is too uncertain and speculative on this record for us to pass on the confiscation issue. See Brush Electric Co. v. City of Galveston, supra. The District Court amply protected appellants when it overruled their claim that the interim rates are confiscatory without prejudice to another suit to challenge the legality of those rates if, after a fair test, they prove to be below the lowest reaches of a reasonable minimum or if the permanent rates do not meet that standard. See Darnell v. Edwards, supraat page 570, 37 S.Ct. at page 703. Seventh. It was held in Texas & Pacific R. Co. v. United States, supraat page 650, 53 S.Ct. at pages 776, 777, what where the Commission makes , 341] an order under 3 to remove an unlawful discrimination, the carriers must be afforded the opportunity to 'abate the discrimination by raising one rate, lowering the other, or altering both.' But that ruling was qualified by the statement that the Commission need not follow that course in case it acts under 15(1). Id., p. 650, note 39. Section 1(5)(a) of the Act provides that all charges for the transportation of property 'shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful.' And see 1(4). Section 15(1) provides that when the Commission finds that 'any individual or joint rate, fare, or charge' of a common carrier is 'unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial,' the Commission may determine and prescribe 'what will be the just and reasonable' rate. And see 15(3). The words 'unjustly discriminatory or unduly preferential or prejudicial' plainly refer to practices condemned by 3(1). A proper finding of unlawful discrimination under 3(1) thus enables the Commission not only to direct the carriers to eliminate the practice but also, pursuant to 15, to prescribe the alternative. See Youngstown Sheet & Tube Co. v. United States, . Thus the Commission in this type of situation, as in the case where intrastate commerce is involved, Georgia Public Service Commission v. United States, , may remove unlawful discriminations and prescribe new rates. In Texas & Pacific R. Co. v. United States, supraat page 650, 53 S.Ct. at page 776, it was also stated that, 'A carrier or group of carriers must be the common scource of the discrimination-must effectively participate in both rates, if an order for correction of the disparity is to run against it or them.' And it was held in Central R. Co. of New Jersey v. United States, , 42 S. Ct. 80, 83, that mere participation in joint rates does not make connecting carriers partners in discrimination; , 342] that they can be held responsible for unjust discrimination only if each carrier has participated in some way in the practice which causes the discrimination, 'as where a lower joint rate is given to one locality than to another similarly situated.' It is argued that the same rule applies in this case since, for example, the western carriers have no control of or participation in the lower Official intraterritorial rates, although they do participate in the joint or through interterritorial rates. In reply it is said that carriers in Official Territory control rates within that area and also control, joinly with th e carriers in each of the other territories, the rates from each of them into Official. That common stock of discrimination is said to be sufficient to sustain the Commission's action. See St. Louis, Southwestern R. Co. v. United States, ; Chicago I. & L.R. Co. v. United States, . But we do not need to decide the question. For the principle announced in Central R. Co. v. United States and Texas & Pacific R. Co. v. United States, supra, is applicable only where the Commission is directing the carriers to remove the discrimination. Those cases hold that the Commission may not require carriers to do what they are powerless to perform. But the Court recognized in Central R. Co. v. United States, supraat page 257, 42 S.Ct. at page 82, that where the Commission acts pursuant to 1 to require carriers to establish, in connection with through routes and joint rates, reasonable rules and regulations, that problem is not involved. For then the Commission corrects the unlawful discriminatory practice in the case of each carrier by prescribing the just and reasonable rate or practice. The same is true where, as here, the Commission in order to eliminate territorial discriminations proceeds under 15(1) to fix new reasonable rates. If the hands of the Commission are tied and it is powerless to protect regions and territories from discrimination unless all rates involved in the rate relationship are con- , 343] trolled by the same carriers, then the 1940 amendment to 3(1) fell far short of its goal. We do not believe Congress left the Commission so impotent. It may not be said in this case, as it was held in Texas & Pacific R. Co. v. United States, supraat page 633, 53 S.Ct. at page 770, that there was no evidence of the unreasonableness of the rates, or that that question was not in issue. The Commission here found that the rates were unjust and unreasonable under 1 and it proceeded to fix new rates under 15(1). The facts which establish that the differences in rates as between the several territories are not warranted by territorial conditions plainly sustain its findings under 1. As we have said, this proceeding pertains only to class rates, which move but a small percentage of the traffic. It is, therefore, argued that the Commission should not have made adjustments in those rates without bringing about some equalization of exception and commodity rates under which the bulk of the traffic is moved. But there is no reason in law why the Commission need tackle all evils in the rate structure or none. It may take one step at a time. Cf. United States v. Wabash R. Co., . The 10 per cent interim rate order did not attempt to bring about complete elimination of the discriminatory features of the class rate structure. It was only an approximation of that result, the complete step awaiting the new uniform classification. But the reasons justifying that partial measure likewise support the action of the Commission in commencing with class rates when it tackled the problem of territorial discriminations. Eighth. A different problem is presented when we turn to the 10 per cent increase in class rates which the Commission prescribed for Official Territory. Appellants strenuously urge that this action of the Commission was unauthorized under the Act, even if the other portions of its orders were justified. , 344] The finding of the Commission on this phase of the case was that the present class rates in Official Territory were below a just and reasonable level and should be increased 10 per cent as a part of the adjustment of the rate structure in order to remove the unlwfulness both as respects their unreasonable low level and their unduly preferential character. 262 I.C.C. 700, 701, 704, 705; 264 I.C.C. 62. That finding is said to be without support in the record and to lack the prelimiary findin gs necessary to support it. It is argued that rates are not unreasonably low in violation of 1 unless they are either noncompensatory or otherwise threaten harmful effects upon the revenues and transportation efficiency of the carriers in question, or of their competitors. It is said, as is the fact, that no such findings were made by the Commission and that on this record there are no facts which could support such a finding. If this were a case of determining whether existing rates passed below the lowest or above the highest reaches of reasonableness, the point might be well taken. 35 See United States v. Chicago, M. St. P. & P.R. Co., , 465. But we do not have here such a revenue problem. This case presents problems in rate relationships, that is to say, problems of a discriminatory rate structure condemned by 3(1). The Commission may remove a discrimination effected by rates even when they are within the zone of reasonableness, if the discrimination is forbidden by 3(1). As Mr. Justice Brandeis stated in United States v. Illinois Central R. Co., supraat page 524, 44 S.Ct. at page 193, the , 345] mere fact that one rate is 'inherently reasonable and that the rate from competing points is not shown to be unreasonably low, does not establish that the discrimination is just. Both rates may lie within the zone of reasonableness and yet result in undue prejudice.' The Commission has the power to adjust the rates, upwards and downwards, within that zone, in order to eradicate the discrimination. That power is not unlimited; there are standards which control its exercise. But as we shall see, the Commission acted within permissible limits here. Once the Commission has found rates to be 'unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial,' it is empowered to prescribe rates which are 'just and reasonable' or 'the maximum or minimum, or maximum and minimum, to be charged * * *.' 15(1). In Youngstown Sheet & Tube Co. v. United States, supra, the Commission, acting under 15(1), increased rail rates by prescribing what it found to be reasonable minimum rates. There was no finding that the existing, lower rates were not compensatory. The finding of reasonableness was premised on the grounds that 'lower rates would create undue discrimination against shippers in origin districts who cannot use the waterrail route, and would tend to disrupt the rate structure, and to destroy the proper differentials between various producing districts on shipments to Ohio destinations.' Page 479 of 295 U.S., page 823 of 55 S.Ct.. The Commission relied not only on evidence bearing upon the character of the service and cost but also on a comparison of other rates in the same or adjacent territory. The Court sustained the order saying, 'The existing rate structure furnished support for the finding of reasonableness.' Page 480 of 295 U.S., page 824 of 55 S.Ct.. In Scandrett v. United States, D.C., 32 F.Supp. 995, 996, affirmed , the Commission had found that proposed reduced rates were 'compensatory, considering all costs' but that they were below a minimum , 346] reasonable level and therefore unlawful. It took that action to prevent destructive competition between rail, water, and motor carriers. The court sustained the order. And see Jefferson Island Salt Min. Co. v. United States, D.C., 6 .2d 315. These cases, to be sure, recognize the power of the Commission so to fix minimum rates as to keep in competitive balance the various types of carriers and to prevent ruinous rate wars between them. That plainly is one of the objectives of the Act, and one of the reasons why the Commission was granted the power to fix minimum rates by the Transportation Act of 1920, 49 U.S.C.A. 71 et seq. See H.R.Rep.No.456, 66th Cong., 1st Sess., p. 19. Cf. Mississippi Valley Barge Line Co. v. United States, . But the elimination of discrimination occupies an equally high place in the statutory scheme. And, as we have said, the power granted the Commission under 15(1) includes the power to prescribe rates which will substitute lawful for discriminatory rate structures. If the Commission were powerless to increase rates to a reasonable minimum in order to eliminate an unlawful discrimination, unless existing rates were shown to be non- compensatory or unless ruinous competition would result, it would in some cases be powerless to prescribe the remedy for unlawful practices. The present case is a good illustration. A 10 per cent reduction of rates in the South and West would remove only part of the discrimination. On this record it is most doubtful that a full reduction of those rates to the level of Official Territory would be warranted. Yet if the rates in Official Territory may not be increased unless the present ones are shown to be non-compensatory, discrimination against the South and West and in favor of Official Territory would continue to thrive. For shippers in Official Territory would still have a preferred rate, as compared with shippers from the South and West, in reaching the great markets of the East-a preference not , 347] shown to be warranted by territorial conditions. The raising of rates to a reasonable minimum was, therefore, as relevant here as it was in Youngstown v. United States, supra, to the Commission's task of providing a rational rate structure. The authority of the Commission to increase rates in order to remove discrimination, even though existing rates may be compensatory, is not unlimited. Section 15a(2) of the Act provides:'In the exercise of its power to prescribe just and reasonable rates the Commission shall give due consideration, among other factors, to the effect of rates on the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management to provide such service.' The balancing and weighing of these interests is a delicate task. 'Whether a discrimination in rates or services of a carrier is undue or unreasonable has always been regarded as peculiarly a question committed to the judgment of the administrative body, based upon an appreciation of all the facts and circumstances affecting the traffic.' Swayne & Hoyt, Ltd. v. United States, , 481. And see United States v. Chicago Heights Trucking Co., , 352, 353, 935, 936; Barringer & Co. v. United States, , 6, 7, 729, 970, 971. We may assume, however, that if the rates of return of the eastern carriers were substantially above that for the South and the West, an increase of the rates for the former would not be permissible, even in order to remove a discrimination. But, as we have seen, the rate of return in recent , 348] years36 has favored the southern and western carriers, as have the freight operating ratios. The Commission took those factors, as well as the others we have reviewed, into consideration in determining that an increase in rates in Official Territory was warranted. 264 I..C. 61, 62 . Revenue needs, like costs of rendering the transportation service, are germane to the question whether differences in territorial rate structures are justified by territorial conditions. They are amongst the standards written into 15; they reflect the totality of conditions under which the carriers in the respective territories operate. Should the Commission fail to consider them in determining whether the discrimination inherent in the rate struc- , 349] tures was unwarranted, it would have not completed its task. There may be differences of opinion concerning the weight to be given those factors, especially the weight to be given the rate of return in the current years as opposed to that in the preceding decade. But their significance is for the Commission to determine; and, though we had doubts, we would usurp the administrative function of the Commission if we overruled it and substituted our own appraisal of these factors. Ninth. After the present interim orders were issued, the Commission granted a nationwide increase in all freight rates. 37 It is argued that this rate increase has rendered the interim orders with which we are here concerned obsolete and unenforcible. It is said that in making the general rate increase, the Commission found greatly different conditions affecting transportation rates from those it found in these proceedings; that the greater increases allowed in Official Territory38 undo the uniformity policy on which the interim orders are framed; and that the enforcement of the interim orders in light of these changed conditions would produce results plainly not contemplated. This is not a case where by reason of changed conditions the record is stale. The changed circumstances do not affect the issues here. Cf. Interstate Commerce Commission v. Jersey City, , 1135; United States v. Pierce Auto Freight Lines, , 66 S.C t. 687, 697. To repeat, , 350] this is a proceeding to eliminate territorial rate differences not justified by territorial conditions. The general rate increase recently granted by the Commission was a revenue proceeding. Revenue adjustments can be and are superimposed on such rate structures as exist. The fact that revenue adjustments may produce lack of uniformity in rates is not inconsistent with the decision in the present case. As we said earlier, 3(1) does not dicate a policy of national uniformity in rates; it only requires that the lack of uniformity in rates among and between territories be justified by territorial conditions. The finding of the Commission, if supported by evidence, that the revenue needs of carriers in one territory demand a lower or a higher rate in that territory is a justification for a difference in rates as between that territory and other territories. The order of the Commission granting the general rate increase is not before us and we intimate no opinion on it. It is sufficient for our present purposes to say that it emphasizes the distinction between revenue and rate relationship cases and in no way impairs the finding in the present case that the existing class rate structure that has prevailed in the several territories stands condemned under 3(1). Nor is there any inherent inconsistency between the interim orders reducing class rates and the recent order increasing all rates. The latter was based on conditions in a period subsequent to the discrimination proceedings. Whether the general rate increase will require adjustments in the new permanent uniform scale which awaits the new uniform classification is a question for the Commission when the new classification is ready. 39 , 351] Other issues raised by appellants need not be discussed. The injunction staying the orders of the Commission is vacated and the judgment of the District Court dismissing the petitions is affirmed. Affirmed. Mr. Justice FRANKFURTER, dissenting. In the case involving issues much narrower than those now here, the Court, only the other day, struck down an order of the Interstate Commerce Commission for want of adequate findings. Interstate Commerce Commission v. Mechling, , at page 902. Although in that case there were explicit findings, the Court deemed them inadequate because they were based on 'unsifted averages.' In a series of cases the Court has set aside orders of the Interstate Commerce Commission because of the failure of the Commission to ascertain and to formulate with clarity and definiteness the transportation and economic circumstances which alone could justify the order, and thereby afford this Court assured basis for concluding that the Commission had duly exercised its allowable judgment on the factors underlying the ultimate issues. See State of Florida v. United States, ; United States v. Baltimore & Ohio R. Co., ; Atchison, Topeka & Santa Fe R. Co. v. United States, ; United States v. Carolina Freight Carriers Corporation, ; City of Yonkers v. United States, ; Eastern-Central Motor Carriers Association v. United States, ; State of North Carolina v. United States, ; State of Alabama , 352] v. United States, . Not one of these cases involved an order having a reach comparable to the reach of the order now before us. We are asked to sustain an order that readjusts the class rates of the whole country barring only the territory west of the Rockies-an order that changes not only the rates within the various rate territories in this vast region, but changes the relation of the rates inter-territorially. I am not unmindful of the complicated nature of the problem which confronted the Commission, of the empiric character of the process of rate-making, of the limited scope for judicial review in this process, of the respect to be accorded to the Commission's conclusions. Board of Trade of Kansas City, Mo. v. United States, . But when the outcome of legal issues is bound to cut deeply into economic relations on such a scale, it is not asking too much to ask the Commission to be explicit and definite in its findings on the elements that are indispensable to the validity of its order. When inter-territorial discrimination is complained of, at least two basic issues confront the Commission: (1) Is there discrimination? (2) If there is, how is the discrimination to be abated? The Commission cannot eliminate discrimination-i.e., harmonize the rate relations between territories-in disregard of the reasonableness of the readjusted rates within each territory. The Interstate Commerce Act must be applied in its entirety and the different sections which make an articulated whole cannot be treated disjointedly. Such is the teaching of our cases, especially of Texas & Pacific R. Co. v. Abilene Cotton Oil Co., Ann.Cas. 1075, and Intermountain Rate Cases (United States v. Atchison, T. & S.F.R. Co.), -the two cases which beyond all others give the controlling considerations in construing the Interstate Commerce Act. And so the Commission is not empowered to remoe discrimi nation between two territories without at the same time considering whether the remedies proposed for such , 353] removal fit the requirement of reasonableness of rates. It may not lower the rates in a territory beyond the level which gives the carriers an income sufficient to enable them to operate effectively as part of the nation's transportation system. And the Commission may not raise rates to a leval which would exact freight charges from shippers beyond a rate structure that is reasonable. The small proportion of freight that moves on class rates is no measure of the importance of those rates to the total earnings of carriers. Unreasonable rates-whether unreasonably high or unreasonably low-even on a fraction of the freight, may make the difference between earnings to which carriers are entitled under the Interstate Commerce Act and those to which they are not entitled for discharging their duty as part of the national transportation system. We are without informing findings on these issues. But even if one were to consider questions of discrimination is isolation, inequality-the essence of discrimination-cannot be dealt with mechanically by taking a percentage off one territory and adding it to another. The Procrustean bed is not a symbol of equality. It is no less inequality to have equality among unequals. The findings do not reveal how it happened that putting 10% on and taking 10% off respectively will beget just the right adjustment. I am not suggesting that one might not dig out of the record inexplicit, argumentative support for the view that an increase of 10% in Official Classification Territory rates will still leave the level of rates within that Territory not unreasonable, and that a decrease of 10% in Western Territory will leave the carriers the required reasonableness of rates within that Territory. But it is not conducive to a fair administration of the Interstate Commerce Act, nor is it consonant with the proper discharge of this Court's task, to require us to dig out indications or evidence giving appropriate answer to these issues from a record consisting of nearly 13,000 pages spread over , 354] 21 volumes, which led to a report by the Commission of 320 pages. The District Court acknowledged the absence of finding on such issues. Said the court: 'it has been argued that there can be no increase in class rates in Official Territory unless there is first a so-called primary finding, supported by substantial evidence that the present rates are not compensatory. While that fact, if proved, would have been of much significance, the failure to prove it and the consequent lack of a finding that present rates are confiscatory does not leave the Commission's finding that the rates are unlawful unsupported by substantial evidence.' 65 F.Supp. 856, 873. But the fact that the rates in Official Territory may, as a matter of abstract comparison, be out of line with the rates in Western or Southern Territory is hardly proof that the rates in Official Territory should be increased by the same flat percentage as the rates in the other territories should be decreased. Such a flat increase in Official Territory may make the proposed new rates unlawful because unreasonable. While a 10% decrease in rates in Western Territory may eliminate unfairness to shippers in that territory, it does not follow that a corresponding 10% increase in Official Territory rates will not result in unfairness to shippers there. One can hardly read the concurring and dissenting views to the Commission's Report without being left with uncertainty regarding the basis of the Commission's order.'The report does not show, except in nebulous fashion, that the cost figures represent apportionment of totals, based on estimates; that they involve many assumptions and acts of judgment; and are not computations from direct, original cost figures for particular movements. These, however, are thefacts. It omits evidence showing that 59 out of 117 items of basic data used n the stud ies were estimated, and that 458 out of 500 sequences were wholly or partly estimated. , 355] It fails to disclose clearly that when making the studies it was assumed that the consist of the traffic is the same in the different territories, when the fact is, as I have pointed out, that the traffic consist differs widely in the respective territories. The result is that theoretical costs are produced, based upon assumptions which are not facts, and upon comparisons of unlike things.' (Commissioner Porter, dissenting, 262 I.C.C. 447, 709, 717; and see dissenting views of Commissioner Barnard, Id. at 725.) According to two of the Commissioners the record is wholly inadequate to support a finding that class rates within Official Territory are unreasonable under 1 of the Act. See 264 I.C.C. 69, 70. Certainly the Commission did not make an explicit finding that they are unreasonable. If there is any such finding it must be sought for as would a needle in a haystack. The Commission's order ought not to be allowed to rest on such dubious foundations. Nor can such a mechanical or abstractly mathematical readjustment of rates interterritorially be justified as a tentative adjustment. Of course, the Commission may generalize a sufficient number of typical instances and make a flat readjustment within a territory, leaving instances of unreasonableness to be taken out of such an order upon individual application. This is what the Commission did, and what this Court sustained, in the New England Divisions Case (Akron, C. & Y.R. Co. v. United States), . The order in that case, directing a 15% increase in the share of the New England railroads in the joint throughfreight rates, was based upon evidence 'which the Commission assumed was typical in character, and ample in quantity, to justify the finding made in respect to each division of each rate of every carrier.' at pages 196, 197, 43 S.Ct. at page 275. The Court found that the established practice in rate litigation, the nature of the hearing before the Commission, the evidence submitted, the findings made, the opportunities to , 356] apply for modifications in typical situations, amply supported the Commission's findings. The present record, as reflected in the Commission's report, does not present a comparable situation. One gets the impression that the adjustment of a flat 10% decrease in the rates outside the Official Territory and a flat increase of 10% within that Territory is attributable, fundamentally, to a laudable desire on the part of the Commission to secure uniform classification throughout the country. The Commission was not prepared to make such a classification, but it made these rate changes in the hope that they would exert pressure on the carriers to agree upon a uniform classification. It is in relation to that hope that it is urged that the order is merely a conditional or tentative order-conditioned upon agreement by the carriers upon a uniform classification. But to condition the order on the realization of that hope is to condition it, if experience be any guide, on the Greek kalends. What this Court said in United States v. Chicago, Milwaukee, St. Paul & Pacific R. Co., , 511, 467, involving a rate adjustment within a very limited territory, with no such far-reaching consequences as the order now under review, has enhanced applicability to the present order of the Commission. 'We would not be understood as saying that there do not lurk in this report phrases or sentences suggestive of a different meaning. One gains at places the impression that the commission looked upon the proposed reduction ( initiated by a carrier) as something more than a disruptive tendency * * *. The difficulty is that it has not siad so with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose betwee conflicti ng inferences. Something more precise is requisite in the quasi jurisdictional findings of an administrative agency. Beaumont, S.L. & W. Ry. Co. v. United States, , (6); ( State of) Florida v. , 357] United States, , (125). We must know what a decision means before the duty becomes ours to say whether it is right or wrong.' Administrative experts no doubt have antennae not possessed by courts charged with reviewing their action. And so it may well be that to the expert feel the justifiable correction of an imbalance between Official Territory rates and the rates of other territories is a shift of 10% in the respective rates-Official Territory rates increased 10% and rates elsewhere decreased 10%. But courts charged as they are with the review of the action of the Commission, ought not to be asked to sustain such a mathematical coincidence as a matter of unillumined faith in the conclusion of the experts. I would reverse the decree and order the proceedings returned to the Interstate Commerce Commission. Mr. Justice JACKSON, dissenting. I find it impossible to agree with this extraordinary decision. I will discuss but one of its phases-that which is treated in subdivision Eighth of the Court's opinion. This holds that the Interstate Commerce Commission has, and rightfully has exercised, the power to add 10% to certain basic freight rates affecting the Northeastern part of the United States. This increase was not asked by the railroads, goes to the prosperous and the insolvent ones alike, and is not even claimed to be necessary to pay the cost of service and a fair return on the property used in rendering it. This additional assessment is in no sense compensation for handling the traffic which the railroads concede was adequately compensated before. It is really a surtax, see Brandeis, J., in New England Divisions Case (Akron, C. & Y.R. Co. v. United States), , 275, added solely to increase shipping costs in the Northeastern part of the United States for the purpose of handicapping its economy and in order to make transportation cost as much there as it does in areas where there , 358] is less traffic to divide the cost. The surcharge bundens the territory where fifty percent of the consuming population of the United States resides by adding an estimated $15,000,000 per year to its shipping bills. It adds that muh to the r evenues of the Northeastern railroads with no showing or finding that it is needed to meet costs of furnishing railroad service. The most important reason advanced for sustaining this order is the claim that this surcharge is to cure a discrimination in favor of the Northeastern territory against the South and West. Briefly and generally, the discrimination is said to consist in this: Mile for mile, a higher average charge is made for transportation under the present classifications in the more sparsely settled areas of the South and West than is more in the denser traffic regions of the Northeast. Why, then, should not the alleged discrimination be removed by lowering the high rates of the South and West? The answer is that they cannot be reduced further than the ten percent already ordered in this proceeding, because the railroads of the South and West, in view of their costs, could not bear further decrease. So the only other way of equalizing the rates and making it as costly to move goods there as anywhere in the United States, is to make the shippers in the Northeastern territory pay the railroads this additional 10% which they have not asked and do not need. The Court's approval of this order is based on an entirely new theory of 'discrimination.' It has never before been thought to be an unlawful discrimination to charge more for a service which it cost more to render. Discrimination heretofore has been found to exist only when an unequal charge was exacted for a like service, or vice versa. But now it is held to be an unlawful discrimination if railroads of the Northeast do not make the same charge as other railroads in the South or West, for a different transportation under different cost conditions. , 359] The Government frankly advocates this new concept of discrimination as necessary to some redistribution of population in relation to resources that will reshape the nation's social, economic and perhaps its political life more nearly to its heart's desire. It says in its brief to us:'There is no direct relation between the distribution of natural resources and the distribution of population in the United States. It happens that some of the areas richest in natural resources in the United States are sparsely populated. If the raw materials making up those natural resources are to be converted into finished products in that vicinity, allowing the area some economic benefit from their conversion, it will be necessary to transport considerable volumes of finished goods for long distances. Necessarily minerals are obtained where the deposits occur, and agricultural products must be produced in areas of suitable soil and climate. It is the task of the transportation system to carry commodities from points of production to consuming centers throughout the United States and to the ports for export. The more freely and cheaply the products are carried, the more competition there will be, the more production there will be, and the better will our transportation system serve our national economy.'The maintenance of a sound national economy requires the proper use of natural resources to insure reasonable economic opportunity of a stable nature for the people in each of the regions of the country. As indicated, population distribution is not in accord with the distribution of natural resources, and it would inquire many years for people to move to where these resources are, assuming it possible to induce such millions to migrate, or that it would be wise policy to do so even if possible. There are also areas of one-crop agriculture in which the people face read- , 360] justments to restore and protect the land and to obtain additional sources of livelihood.'In view of all this, one of the basic principles in making freight rates should be the elimination of rate barriers against regional development, not to charge our economy, but to remove discriminatory conditions which unfairly and unlawfully prevent the possibility of change.' TheCourt's en tire discussion of the discrimination feature of this case is an acceptance of the Government's position without which the last support for this order would fail. No authority can be found in any Act of Congress for the imposition of this surcharge on the Northeast solely to penalize it for being able to transport goods cheaper due to its density of population and volume of traffic. The policy of Congress remains as it long has stood: 'adequate and efficient railway transportation service at the lowest cost consistent with the furnishing of such service.' Interstate Commerce Act, 15a(2), 48 Stat. 220, 54 Stat. 912, 49 U.S.C. 15a(2), 49 U.S.C.A. 15a(2). Congress has never intimated, much less declared a purpose to deprive the territory in which fifty percent of the nation's consumers reside of the benefit of this policy. The Ramspeck resolution did no more than to direct the Commission's attention to earnest complaints that the South and West were being mistreated in the matter of rail rates, and very properly to direct that they determine such complaints on their merits. True, in 1940 the provision prohibiting undue prejudice and preference was amended by the addition of 'region, district, territory,' to the list of persons or things not to be unduly prejudiced or preferred. Transportation Act, 1940 , 5(a), 54 Stat. 902, 49 U.S.C. 3(1), 49 U.S.C.A. 3(1). But the Act already prohibited undue prejudice or preference to any 'locality' and it is conceded that , 361] the 1940 Act made no change in the substantive law of discrimination. Senator Wheeler, Chairman of the Interstate Commerce Committee of the Senate, showed clearly that while it would 'make toward the equalization of rates,' 84 Cong.Rec. 6072, it was not intended to accomplish what is here attempted. The following colloquy occurred:'Mr. Frazier. Is it the expectation of the committee that by the amendment in section 52 (now section 5(b) of the Act) the rates in the various classification territories will be equalized or made the same in different territories?'Mr. Wheeler. I do not think that is possible.'Mr. Frazier. I do not see how it is possible. I was wondering what the intention was.'Mr. Wheeler. It is not possible for a number of reasons. For example, it costs more to carry freight over the mountains in two trains than to carry it on the plains in one train. Likewise, we must recognize the fact that railroad transportation service and rates depend somewhat on the intensity of the traffic. In long stretches of territory with no traffic, shippers must pay more for railroad service than do shippers in a densely settled part of country where traffic is plentiful and where there is much competition from busses, trucks, and things of that kind. However, it seems to me from my study of the question that apparent inequalities ought to be corrected. * * *'Mr. Frazier. In North Dakota we have a large volume of wheat to transport in the fall of the year, and because we have that large volume, and because our territory is practically level, we have a rather beneficial rate on wheat as compared with some other territories. Our railroad commission and traffic experts are afraid that the provision to which reference , 362] has been made will take that special rate away from us.'Mr. Wheeler. I believe this provision will help the people of the Senator's State rather than harm them in many respects.'Mr. Frazier. We have a much lower rate than prevails in many other sections of the country. If rates are to be equalized, it will mean raising our rates.'Mr. Wheeler. The bill does not mean that rates are to be equalized . * * * The people of the Senator's State might just as well disabuse their minds of the fear that as a result of the bill they will lose any benefit which they now have. * * *' (84 Cong.Rec. 5890.) The Court never before has confided to any regulatory body the reshaping of our national economy. In Texas & Pacific R. Co. v. United States, S.Ct . 768, 772, the following statement of the law was made: 'A tariff published for the purpose of destroying a market or building up one, of diverting traffic from a particular place to the injury of that place, or in aid of some other, is unlawful; and, obviously, what the carrier may not lawfully do, the Commission may not compel.' at page 637, 53 S.Ct. at apge 772. See also Southern Pacific Co. v. I.C.C., ; I.C.C. v. Diffenbaugh, , 24; United States v. Illinois Central R. Co., , 193. The Interstate Commerce Commission also accepted this as the law. In Stoves, Ranges, Boilers, etc., 182 I.C.C. 59, the majority said, 'It is not within our power to equalize natural disadvantages of locations,' 182 I.C.C. at 68, the Commissioner Eastman was even more explicit, saying, 182 I.C.C. at 74:'However, it is undeniable, I think, that in the past both southern manufacturers and southern car- , 363] riers have shows a tendency to demand that the rates to the North be equalized in level with those within the North, on the ground that such equalization is commercially essential to the southern industries. It is a sufficient answer to say that it is not our province to equalize commercial conditions. However, the evidence in this case has served a useful purpose in making it quite clear that the southern manufacturers have certain advantages over their northern rivals, so far as operating and overhead costs are concerned, which would have to be taken into consideration if it were our duty to equalize commercial conditions through an adjustment of freight rates.' The Court shrouds this simple legal issue as to whether there is power to levy this surtax on the Northeast, in elaborate discussions of the evils of existing freight classifications and affirmations of the Commission's power to correct them. Neither of these propositions have ever been in doubt. But what importance can the Commission's power over classifications have in testing validity of this order? To correct classification was the asserted object of this proceeding, but that power has not been exercised at all. Not one classification is changed. Instead, a flat boost is made against traffic in the Northeast and a flat reduction for traffic in the South and West is ordered, leaving every inequality, discrimination, injustice or illegality in classifications just where the Commission found them. If there is proof of specific discrimination, injustice and illegalities in this case, why are they not now ordered corrected? If there is not sufficient proof of any specific discrimination, how can we hold that there is a general discrimination so extensive as to warrant this levy on the Northeast to correct them? Perhaps the most incomprehensible of the Court's grounds for sustaining this order is that we do not have , 364] here a 'revenue problem.' It is admitted that the Northeastern rates before increase are not proved nor found by the Commission to be noncompensatory to the railroads, or otherwise wise to threaten harmful effects upon the revenues and transportation efficiency of the carriers who get the increase. It also is admitted that the absence of such proof and findings might be fatal to this increased rate, for 'If this were a case of determining whether existing rates passed below the lowest or above the highest reaches of reasonableness, the point might be well taken.' Can the label affixed to a proceeding make legal what under another label would be invalid? Because the proceeding professes to correct classifications, a purpose now long and indefinitely deferred, may it be used incidentally to raise the rates of the whole Northeastern territory without any showing of need therefor? Whether we call the case a 'revenue case' or something else, and whether we decline to denominate the problem a 'revenue problem' and style it someting else, the order under review is a revenue order and nothing else. It adds 10% to the revenues of the Northeastern roads from traffic moving under the rates in question; it knocks 10% off from the Southern and Western traffic under them. It exacts for the railroads added revenues; it lays on shippers the burden of providing those added revenues. This order admittedly might be invalid if the increased revenue were given to the railroads because they had made a claim to need it, and had only the present evidence and findings to support an allowance of their claim. So the conclusion is that the order is valid only because the railroads have no revenue problem and have not made a case entitling them to increased revenue. That is all I can get from the answer that it is a valid order only because 'we do not have here such a revenue problem.' , 365] I long have heard the complaint that freight rates discrimination against the South. I have been inclined to suspect it to be true and have hoped to see an impartial and exhaustive study and decision on the subject. But this case does not meet that description. The student of economics will be puzzled at the Court's citation of the fact that the average employed person in the South earns only half as much as those in the Northeast as being in some way attributable to these freight rates. And the student of the judicial process will find instruction in the contrast between today's decision and that of Interstate Commerce Commission v. Mechling, in its regard for inherent advantages, in its attitude to 'unsifted' averages as a basis for raising rates and in its deference to the administrative expertise of the Interstate Commerce Commission. I am not unaware of the difficult position in which the Interstate Commerce Commission finds itself in cases of this character. Commissioner Eastman gave voice to it in dissent in State of Alabama v. New York Central R. Co., 235 I.C.C. 255, 333, as follows:'The Commission is called upon to decide this case, on the record, after it had in effect been decided, in advance and without regard to the record, by many men in public life, of high and low degree, who have freely proclaimed their views on what they conceive to be the basic issues. Their thesis has been that the section of our country generally known as the South is our 'Economic Problem No. 1', because, among other things, it is low in industrial development, and that a major reason for this condition has been and is an unfair adjustment of freight rates which has favored the producers of the North and burdened those of the South. It has become a political issue. While, however, the South gave birth to , 366] the issue, public representatives of the West now cry out against like supposed oppression, and public representatives of the North or East, as it is variously called, have risen in defense of their section.'Under such conditions, it is not easy to decide the case without being influenced by emotional reactions, one way or the other, which should play no part in the decision.' But by administrative succession and judicial fiat the regulatory power of the Federal Government over commerce is now used to force a surtax on transportation of one section of the country admittedly not needed to compensate the railroad for the carriage but to take away from its inhabitants one of the advantages inherent in its density of population, regardless of the disadvantages which density of population also causes. The observation of Commissioner Mahaffie in this case seems to me appropriate and accurate:'* * * In a country so vast as this with its widely varied resources and differing transportation needs it seems to me a mistake to try to compel general equality in rates except to the extent equality is justified by transportation conditions. I think the effort to do so must necessarily fail. But I am afraid the process of finding out whether it can be done will be painful and costly. The prejudice finding on which the new adjustment is largely predicated are calculated, if carried to a logical conclusion, to lead to a rigid rate structure based on mileage. While this may seem on its face to be equitable its accomplishment would entail radical industrial and agricultural readjustments. I doubt if the country should be required to incur the expense of making them.' (262 I.C. C. at 708.) Mr. Justice FRANKFURTER joins in this opinion. |
8 | Appellee was charged with first-degree sexual offenses under Nebraska law. His pretrial requests for bail were denied by state courts pursuant to a provision of the Nebraska Constitution prohibiting bail in cases of first-degree sexual offenses "where the proof is evident or the presumption is great" (which appellee conceded). Pending trial, appellee filed suit in Federal District Court under 42 U.S.C. 1983 (1976 ed., Supp. V), seeking declaratory and injunctive relief on the ground that the Nebraska constitutional provision violated his federal constitutional rights under the Sixth, Eighth, and Fourteenth Amendments. On October 17, 1980, the District Court dismissed appellee's civil rights complaint. In the meantime, however, appellee had been convicted of two of the three charges against him in state-court prosecutions, and on November 13, 1980, he was convicted of the remaining charge. Appellee appealed these convictions to the Nebraska Supreme Court, and the appeals are pending before that court. On May 13, 1981, the Court of Appeals reversed, holding that the exclusion of violent sexual offenses from bail before trial violates the Excessive Bail Clause of the Eighth Amendment.Held: Appellee's constitutional claim became moot following his state-court convictions. A favorable decision on his claim to pretrial bail would not have entitled him to bail once he was convicted. And he did not pray for damages or seek to represent a class of pretrial detainees in his federal-court action. Nor does this case fall within the "capable of repetition, yet evading review" exception to the general rule of mootness when the issues are no longer "live" or the parties lack a legally cognizable interest in the outcome of the case. Application of this exception depends upon a "reasonable expectation" or "demonstrated probability" that the same controversy will recur involving the same complaining party. There is no reasonable expectation that all of appellee's convictions will be overturned on appeal and that he will again be in the position to seek pretrial bail. 648 F.2d 1148, vacated and remanded. Terry R. Schaaf, Assistant Attorney General of Nebraska, argued the cause for appellant. With him on the brief was Paul L. Douglas, Attorney General.Bennett G. Hornstein argued the cause and filed a brief for appellee.* [Footnote *] Briefs of amici curiae urging reversal were filed by James P. Manak, G. Joseph Bertain, Jr., Lloyd F. Dunn, George Nicholson, Robert L. Toms, Donald E. Santarelli, Jack Yelverton, George Deukmejian, Attorney General of California, and Richard S. Gebelein, Attorney General of Delaware, for Laws at Work (L. A. W.) et al.; and by Daniel J. Popeo and Paul D. Kamenar for the Washington Legal Foundation. Briefs of amici curiae urging affirmance were filed by Irvin B. Nathan and David P. Towey for the American Civil Liberties Union; by David Crump for the Legal Foundation of America; by Sheldon Portman for the National Legal Aid and Defender Association et al.; and by Quin Denvir and David R. Lipson for the Public Defender of California.PER CURIAM.Appellee Hunt was charged with first-degree sexual assault on a child and three counts of first-degree forcible sexual assault. He appeared on these charges in Omaha Municipal Court where his request for bail was denied.1 On May 23, 1980, a bail review hearing was held in Douglas County District Court. Relying on Art. I, 9, of the Nebraska Constitution, Judge Murphy, appellant here, denied Hunt's second application for bail.2 That section of the Nebraska Constitution provides in relevant part: "All persons shall be bailable ... except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great." For purposes of his application for bail, Hunt's counsel stipulated that, in this case, "the proof [was] evident and the presumption [was] great."On June 9, 1980, pending trial on the charges against him, Hunt filed a complaint under 42 U.S.C. 1983 (1976 ed., Supp. V) in the United States District Court for the District of Nebraska. He claimed that Art. I, 9, of the State Constitution, limiting bail in cases of first-degree sexual offenses, violated his federal constitutional rights to be free from excessive bail and cruel and unusual punishment, to due process and equal protection of the laws, and to the effective assistance of counsel under the Sixth, Eighth, and Fourteenth Amendments. He sought declaratory and injunctive relief only. On October 17, 1980, the District Court dismissed Hunt's civil rights complaint. Hunt appealed to the Court of Appeals for the Eighth Circuit.Meanwhile, the prosecutions against Hunt had proceeded. On September 10, 1980 - even prior to the District Court decision - and November 5, 1980, he was found guilty of two of the three first-degree forcible sexual assault charges against him. On November 13, 1980, he was sentenced to consecutive terms of 8-15 years in prison for these offenses.3 On October 8, 1980, again prior to the decision of the District Court, Hunt was convicted of first-degree sexual assault on a child. On December 11, 1980, he was sentenced to 12-15 years in prison on this charge. Hunt appealed each of these convictions to the Nebraska Supreme Court and each of these appeals remains pending before that court.On May 13, 1981, the Court of Appeals for the Eighth Circuit decided Hunt's appeal from the dismissal of his 1983 claim. Hunt v. Roth, 648 F.2d 1148 (1981). The court reversed the District Court and held that the exclusion of violent sexual offenses from bail before trial violates the Excessive Bail Clause of the Eighth Amendment of the United States Constitution.4 Because we find that Hunt's constitutional claim to pretrial bail became moot following his convictions in state court, we now vacate the judgment of the Court of Appeals.In general a case becomes moot "`when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" United States Parole Comm'n v. Geraghty, , quoting Powell v. McCormack, . It would seem clear that under this general rule Hunt's claim to pretrial bail was moot once he was convicted.5 The question was no longer live because even a favorable decision on it would not have entitled Hunt to bail. For the same reason, Hunt no longer had a legally cognizable interest in the result in this case. He had not prayed for damages nor had he sought to represent a class of pretrial detainees.We have recognized an exception to the general rule in cases that are "capable of repetition, yet evading review." In Weinstein v. Bradford, (per curiam), we said that "in the absence of a class action, the `capable of repetition, yet evading review' doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." See Illinois Elections Bd. v. Socialist Workers Party, ; Sosna v. Iowa, . Because the Nebraska Supreme Court might overturn each of Hunt's three convictions, and because Hunt might then once again demand bail before trial, the Court of Appeals held that the matter fell within this class of cases "capable of repetition, yet evading review."6 We reach a different conclusion.The Court has never held that a mere physical or theoretical possibility was sufficient to satisfy the test stated in Weinstein. If this were true, virtually any matter of short duration would be reviewable. Rather, we have said that there must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. Weinstein v. Bradford, supra, at 149. We detect no such level of probability in this case. All we know from the record is that Hunt has been convicted on three separate offenses and that his counsel was willing to stipulate that, for the purposes of Hunt's eligibility for bail, the proof of guilt was evident and the presumption great. Based on these two facts, we cannot say that there exists a "reasonable expectation" or "demonstrated probability" that Hunt will ever again be in this position. There is no reason to expect that all three of Hunt's convictions will be overturned on appeal.7 Hunt's willingness to stipulate that the proof against him was "evident" does not encourage us to believe otherwise.Nor is Nebraska Press Assn. v. Stuart, , relied upon by the Court of Appeals, to the contrary. In that case we held that the constitutionality of a pretrial restrictive order, entered prior to a criminal trial and that expired once the jury was impaneled, was not moot even though the order had long since expired. The Court found that the controversy between the parties was "capable of repetition" because the defendant's conviction might be overturned on appeal, requiring a new trial and possibly a new restrictive order, and because the dispute between the Nebraska Press Association and the State of Nebraska as to the use of restrictive orders was likely to recur in future criminal trials. It was the combination of these elements, both of which were capable of repetition, that permitted the Court to conclude that the matter was not moot under the standard stated in Weinstein.8 There is no comparable set of expectations in this case. We have no reason to believe that Hunt will once again be in a position to demand bail before trial.Accordingly, we find that the case presented is now moot. Indeed, it was moot at the time of the decisions of both the District Court and the Court of Appeals. The judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with instructions that the complaint be dismissed. So ordered. |
1 | Burke County, Ga., a large, predominately rural county, has an at-large system for electing members of its governing Board of Commissioners. No Negro has ever been elected to the Board. Appellee black citizens of the county filed a class action in Federal District Court, alleging that the at-large system of elections violated, inter alia, appellees' Fourteenth and Fifteenth Amendment rights by diluting the voting power of black citizens. Finding that blacks have always made up a substantial majority of the county's population but that they are a minority of the registered voters, that there had been bloc voting along racial lines, and that past discrimination had restricted the present opportunity of blacks to participate effectively in the political process, the District Court held that although the state policy behind the at-large electoral system was "neutral in origin," the policy was being maintained for invidious purposes in violation of appellees' Fourteenth and Fifteenth Amendment rights. The court then ordered the county to be divided into districts for purposes of electing County Commissioners. The Court of Appeals affirmed, holding that the District Court properly required appellees to prove that the at-large system was maintained for a discriminatory purpose, that the District Court's findings were not clearly erroneous, and that its conclusion that the at-large system was maintained for invidious purposes was "virtually mandated by the overwhelming proof."Held: 1. The Court of Appeals did not err in concluding that the District Court applied the proper legal standard, where it appears that the District Court demonstrated its understanding of the controlling standard by observing that a determination of discriminatory intent was "a requisite to a finding of unconstitutional vote dilution" under the Fourteenth and Fifteenth Amendments. Pp. 616-622. 2. Where neither the District Court's ultimate findings of intentional discrimination nor its subsidiary findings of fact appear to be clearly erroneous and such findings were agreed to by the Court of Appeals, this Court will not disturb the findings. Pp. 622-627. 3. Nor is there any reason to overturn the relief ordered by the District Court, where neither that court nor the Court of Appeals discerned any special circumstances that would militate against utilizing single-member districts. Pp. 627-628. 639 F.2d 1358, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. POWELL, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 628. STEVENS, J., filed a dissenting opinion, post, p. 631.E. Freeman Leverett argued the cause for appellants. With him on the briefs was Preston B. Lewis.David F. Walbert argued the cause for appellees. With him on the brief were Robert W. Cullen, Laughlin McDonald, Christopher Coates, and Neil Bradley.* [Footnote *] Briefs of amici curiae urging affirmance were filed by Arthur Kinoy and Robert Boehm for the Center for Constitutional Rights; by Marvin S. Arrington, Bobby L. Hill, John R. Myer, and Margrett Ford for the Georgia Association of Black Elected Officials et al.; by William L. Robinson and Frank R. Parker for the Lawyers' Committee for Civil Rights Under Law; and by Jack Greenberg, James M. Nabrit III, and Lani Guinier for the NAACP Legal Defense and Educational Fund, Inc., et al.JUSTICE WHITE delivered the opinion of the Court.The issue in this case is whether the at-large system of elections in Burke County, Ga., violates the Fourteenth Amendment rights of Burke County's black citizens.IBurke County is a large, predominately rural county located in eastern Georgia. Eight hundred and thirty-one square miles in area,1 it is approximately two-thirds the size of the State of Rhode Island. According to the 1980 census, Burke County had a total population of 19,349, of whom 10,385, or 53.6%, were black.2 The average age of blacks living there is lower than the average age of whites and therefore whites constitute a slight majority of the voting age population. As of 1978, 6,373 persons were registered to vote in Burke County, of whom 38% were black.3 The Burke County Board of Commissioners governs the county. It was created in 1911, see 1911 Ga. Laws 310-311, and consists of five members elected at large to concurrent 4-year terms by all qualified voters in the county. The county has never been divided into districts, either for the purpose of imposing a residency requirement on candidates or for the purpose of requiring candidates to be elected by voters residing in a district. In order to be nominated or elected, a candidate must receive a majority of the votes cast in the primary or general election, and a runoff must be held if no candidate receives a majority in the first primary or general election. Ga. Code 34-1513 (Supp. 1980). Each candidate must run for a specific seat on the Board, Ga. Code 34-1015 (1978), and a voter may vote only once for any candidate. No Negro has ever been elected to the Burke County Board of Commissioners.Appellees, eight black citizens of Burke County, filed this suit in 1976 in the United States District Court for the Southern District of Georgia. The suit was brought on behalf of all black citizens in Burke County. The class was certified in 1977. The complaint alleged that the county's system of at-large elections violates appellees' First, Thirteenth, Fourteenth, and Fifteenth Amendment rights, as well as their rights under 42 U.S.C. 1971, 1973, and 1983, by diluting the voting power of black citizens. Following a bench trial at which both sides introduced extensive evidence, the court issued an order on September 29, 1978, stating that appellees were entitled to prevail and ordering that Burke County be divided into five districts for purposes of electing County Commissioners. App. to Juris. Statement 62a. The court later issued detailed findings of fact and conclusions of law in which it stated that while the present method of electing County Commissioners was "racially neutral when adopted, [it] is being maintained for invidious purposes" in violation of appellees' Fourteenth and Fifteenth Amendment rights. Id., at 71a, 96a.The Court of Appeals affirmed. Lodge v. Buxton, 639 F.2d 1358 (CA5 1981). It stated that while the proceedings in the District Court took place prior to the decision in Mobile v. Bolden, , the District Court correctly anticipated Mobile and required appellees to prove that the at-large voting system was maintained for a discriminatory purpose. 639 F.2d, at 1375-1376. The Court of Appeals also held that the District Court's findings were not clearly erroneous, and that its conclusion that the at-large system was maintained for invidious purposes was "virtually mandated by the overwhelming proof." Id., at 1380. We noted probable jurisdiction, , and now affirm.4 IIAt-large voting schemes and multimember districts tend to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district. A distinct minority, whether it be a racial, ethnic, economic, or political group, may be unable to elect any representatives in an at-large election, yet may be able to elect several representatives if the political unit is divided into single-member districts. The minority's voting power in a multimember district is particularly diluted when bloc voting occurs and ballots are cast along strict majority-minority lines. While multimember districts have been challenged for "their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party," Whitcomb v. Chavis, , this Court has repeatedly held that they are not unconstitutional per se. Mobile v. Bolden, supra, at 66; White v. Regester, ; Whitcomb v. Chavis, supra, at 142. The Court has recognized, however, that multimember districts violate the Fourteenth Amendment if "conceived or operated as purposeful devices to further racial discrimination" by minimizing, cancelling out or diluting the voting strength of racial elements in the voting population. Whitcomb v. Chavis, supra, at 149. See also White v. Regester, supra, at 765. Cases charging that multimember districts unconstitutionally dilute the voting strength of racial minorities are thus subject to the standard of proof generally applicable to Equal Protection Clause cases. Washington v. Davis, , and Arlington Heights v. Metropolitan Housing Dev. Corp., , made it clear that in order for the Equal Protection Clause to be violated, "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, supra, at 240. Neither case involved voting dilution, but in both cases the Court observed that the requirement that racially discriminatory purpose or intent be proved applies to voting cases by relying upon, among others, Wright v. Rockefeller, , a districting case, to illustrate that a showing of discriminatory intent has long been required in all types of equal protection cases charging racial discrimination. Arlington Heights, supra, at 265; Washington v. Davis, supra, at 240.5 Arlington Heights and Washington v. Davis both rejected the notion that a law is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than another. Arlington Heights, supra, at 265; Washington v. Davis, 426 U.S., at 242. However, both cases recognized that discriminatory intent need not be proved by direct evidence. "Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another." Ibid. Thus determining the existence of a discriminatory purpose "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights, supra, at 266.In Mobile v. Bolden, supra, the Court was called upon to apply these principles to the at-large election system in Mobile, Ala. Mobile is governed by three commissioners who exercise all legislative, executive, and administrative power in the municipality. 446 U.S., at 59. Each candidate for the City Commission runs for one of three numbered posts in an at-large election and can only be elected by a majority vote. Id., at 59-60. Plaintiffs brought a class action on behalf of all Negro citizens of Mobile alleging that the at-large scheme diluted their voting strength in violation of several statutory and constitutional provisions. The District Court concluded that the at-large system "violates the constitutional rights of the plaintiffs by improperly restricting their access to the political process," Bolden v. Mobile, 423 F. Supp. 384, 399 (SD Ala. 1976), and ordered that the commission form of government be replaced by a mayor and a nine-member City Council elected from single-member districts. Id., at 404. The Court of Appeals affirmed. 571 F.2d 238 (CA5 1978). This Court reversed.Justice Stewart, writing for himself and three other Justices, noted that to prevail in their contention that the at-large voting system violates the Equal Protection Clause of the Fourteenth Amendment, plaintiffs had to prove the system was "`conceived or operated as [a] purposeful devic[e] to further racial ... discrimination.'" 446 U.S., at 66, quoting Whitcomb v. Chavis, supra, at 149.6 Such a requirement "is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment," 446 U.S., at 66, and White v. Regester is consistent with that principle. 446 U.S., at 69. Another Justice agreed with the standard of proof recognized by the plurality. Id., at 101 (WHITE, J., dissenting).The plurality went on to conclude that the District Court had failed to comply with this standard. The District Court had analyzed plaintiffs' claims in light of the standard which had been set forth in Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973), aff'd on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, (per curiam).7 Zimmer set out a list of factors8 gleaned from Whitcomb v. Chavis, supra, and White v. Regester, supra, that a court should consider in assessing the constitutionality of at-large and multimember district voting schemes. Under Zimmer, voting dilution is established "upon proof of the existence of an aggregate of these factors." 485 F.2d, at 1305.The plurality in Mobile was of the view that Zimmer was "decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause - that proof of a discriminatory effect is sufficient." 446 U.S., at 71. The plurality observed that while "the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose," the mere existence of those criteria is not a substitute for a finding of discriminatory purpose. Id., at 73. The District Court's standard in Mobile was likewise flawed. Finally, the plurality concluded that the evidence upon which the lower courts had relied was "insufficient to prove an unconstitutionally discriminatory purpose in the present case." Ibid. JUSTICE STEVENS rejected the intentional discrimination standard but concluded that the proof failed to satisfy the legal standard that in his view was the applicable rule. He therefore concurred in the judgment of reversal. Four other Justices, however, thought the evidence sufficient to satisfy the purposeful discrimination standard. One of them, JUSTICE BLACKMUN, nevertheless concurred in the Court's judgment because he believed an erroneous remedy had been imposed.Because the District Court in the present case employed the evidentiary factors outlined in Zimmer, it is urged that its judgment is infirm for the same reasons that led to the reversal in Mobile. We do not agree. First, and fundamentally, we are unconvinced that the District Court in this case applied the wrong legal standard. Not only was the District Court's decision rendered a considerable time after Washington v. Davis and Arlington Heights, but the trial judge also had the benefit of Nevett v. Sides, 571 F.2d 209 (1978), where the Court of Appeals for the Fifth Circuit assessed the impact of Washington v. Davis and Arlington Heights and held that "a showing of racially motivated discrimination is a necessary element in an equal protection voting dilution claim ... ." 571 F.2d, at 219. The court stated that "[t]he ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the districting plan under attack exists because it was intended to diminish or dilute the political efficacy of that group." Id., at 226. The Court of Appeals also explained that although the evidentiary factors outlined in Zimmer were important considerations in arriving at the ultimate conclusion of discriminatory intent, the plaintiff is not limited to those factors. "The task before the fact finder is to determine, under all the relevant facts, in whose favor the `aggregate' of the evidence preponderates. This determination is peculiarly dependent upon the facts of each case." 571 F.2d, at 224 (footnote omitted).The District Court referred to Nevett v. Sides and demonstrated its understanding of the controlling standard by observing that a determination of discriminatory intent is "a requisite to a finding of unconstitutional vote dilution" under the Fourteenth and Fifteenth Amendments. App. to Juris. Statement 68a. Furthermore, while recognizing that the evidentiary factors identified in Zimmer were to be considered, the District Court was aware that it was "not limited in its determination only to the Zimmer factors" but could consider other relevant factors as well. App. to Juris. Statement 70a. The District Court then proceeded to deal with what it considered to be the relevant proof and concluded that the at-large scheme of electing commissioners, "although racially neutral when adopted, is being maintained for invidious purposes." Id., at 71a. That system "while neutral in origin ... has been subverted to invidious purposes." Id., at 90a. For the most part, the District Court dealt with the evidence in terms of the factors set out in Zimmer and its progeny, but as the Court of Appeals stated:"Judge Alaimo employed the constitutionally required standard ... [and] did not treat the Zimmer criteria as absolute, but rather considered them only to the extent they were relevant to the question of discriminatory intent." 639 F.2d, at 1376. Although a tenable argument can be made to the contrary, we are not inclined to disagree with the Court of Appeals' conclusion that the District Court applied the proper legal standard.IIIAWe are also unconvinced that we should disturb the District Court's finding that the at-large system in Burke County was being maintained for the invidious purpose of diluting the voting strength of the black population. In White v. Regester, 412 U.S., at 769-770, we stated that we were not inclined to overturn the District Court's factual findings, "representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise." See also Columbus Board of Education v. Penick, (BURGER, C. J., concurring in judgment). Our recent decision in Pullman-Standard v. Swint, , emphasizes the deference Federal Rule of Civil Procedure 52 requires reviewing courts to give a trial court's findings of fact. "Rule 52(a) broadly requires that findings of fact not be set aside unless clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings ... ." 456 U.S., at 287. The Court held that the issue of whether the differential impact of a seniority system resulted from an intent to discriminate on racial grounds "is a pure question of fact, subject to Rule 52(a)'s clearly-erroneous standard." Id., at 287-288. The Swint Court also noted that issues of intent are commonly treated as factual matters. Id., at 288. We are of the view that the same clearly-erroneous standard applies to the trial court's finding in this case that the at-large system in Burke County is being maintained for discriminatory purposes, as well as to the court's subsidiary findings of fact. The Court of Appeals did not hold any of the District Court's findings of fact to be clearly erroneous, and this Court has frequently noted its reluctance to disturb findings of fact concurred in by two lower courts. See, e. g., Berenyi v. Information Director, ; Blau v. Lehman, ; Graver Tank & Mfg. Co. v. Linde Co., . We agree with the Court of Appeals that on the record before us, none of the factual findings are clearly erroneous.BThe District Court found that blacks have always made up a substantial majority of the population in Burke County, App. to Juris. Statement 66a, n. 3, but that they are a distinct minority of the registered voters. Id., at 71a-72a. There was also overwhelming evidence of bloc voting along racial lines. Id., at 72a-73a. Hence, although there had been black candidates, no black had ever been elected to the Burke County Commission. These facts bear heavily on the issue of purposeful discrimination. Voting along racial lines allows those elected to ignore black interests without fear of political consequences, and without bloc voting the minority candidates would not lose elections solely because of their race. Because it is sensible to expect that at least some blacks would have been elected in Burke County, the fact that none have ever been elected is important evidence of purposeful exclusion. See White v. Regester, supra, at 766.Under our cases, however, such facts are insufficient in themselves to prove purposeful discrimination absent other evidence such as proof that blacks have less opportunity to participate in the political processes and to elect candidates of their choice. United Jewish Organizations v. Carey, ; White v. Regester, supra, at 765-766; Whitcomb v. Chavis, 403 U.S., at 149-150. See also Mobile v. Bolden, 446 U.S., at 66 (plurality opinion). Both the District Court and the Court of Appeals thought the supporting proof in this case was sufficient to support an inference of intentional discrimination. The supporting evidence was organized primarily around the factors which Nevett v. Sides, 571 F.2d 209 (CA5 1978), had deemed relevant to the issue of intentional discrimination. These factors were primarily those suggested in Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973).The District Court began by determining the impact of past discrimination on the ability of blacks to participate effectively in the political process. Past discrimination was found to contribute to low black voter registration because, prior to the Voting Rights Act of 1965, blacks had been denied access to the political process by means such as literacy tests, poll taxes, and white primaries. The result was that "Black suffrage in Burke County was virtually non-existent." App. to Juris. Statement 71a. Black voter registration in Burke County has increased following the Voting Rights Act to the point that some 38% of blacks eligible to vote are registered to do so. Id., at 72a. On that basis the District Court inferred that "past discrimination has had an adverse effect on black voter registration which lingers to this date." Ibid. Past discrimination against blacks in education also had the same effect. Not only did Burke County schools discriminate against blacks as recently as 1969, but also some schools still remain essentially segregated and blacks as a group have completed less formal education than whites. Id., at 74a.The District Court found further evidence of exclusion from the political process. Past discrimination had prevented blacks from effectively participating in Democratic Party affairs and in primary elections. Until this lawsuit was filed, there had never been a black member of the County Executive Committee of the Democratic Party. There were also property ownership requirements that made it difficult for blacks to serve as chief registrar in the county. There had been discrimination in the selection of grand jurors, the hiring of county employees, and in the appointments to boards and committees which oversee the county government. Id., at 74a-76a. The District Court thus concluded that historical discrimination had restricted the present opportunity of blacks effectively to participate in the political process. Evidence of historical discrimination is relevant to drawing an inference of purposeful discrimination, particularly in cases such as this one where the evidence shows that discriminatory practices were commonly utilized, that they were abandoned when enjoined by courts or made illegal by civil rights legislation, and that they were replaced by laws and practices which, though neutral on their face, serve to maintain the status quo.Extensive evidence was cited by the District Court to support its finding that elected officials of Burke County have been unresponsive and insensitive to the needs of the black community,9 which increases the likelihood that the political process was not equally open to blacks. This evidence ranged from the effects of past discrimination which still haunt the county courthouse to the infrequent appointment of blacks to county boards and committees; the overtly discriminatory pattern of paving county roads; the reluctance of the county to remedy black complaints, which forced blacks to take legal action to obtain school and grand jury desegregation; and the role played by the County Commissioners in the incorporation of an all-white private school to which they donated public funds for the purchase of band uniforms. Id., at 77a-82a.The District Court also considered the depressed socio-economic status of Burke County blacks. It found that proportionately more blacks than whites have incomes below the poverty level. Id., at 83a. Nearly 53% of all black families living in Burke County had incomes equal to or less than three-fourths of a poverty-level income. Ibid. Not only have blacks completed less formal education than whites, but also the education they have received "was qualitatively inferior to a marked degree." Id., at 84a. Blacks tend to receive less pay than whites, even for similar work, and they tend to be employed in menial jobs more often than whites. Id., at 85a. Seventy-three percent of houses occupied by blacks lacked all or some plumbing facilities; only 16% of white-occupied houses suffered the same deficiency. Ibid. The District Court concluded that the depressed socio-economic status of blacks results in part from "the lingering effects of past discrimination." Ibid.Although finding that the state policy behind the at-large electoral system in Burke County was "neutral in origin," the District Court concluded that the policy "has been subverted to invidious purposes." Id., at 90a. As a practical matter, maintenance of the state statute providing for at-large elections in Burke County is determined by Burke County's state representatives, for the legislature defers to their wishes on matters of purely local application. The court found that Burke County's state representatives "have retained a system which has minimized the ability of Burke County Blacks to participate in the political system." Ibid. The trial court considered, in addition, several factors which this Court has indicated enhance the tendency of multimember districts to minimize the voting strength of racial minorities. See Whitcomb v. Chavis, 403 U.S., at 143-144. It found that the sheer geographic size of the county, which is nearly two-thirds the size of Rhode Island, "has made it more difficult for Blacks to get to polling places or to campaign for office." App. to Juris. Statement 91a. The court concluded, as a matter of law, that the size of the county tends to impair the access of blacks to the political process. Id., at 92a. The majority vote requirement, Ga. Code 34-1513 (Supp. 1980), was found "to submerge the will of the minority" and thus "deny the minority's access to the system." App. to Juris. Statement 92a. The court also found the requirement that candidates run for specific seats, Ga. Code 34-1015 (1978), enhances appellees' lack of access because it prevents a cohesive political group from concentrating on a single candidate. Because Burke County has no residency requirement, "[a]ll candidates could reside in Waynesboro, or in `lilly-white' [sic] neighborhoods. To that extent, the denial of access becomes enhanced." App. to Juris. Statement 93a.None of the District Court's findings underlying its ultimate finding of intentional discrimination appears to us to be clearly erroneous; and as we have said, we decline to overturn the essential finding of the District Court, agreed to by the Court of Appeals, that the at-large system in Burke County has been maintained for the purpose of denying blacks equal access to the political processes in the county. As in White v. Regester, 412 U.S., at 767, the District Court's findings were "sufficient to sustain [its] judgment ... and, on this record, we have no reason to disturb them."IVWe also find no reason to overturn the relief ordered by the District Court. Neither the District Court nor the Court of Appeals discerned any special circumstances that would militate against utilizing single-member districts. Where "a constitutional violation has been found, the remedy does not `exceed' the violation if the remedy is tailored to cure the `condition that offends the Constitution.'" Milliken v. Bradley, (emphasis deleted), quoting Milliken v. Bradley, .10 The judgment of the Court of Appeals is Affirmed. |
8 | [Footnote *] Page I Together with No. 93-1094, City of Chicago v. Great Lakes Dredge & Dock Co. et al., also on certiorari to the same court. After the Chicago River flooded a freight tunnel under the river and the basements of numerous buildings, petitioner corporation and other victims brought tort actions in state court against respondent Great Lakes Dredge & Dock Co. and petitioner Chicago. They claimed that in the course of driving piles from a barge into the river bed months earlier, Great Lakes had negligently weakened the tunnel, which had been improperly maintained by the city. Great Lakes then filed this action, invoking federal admiralty jurisdiction and seeking, inter alia, the protection of the Limitation of Vessel Owner's Liability Act. That Act would permit the admiralty court to decide whether Great Lakes had committed a tort and, if so, to limit its liability to the value of the barges and tug involved if the tort was committed without the privity or knowledge of the vessels' owner. The District Court dismissed the suit for lack of admiralty jurisdiction, but the Court of Appeals reversed.Held: The District Court has federal admiralty jurisdiction over Great Lakes's Limitation Act suit. Pp. 3-21. (a) A party seeking to invoke such jurisdiction over a tort claim must satisfy conditions of both location and connection with maritime activity. In applying the location test, a court must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. 740. In applying the connection test, a court first Page II must assess the "general features of the type of incident involved" to determine if the incident has "a potentially disruptive impact on maritime commerce." Sisson v. Ruby, , 364, n. 2. If so, the court must determine whether the character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. Id., at 365, 364, and n. 2. Pp. 3-6. (b) The location test is readily satisfied here. The alleged tort was committed on a navigable river, and petitioners do not seriously dispute that Great Lakes's barge is a "vessel" for admiralty tort purposes. There is no need or justification for imposing an additional jurisdictional requirement that the damage done must be close in time and space to the activity that caused it. A nonremoteness requirement is not supported by the Extension of Admiralty Jurisdiction Act's language, and the phrase "caused by" used in that Act indicates that the proper standard is proximate cause. Gutierrez v. Waterman S. S. Corp., , distinguished. Pp. 6-10. (c) The maritime connection test is also satisfied here. The incident's "general features" may be described as damage by a vessel in navigable water to an underwater structure. There is little question that this is the kind of incident that has "a potentially disruptive impact on maritime commerce." Damaging the structure could lead to a disruption in the water course itself and, as actually happened here, could lead to restrictions on navigational use during repairs. There is also no question that the activity giving rise to the incident - repair or maintenance work on a navigable waterway performed from a vessel - shows a substantial relationship to traditional maritime activity. Even the assertion that the city's alleged failure to properly maintain and operate the tunnel system was a proximate cause of the flood damage does not take this case out of admiralty. Under Sisson, the substantial relationship test is satisfied when at least one alleged tortfeasor was engaging in activity substantially related to traditional maritime activity and such activity is claimed to have been a proximate cause of the incident. There is no merit to the argument that the activity should be characterized at a hypergeneralized level, such as "repair and maintenance," to eliminate any hint of maritime connection, or to the argument that Sisson is being given too expansive a reading. Pp. 10-16. (d) There are theoretical, as well as practical, reasons to reject the city's proposed multifactor test for admiralty jurisdiction where most of the victims, and one of the tortfeasors, are land based. The Sisson tests are directed at the same objectives invoked to support a multifactor test, the elimination of admiralty jurisdiction where the rationale for the jurisdiction does not support it. In the Extension Page III Act, Congress has already made a judgment that a land-based victim may properly be subject to admiralty jurisdiction; surely a land-based joint tortfeasor has no claim to supposedly more favorable treatment. Moreover, contrary to the city's position, exercise of admiralty jurisdiction does not result in automatic displacement of state law. A multifactor test would also be hard to apply, jettisoning relative predictability for the open-ended rough-and-tumble of factors, inviting complex argument in a trial court and a virtually inevitable appeal. Pp. 16-21. 3 F.3d 225, affirmed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and GINSBURG, JJ., joined. O'CONNOR, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined. STEVEN and BREYER, JJ., took no part in the decision of the case. [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 1] JUSTICE SOUTER delivered the opinion of the Court.On April 13, 1992, water from the Chicago River poured into a freight tunnel running under the river and thence into the basements of buildings in the downtown Chicago Loop. Allegedly, the flooding resulted from events several months earlier, when the respondent Great Lakes Dredge and Dock Company had used a crane, sitting on a barge in the river next to a bridge, to drive piles into the river bed above the tunnel. The issue before us is whether a court of the United States has admiralty jurisdiction to determine and limit the extent of Great Lakes's tort liability. We hold the case to be within federal admiralty jurisdiction.IThe complaint, together with affidavits subject to no objection, alleges the following facts. In 1990, Great Lakes bid on a contract with the petitioner city of [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 2] Chicago to replace wooden pilings clustered around the piers of several bridges spanning the Chicago River, a navigable waterway within the meaning of The Daniel Ball, 10 Wall. 557, 563 (1871). See Escanaba Co. v. Chicago. The pilings (called dolphins) keep ships from bumping into the piers and so protect both. After winning the contract, Great Lakes carried out the work with two barges towed by a tug. One barge carried pilings; the other carried a crane that pulled out old pilings and helped drive in new ones.In August and September 1991, Great Lakes replaced the pilings around the piers projecting into the river and supporting the Kinzie Street Bridge. After towing the crane-carrying barge into position near one of the piers, Great Lakes's employees secured the barge to the river bed with spuds, or long metal legs that project down from the barge and anchor it. The workers then used the crane on the barge to pull up old pilings, stow them on the other barge, and drive new pilings into the river bed around the piers. About seven months later, an eddy formed in the river near the bridge as the collapsing walls or ceiling of a freight tunnel running under the river opened the tunnel to river water, which flowed through to flood buildings in the Loop.After the flood, many of the victims brought actions in state court against Great Lakes and the city of Chicago, claiming that in the course of replacing the pilings Great Lakes had negligently weakened the tunnel structure, which Chicago (its owner) had not properly maintained. Great Lakes then brought this lawsuit in the United States District Court, invoking federal admiralty jurisdiction. Count I of the complaint seeks the protection of the Limitation of Vessel Owner's Liability Act (Limitation Act), 46 U.S.C. App. 181 et seq., a statute that would, in effect, permit the admiralty court to decide whether Great Lakes committed a tort and, if so, to limit Great Lakes's liability to the value of [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 3] the vessels (the tug and two barges) involved if the tort was committed "without the privity or knowledge" of the vessels' owner, 46 U.S.C. App. 183(a). Counts II and III of Great Lakes's complaint ask for indemnity and contribution from the city for any resulting loss to Great Lakes.The city, joined by petitioner Jerome B. Grubart, Inc., one of the state-court plaintiffs, filed a motion to dismiss this suit for lack of admiralty jurisdiction. Fed. Rule Civ. Proc. 12(b)(1). The District Court granted the motion, the Seventh Circuit reversed, Great Lakes Dredge & Dock Co. v. Chicago, 3 F.3d 225 (1993), and we granted certiorari___ (1994). We now affirm. II The parties do not dispute the Seventh Circuit's conclusion that jurisdiction as to Counts II and III (indemnity and contribution) hinges on jurisdiction over the Count I claim. See 3 F.3d, at 231, n. 9; see also 28 U.S.C. 1367 (1988 ed., Supp. V) (supplemental jurisdiction); Fed. Rules Civ. Proc. 14(a) and (c) (impleader of third parties). Thus, the issue is simply whether or not a federal admiralty court has jurisdiction over claims that Great Lakes's faulty replacement work caused the flood damage.AA federal court's authority to hear cases in admiralty flows initially from the Constitution, which "extend[s]" federal judicial power "to all Cases of admiralty and maritime Jurisdiction." U.S. Const., Art. III, 2. Congress has embodied that power in a statute giving federal district courts "original jurisdiction ... of ... [a]ny civil case of admiralty or maritime jurisdiction... ." 28 U.S.C. 1333(1).The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 4] waters. If it did, admiralty jurisdiction followed; if it did not, admiralty jurisdiction did not exist. See, e.g., Thomas v. Lane, 23 F. Cas. 957, 960 (No. 13902) (CC Me. 1813) (Story, J., on Circuit). This ostensibly simple locality test was complicated by the rule that the injury had to be "wholly" sustained on navigable waters for the tort to be within admiralty. The Plymouth, 3 Wall. 20, 34 (1866) (no jurisdiction over tort action brought by the owner of warehouse destroyed in a fire that started on board a ship docked nearby). Thus, admiralty courts lacked jurisdiction over, say, a claim following a ship's collision with a pier insofar as it injured the pier, for admiralty law treated the pier as an extension of the land. Martin v. West; Cleveland T. & V. R. Co. v. Cleveland S. S. Co..This latter rule was changed in 1948, however, when Congress enacted the Extension of Admiralty Jurisdiction Act, 62 Stat. 496. The Act provided that "[t]he admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land." 46 U.S.C. App. 740. The purpose of the Act was to end concern over the sometimes confusing line between land and water, by investing admiralty with jurisdiction over "all cases" a ship or other vessel on navigable water, even if such injury occurred on land. See, e.g., Gutierrez v. Waterman S. S. Corp., ; Executive Jet Aviation, Inc. v. City of Cleveland, .After this congressional modification to gather the odd case into admiralty, the jurisdictional rule was qualified again in three decisions of this Court aimed at keeping [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 5] a different class of odd cases out. In the first case, Executive Jet, supra, tort claims arose out of the wreck of an airplane that collided with a flock of birds just after take-off on a domestic flight and fell into the navigable waters of Lake Erie. We held that admiralty lacked jurisdiction to consider the claims. We wrote that "a purely mechanical application of the locality test" was not always "sensible" or "consonant with the purposes of maritime law, id., at 261, as when (for example) the literal and universal application of the locality rule would require admiralty courts to adjudicate tort disputes between colliding swimmers, id., at 255. We held that "claims arising from airplane accidents are not cognizable in admiralty" despite the location of the harm, unless the "the wrong bear[s] a significant relationship to traditional maritime activity." Id., at 268.The second decision, Foremost Ins. Co. v. Richardson, , dealt with tort claims arising out of the collision of two pleasure boats in a navigable river estuary. We held that admiralty courts had jurisdiction, id., at 677, even though jurisdiction existed only if "the wrong" had "a significant connection with traditional maritime activity," id., at 674. We conceded that pleasure boats themselves had little to do with the maritime commerce lying at the heart of the admiralty court's basic work, id., at 674-675, but we nonetheless found the necessary relationship in"[t]he potential disruptive impact [upon maritime commerce] of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation ... ." Id., at 675. In the most recent of the trilogy, Sisson v. Ruby, , we held that a federal admiralty court had jurisdiction over tort claims arising when a fire, [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 6] caused by a defective washer/dryer aboard a pleasure boat docked at a marina, burned the boat, other boats docked nearby, and the marina itself. Id., at 367. We elaborated on the enquiry exemplified in Executive Jet and Foremost by focusing on two points to determine the relationship of a claim to the objectives of admiralty jurisdiction. We noted, first, that the incident causing the harm, the burning of docked boats at a marina on navigable waters, was of a sort "likely to disrupt [maritime] commercial activity." Id., at 363. Second, we found a "substantial relationship" the kind of activity from which the incident arose, "the storage and maintenance of a vessel ... on navigable waters." Id., at 365-367.After Sisson, then, a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. 740. The connection test raises two issues. A court, first, must "assess the general features of the type of incident involved," 497 U.S., at 363, to determine whether the incident has "a potentially disruptive impact on maritime commerce," id., at 364, n. 2. Second, a court must determine whether "the general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity." Id., at 365, 364, and n. 2. We now apply the tests to the facts of this case.BThe location test is, of course, readily satisfied. If Great Lakes caused the flood, it must have done so by weakening the structure of the tunnel while it drove in new pilings or removed old ones around the bridge piers. [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 7] The weakening presumably took place as Great Lakes's workers lifted and replaced the pilings with a crane that sat on a barge stationed in the Chicago River. The place in the river where the barge sat, and from which workers directed the crane, is in the "navigable waters of the United States." Escanaba Co., 107 U.S., at 683. Thus, if Great Lakes committed a tort, it must have done it while on navigable waters.It must also have done it "by a vessel." Even though the barge was fastened to the river bottom and was in use as a work platform at the times in question, at other times it was used for transportation. See 3 F.3d, at 229. Petitioners do not here seriously dispute the conclusion of each court below that the Great Lakes barge is, for admiralty tort purposes, a "vessel." The fact that the pile-driving was done with a crane makes no difference under the location test, given the maritime law that ordinarily treats an "appurtenance" attached to a vessel in navigable waters as part of the vessel itself. See, e.g., Victory Carriers, Inc. v. Law, ; Gutierrez, 373 U.S., at 209-210.1 [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 8] Because the injuries suffered by Grubart and the other flood victims were caused by a vessel on navigable water, the location enquiry would seem to be at an end, "notwithstanding that such damage or injury [have been] done or consummated on land." 46 U.S.C. App. 740. Both Grubart and Chicago nonetheless ask us to subject the Extension Act to limitations not apparent from its text. While they concede that the Act refers to "all cases of damage or injury," they argue that "all" must not mean literally every such case, no matter how great the distance between the vessel's tortious activity and the resulting harm. They contend that, to be within the Act, the damage must be close in time and space to the activity that caused it: that it must occur "reasonably contemporaneously" with the negligent conduct and no "farther from navigable waters than the reach of the vessel, its appurtenances and cargo." For authority, they point to this Court's statement in Gutierrez, supra, that jurisdiction is present when the "impact" of the tortious activity "is felt ashore at a time and place not remote from the wrongful act." Id., at 210.2 The demerits of this argument lie not only in its want of textual support for its nonremoteness rule, but in its disregard of a less stringent but familiar proximity condition tied to the language of the statute. The Act uses the phrase "caused by," which more than one Court of Appeals has read as requiring what tort law has traditionally called "proximate causation." See, e.g., Pryor v. American President Lines, 520 F.2d 974, 979 (CA4 1975), cert. denied, ; Adams v. Harris County, 452 F.2d 994, 996-997 (CA5 1971), [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 9] cert. denied, . This classic tort notion normally eliminates the bizarre, cf. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N. E. 99 (1928), and its use should obviate not only the complication but even the need for further temporal or spatial limitations. Nor is reliance on familiar proximate causation inconsistent with Gutierrez, which used its nonremote language, not to announce a special test, but simply to distinguish its own facts (the victim having slipped on beans spilling from cargo containers being unloaded from a ship) from what the Court called "[v]arious far-fetched hypotheticals," such as injury to someone slipping on beans that continue to leak from the containers after they had been shipped from Puerto Rico to a warehouse in Denver. 373 U.S., at 210. See also Victory Carriers, supra, at 210-211.The city responds by saying that, as a practical matter, the use of proximate cause as a limiting jurisdictional principle would undesirably force an admiralty court to investigate the merits of the dispute at the outset of a case when it determined jurisdiction.3 The [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 10] argument, of course, assumes that the truth of jurisdictional allegations must always be determined with finality at the threshold of litigation, but that assumption is erroneous. Normal practice permits a party to establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements, see, e.g., Bray v. Alexandria Women's Health Clinic___, ___ (1993) (slip op., at 21); Bell v. Hood, , and any litigation of a contested subject-matter jurisdictional fact issue occurs in comparatively summary procedure before a judge alone (as district from litigation of the same fact issue as an element of the cause of action, if the claim survives the jurisdictional objection). See 2A J. Moore & J. Lucas, Moore's Federal Practice § 12.07[2. - 1] (2d ed. 1994); 5A C. Wright & A. Miller, Federal Practice and Procedure 1350 (2d ed. 1990). There is no reason why this should not be just as true for proximate causation as it is for the maritime nature of the tortfeasor's activity giving rise to the incident. See Sisson, 497 U.S., at 365. There is no need or justification, then, for imposing an additional nonremoteness hurdle in the name of jurisdiction.CWe now turn to the maritime connection enquiries, the first being whether the incident involved was of a sort with the potential to disrupt maritime commerce. In Sisson, we described the features of the incident in [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 11] general terms as "a fire on a vessel docked at a marina on navigable waters," id., at 363, and determined that such an incident "plainly satisf[ied]" the first maritime connection requirement, ibid., because the fire could have "spread to nearby commercial vessels or ma[d]e the marina inaccessible to such vessels" and therefore "[c]ertainly" had a "potentially disruptive impact on maritime commerce." Id., at 362. We noted that this first prong went to potential effects, not to the "particular facts of the incident," noting that in both Executive Jet and Foremost we had focused not on the specific facts at hand but on whether the "general features" of the incident were "likely to disrupt commercial activity." 497 U.S., at 363.The first Sisson test turns, then, on a description of the incident at an intermediate level of possible generality. To speak of the incident as "fire" would have been too general to differentiate cases; at the other extreme, to have described the fire as damaging nothing but pleasure boats and their tie-up facilities would have ignored, among other things, the capacity of pleasure boats to endanger commercial shipping that happened to be nearby. We rejected both extremes and instead asked whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping.Following Sisson, the "general features" of the incident at issue here may be described as damage by a vessel in navigable water to an underwater structure. So characterized, there is little question that this is the kind of incident that has a "potentially disruptive impact on maritime commerce." As it actually turned out in this case, damaging a structure beneath the river bed could lead to a disruption in the water course itself, App. 33 (eddy formed above the leak); and, again as it actually happened, damaging a structure so situated could lead to restrictions on the navigational use of the waterway [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 12] during required repairs. See Pet. for Cert. in No. 93-1094, p. 22a (District Court found that after the flood "[t]he river remained closed for over a month," "[r]iver traffic ceased, several commuter ferries were stranded, and many barges could not enter the river system ... because the river level was lowered to aid repair efforts"). Cf. Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465 (CA5 1991) (admiralty suit when vessel struck and ruptured gas pipeline and gas exploded); Marathon Pipe Line Co. v. Drilling Rig Rowan/Odessa, 761 F.2d 229, 233 (CA5 1985) (admiralty jurisdiction when vessel struck pipeline, "a fixed structure on the seabed"); Orange Beach Water, Sewer, and Fire Protection Authority v. M/V Alva, 680 F.2d 1374 (CA11 1982) (admiralty suit when vessel struck underwater pipeline).In the second Sisson enquiry, we look to whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. We ask whether a tortfeasor's activity, commercial or noncommercial, on navigable waters is so closely related to activity traditionally subject to admiralty law that the reasons for applying special admiralty rules would apply in the case at hand. Navigation of boats in navigable waters clearly falls within the substantial relationship, Foremost, 457 U.S., at 675; storing them at a marina on navigable waters is close enough, Sisson, supra, at 367; whereas in flying an airplane over the water, Executive Jet, 409 U.S., at 270-271, as in swimming, id., at 255-256, the relationship is too attenuated.On like reasoning, the "activity giving rise to the incident" in this case, Sisson, supra, at 364, should be characterized as repair or maintenance work on a navigable waterway performed from a vessel. Described in this way, there is no question that the activity is substantially related to traditional maritime activity, for [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 13] barges and similar vessels have traditionally been engaged in repair work similar to what Great Lakes contracted to perform here. See, e.g., Shea v. Rev-Lyn Contracting Co., 868 F.2d 515, 518 (CA1 1989) (bridge repair by crane-carrying barge); Nelson v. United States, 639 F.2d 469, 472 (CA9 1980) (Kennedy, J.) (repair of wave suppressor from a barge); In re New York Dock Co., 61 F.2d 777 (CA2 1932) (pile driving from crane-carrying barge in connection with the building of a dock); In re P. Sanford Ross, Inc., 196 F. 921, 923-924 (EDNY 1912) (pile driving from crane-carrying barge close to water's edge), rev'd on other grounds, 204 F. 248 (CA2 1913); cf. In re The V-14813, 65 F.2d 789, 790 (CA5 1933) ("[t]here are many cases holding that a dredge, or a barge with a pile driver, employed on navigable waters, is subject to maritime jurisdiction"); Lawrence v. Flatboat, 84 F. 200 (SD Ala. 1897) (pile driving from crane-carrying barge in connection with the erection of bulkheads), aff'd sub nom. Southern Log Cart & Supply Co. v. Lawrence, 86 F. 907 (CA5 1898).The city argues, to the contrary, that a proper application of the activity prong of Sisson would consider the city's own alleged failure at properly maintaining and operating the tunnel system that runs under the river. City Brief 48-49. If this asserted proximate cause of the flood victims' injuries were considered, the city submits, its failure to resemble any traditional maritime activity would take this case out of admiralty.The city misreads Sisson, however, which did not consider the activities of the washer/dryer manufacturer, who was possibly an additional tortfeasor, and whose activities were hardly maritime; the activities of Sisson, the boat owner, supplied the necessary substantial relationship to traditional maritime activity. Likewise, in Foremost, we said that "[b]ecause the `wrong' here involves the negligent operation of a vessel on navigable waters, we believe that it has a sufficient nexus to [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 14] traditional maritime activity to sustain admiralty jurisdiction ... ." 457 U.S., at 674. By using the word "involves," we made it clear that we need to look only to whether one of the arguably proximate causes of the incident originated in the maritime activity of a tortfeasor: as long as one of the putative tortfeasors was engaged in traditional maritime activity the allegedly wrongful activity will "involve" such traditional maritime activity and will meet the second nexus prong. Thus, even if we were to identify the "activity giving rise to the incident" as including the acts of the city as well as Great Lakes, admiralty jurisdiction would nevertheless attach. That result would be true to Sisson's requirement of a "substantial relationship" between the "activity giving rise to the incident" and traditional maritime activity. Sisson did not require, as the city in effect asserts, that there be a complete identity between the two. The substantial relationship test is satisfied when at least one alleged tortfeasor was engaging in activity substantially related to traditional maritime activity and such activity is claimed to have been a proximate cause of the incident.Petitioners also argue that we might get a different result simply by characterizing the "activity" in question at a different level of generality, perhaps as "repair and maintenance," or, as "pile driving near a bridge." The city is, of course, correct that a tortfeasor's activity can be described at a sufficiently high level of generality to eliminate any hint of maritime connection, and if that were properly done Sisson would bar assertion of admiralty jurisdiction. But to suggest that such hyper-generalization ought to be the rule would convert Sisson into a vehicle for eliminating admiralty jurisdiction. Although there is inevitably some play in the joints in selecting the right level of generality when applying the Sisson test, the inevitable imprecision is not an excuse for whimsy. The test turns on the comparison of [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 15] traditional maritime activity to the arguably maritime character of the tortfeasor's activity in a given case; the comparison would merely be frustrated by eliminating the maritime aspect of the tortfeasor's activity from consideration.4 Grubart makes an additional claim that Sisson is being given too expansive a reading. If the activity at issue here is considered maritime-related, it argues, then virtually "every activity involving a vessel on navigable waters" would be "a traditional maritime activity sufficient to invoke maritime jurisdiction." Grubart Brief 6. But this is not fatal criticism. This Court has not proposed any radical alteration of the traditional criteria for invoking admiralty jurisdiction in tort cases, but has simply followed the lead of the lower federal courts in rejecting a location rule so rigid as to extend admiralty to a case involving an airplane, not a vessel, engaged in an activity far removed from anything traditionally maritime. See Executive Jet, 409 U.S., at 268-274; see also Peytavin v. Government Employees Ins. Co., 453 F.2d 1121, 1127 (CA5 1972) (no jurisdiction over claim for personal injury by motorist who was rear-ended while waiting for a ferry on a floating pontoon serving as the ferry's landing); Chapman v. Grosse Pointe Farms, 385 F.2d 962 (CA6 1967) (no admiralty jurisdiction over claim of swimmer who injured himself when diving off pier into shallow but navigable water). In the cases after Executive Jet, the Court stressed the [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 16] need for a maritime connection, but found one in the navigation or berthing of pleasure boats, despite the facts that the pleasure boat activity took place near shore, where States have a strong interest in applying their own tort law, or was not on all fours with the maritime shipping and commerce that has traditionally made up the business of most maritime courts. Sisson, 497 U.S., at 367; Foremost, 457 U.S., at 675. Although we agree with petitioners that these cases do not say that every tort involving a vessel on navigable waters falls within the scope of admiralty jurisdiction no matter what, they do show that ordinarily that will be so.5 IIIPerhaps recognizing the difficulty of escaping the case law, petitioners ask us to change it. In cases "involving land based parties and injuries," the city would have us adopt a condition of jurisdiction that"the totality of the circumstances reflects a federal interest in protecting maritime commerce sufficiently weighty to justify shifting what would otherwise be state-court litigation into federal court under the federal law of admiralty." City Brief 32. Grubart and the city say that the Fifth Circuit has applied a somewhat similar "four-factor test" looking to "the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law." Kelly v. Smith, 485 F.2d 520, [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 17] 525 (CA5 1973); see also Molett v. Penrod Drilling Co., 826 F.2d 1419, 1426 (CA5 1987) (adding three more factors: the "impact of the event on maritime shipping and commerce"; "the desirability of a uniform national rule to apply to such matters"; and "the need for admiralty `expertise' in the trial and decision of the case"), cert. denied sub nom. Columbus-McKinnon, Inc. v. Gearench, Inc., . Although they point out that Sisson disapproved the use of four-factor or seven-factor tests "where all the relevant entities are engaged in similar types of activity," this rule implicitly left the matter open for cases like this one, where most of the victims, and one of the tortfeasors, are based on land. See 497 U.S., at 365, n. 3 ("Different issues may be raised by a case in which one of the instrumentalities is engaged in a traditional maritime activity, but the other is not"). The city argues that there is a good reason why cases like this one should get different treatment. Since the basic rationale for federal admiralty jurisdiction is "protection of maritime commerce through uniform rules of decision," the proposed jurisdictional test would improve on Sisson in limiting the scope of admiralty jurisdiction more exactly to its rationale. A multiple factor test would minimize, if not eliminate, the awkward possibility that federal admiralty rules or procedures will govern a case, to the disadvantage of state law, when admiralty's purpose does not require it. Cf. Foremost, supra, at 677-686 (Powell, J., dissenting).Although the arguments are not frivolous, they do not persuade. It is worth recalling that the Sisson tests are aimed at the same objectives invoked to support a new multifactor test, the elimination of admiralty jurisdiction where the rationale for the jurisdiction does not support it. If the tort produces no potential threat to maritime commerce or occurs during activity lacking a substantial relationship to traditional maritime activity, Sisson assumes that the objectives of admiralty jurisdiction [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 18] probably do not require its exercise, even if the location test is satisfied. If, however, the Sisson tests are also satisfied, it is not apparent why the need for admiralty jurisdiction in aid of maritime commerce somehow becomes less acute merely because land-based parties happen to be involved. Certainly Congress did not think a land-based party necessarily diluted the need for admiralty jurisdiction or it would have kept its hands off the primitive location test.Of course one could claim it to be odd that under Sisson a land-based party (or more than one) may be subject to admiralty jurisdiction, but it would appear no less odd under the city's test that a maritime tortfeasor in the most traditional mould might be subject to state common-law jurisdiction. Other things being equal, it is not evident why the first supposed anomaly is worse than the second. But other things are not even equal. As noted just above, Congress has already made the judgment, in the Extension Act, that a land-based victim may properly be subject to admiralty jurisdiction. Surely a land-based joint tortfeasor has no claim to supposedly more favorable treatment.Nor are these the only objections to the city's position. Contrary to what the city suggests, City Brief 10, 14-15, 25-26, 30, exercise of federal admiralty jurisdiction does not result in automatic displacement of state law. It is true that, "[w]ith admiralty jurisdiction comes the application of substantive admiralty law." East River S. S. Corp. v. Transamerica DeLaval Inc., . But, to characterize that law, as the city apparently does, as "federal rules of decision," City Brief 15, is"a destructive oversimplification of the highly intricate interplay of the States and the National Government in their regulation of maritime commerce. It is true that state law must yield to the needs of a uniform federal maritime law when this Court [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 19] finds inroads on a harmonious system. But this limitation still leaves the States a wide scope." Romero v. International Terminal Operating Co., (footnote omitted). See East River, supra, at 864-865 ("Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules" (footnote omitted)). Thus, the city's proposal to synchronize the jurisdictional enquiry with the test for determining the applicable substantive law would discard a fundamental feature of admiralty law, that federal admiralty courts sometimes do apply state law. See, e.g., American Dredging Co. v. Miller___, ___ (1994) (slip op., at 7-8); see also 1 S. Friedell, Benedict on Admiralty 112 p. 7-49 (7th ed. 1994).6 [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 20] Finally, on top of these objections going to the city's premises there is added a most powerful one based on the practical consequences of adopting a multifactor test. Although the existing case law tempers the locality test with the added requirements looking to potential harm and traditional activity, it reflects customary practice in seeing jurisdiction as the norm when the tort originates with a vessel in navigable waters, and in treating departure from the locality principle as the exception. For better or worse, the case law has thus carved out the approximate shape of admiralty jurisdiction in a way that admiralty lawyers understand reasonably well. As against this approach, so familiar and relatively easy, the proposed four- or seven-factor test would be hard to apply, jettisoning relative predictability for the open-ended rough-and-tumble of factors, inviting complex argument in a trial court and a virtually inevitable appeal.Consider, for example, just one of the factors under the city's test, requiring a district court at the beginning of every purported admiralty case to determine the source (state or federal) of the applicable substantive law. The difficulty of doing that was an important reason why this Court in Romero, supra, was unable to hold that maritime claims fell within the scope of the federal-question-jurisdiction statute, 28 U.S.C. 1331. 358 U.S., at 375-376 ("sound judicial policy does not encourage a situation which necessitates constant [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 21] adjudication of the boundaries of state and federal competence"). That concern applies just as strongly to cases invoking a district court's admiralty jurisdiction under 28 U.S.C. 1333, under which the jurisdictional enquiry for maritime torts has traditionally been quite uncomplicated.Reasons of practice, then, are as weighty as reasons of theory for rejecting the city's call to adopt a multifactor test for admiralty jurisdiction for the benefit of land-based parties to a tort action.Accordingly, we conclude that the Court of Appeals correctly held that the District Court had admiralty jurisdiction over the respondent's Limitation Act suit. The judgment of the Court of Appeals is Affirmed. JUSTICE STEVENS and JUSTICE BREYER took no part in the decision of this case. [JEROME B. GRUBART, INC. v. GREAT LAKES DREDGE & DOCK, ___ U.S. ___ (1995), 22] |
8 | The Internal Revenue Service seized real property owned by petitioner (hereinafter Grable) to satisfy a federal tax delinquency, and gave Grable notice by certified mail before selling the property to respondent (hereinafter Darue). Grable subsequently brought a quiet title action in state court, claiming that Darue's title was invalid because 26 U. S. C. §6335 required the IRS to give Grable notice of the sale by personal service, not certified mail. Darue removed the case to Federal District Court as presenting a federal question because the title claim depended on an interpretation of federal tax law. The District Court declined to remand the case, finding that it posed a significant federal-law question, and it granted Darue summary judgment on the merits. The Sixth Circuit affirmed, and this Court granted certiorari on the jurisdictional question.Held: The national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal-question jurisdiction over the disputed issue on removal. Pp. 3-11. (a) Darue was entitled to remove the quiet title action if Grable could have brought it in federal court originally, as a civil action "arising under the ... laws ... of the United States," 28 U. S. C. §1331. Federal-question jurisdiction is usually invoked by plaintiffs pleading a cause of action created by federal law, but this Court has also long recognized that such jurisdiction will lie over some state-law claims that implicate significant federal issues, see, e.g., Smith v. Kansas City Title & Trust Co., 255 U. S. 180. Such federal jurisdiction demands not only a contested federal issue, but a substantial one. And the jurisdiction must be consistent with congressional judgment about the sound division of labor between state and federal courts governing §1331's application. These considerations have kept the Court from adopting a single test for jurisdiction over federal issues embedded in state-law claims between nondiverse parties. Instead, the question is whether the state-law claim necessarily stated a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities. Pp. 3-6. (b) This case warrants federal jurisdiction. Grable premised its superior title claim on the IRS's failure to give adequate notice, as defined by federal law. Whether Grable received notice is an essential element of its quiet title claim, and the federal statute's meaning is actually disputed. The meaning of a federal tax provision is an important federal-law issue that belongs in federal court. The Government has a strong interest in promptly collecting delinquent taxes, and the IRS's ability to satisfy its claims from delinquents' property requires clear terms of notice to assure buyers like Darue that the IRS has good title. Finally, because it will be the rare state title case that raises a federal-law issue, federal jurisdiction to resolve genuine disagreement over federal tax title provisions will portend only a microscopic effect on the federal-state division of labor. This conclusion puts the Court in venerable company, quiet title actions having been the subject of some of the earliest exercises of federal-question jurisdiction over state-law claims. E.g., Hopkins v. Walker, 244 U. S. 486, 490-491. Pp. 6-7. (c) Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, is not to the contrary. There, in finding federal jurisdiction unavailable for a state tort claim resting in part on an allegation that the defendant drug company had violated a federal branding law, the Court noted that Congress had not provided a private federal cause of action for such violations. Merrell Dow cannot be read to make a federal cause of action a necessary condition for federal-question jurisdiction. It disclaimed the adoption of any bright-line rule and expressly approved the exercise of jurisdiction in Smith, where there was no federal cause of action. Accordingly, Merrell Dow should be read in its entirety as treating the absence of such cause as evidence relevant to, but not dispositive of, the "sensitive judgments about congressional intent," required by §1331. Id., at 810. In Merrell Dow, the principal significance of this absence was its bearing on the consequences to the federal system. If the federal labeling standard without a cause of action could get a state claim into federal court, so could any other federal standards without causes of action. And that would mean an enormous number of cases. A comparable analysis yields a different jurisdictional conclusion here, because state quiet title actions rarely involve contested federal-law issues. Pp. 7-11.377 F. 3d 592, affirmed. Souter, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.GRABLE & SONS METAL PRODUCTS, INC., PETITIONER v. DARUE ENGINEERING & MANUFACTURINGon writ of certiorari to the united states court of appeals for the sixth circuit[June 13, 2005] Justice Souter delivered the opinion of the Court. The question is whether want of a federal cause of action to try claims of title to land obtained at a federal tax sale precludes removal to federal court of a state action with non-diverse parties raising a disputed issue of federal title law. We answer no, and hold that the national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal, which would not distort any division of labor betweenthe state and federal courts, provided or assumed by Congress. I In 1994, the Internal Revenue Service seized Michigan real property belonging to petitioner Grable & Sons Metal Products, Inc., to satisfy Grable's federal tax delinquency. Title 26 U. S. C. §6335 required the IRS to give notice of the seizure, and there is no dispute that Grable received actual notice by certified mail before the IRS sold the property to respondent Darue Engineering & Manufacturing. Although Grable also received notice of the sale itself, it did not exercise its statutory right to redeem the property within 180 days of the sale, §6337(b)(1), and after that period had passed, the Government gave Darue a quitclaim deed. §6339. Five years later, Grable brought a quiet title action in state court, claiming that Darue's record title was invalid because the IRS had failed to notify Grable of its seizure of the property in the exact manner required by §6335(a), which provides that written notice must be "given by the Secretary to the owner of the property [or] left at his usual place of abode or business." Grable said that the statute required personal service, not service by certified mail. Darue removed the case to Federal District Court as presenting a federal question, because the claim of title depended on the interpretation of the notice statute in the federal tax law. The District Court declined to remand the case at Grable's behest after finding that the "claim does pose a significant question of federal law," Tr. 17 (Apr. 2, 2001), and ruling that Grable's lack of a federal right of action to enforce its claim against Darue did not bar the exercise of federal jurisdiction. On the merits, the court granted summary judgment to Darue, holding that although §6335 by its terms required personal service, substantial compliance with the statute was enough. 207 F. Supp. 2d 694 (WD Mich. 2002). The Court of Appeals for the Sixth Circuit affirmed. 377 F. 3d 592 (2004). On the jurisdictional question, the panel thought it sufficed that the title claim raised an issue of federal law that had to be resolved, and implicated a substantial federal interest (in construing federal tax law). The court went on to affirm the District Court's judgment on the merits. We granted certiorari on the jurisdictional question alone,1 543 U. S. ___ (2005) to resolve a split within the Courts of Appeals on whether Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986), always requires a federal cause of action as a condition for exercising federal-question jurisdiction.2 We now affirm.II Darue was entitled to remove the quiet title action if Grable could have brought it in federal district court originally, 28 U. S. C. §1441(a), as a civil action "arising under the Constitution, laws, or treaties of the United States," §1331. This provision for federal-question jurisdiction is invoked by and large by plaintiffs pleading a cause of action created by federal law (e.g., claims under 42 U. S. C. §1983). There is, however, another longstanding, if less frequently encountered, variety of federal "arising under" jurisdiction, this Court having recognized for nearly 100 years that in certain cases federal question jurisdiction will lie over state-law claims that implicate significant federal issues. E.g., Hopkins v. Walker, 244 U. S. 486, 490-491 (1917). The doctrine captures the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues, see ALI, Study of the Division of Jurisdiction Between State and Federal Courts 164-166 (1968). The classic example is Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), a suit by a shareholder claiming that the defendant corporation could not lawfully buy certain bonds of the National Government because their issuance was unconstitutional. Although Missouri law provided the cause of action, the Court recognized federal-question jurisdiction because the principal issue in the case was the federal constitutionality of the bond issue. Smith thus held, in a somewhat generous statement of the scope of the doctrine, that a state-law claim could give rise to federal-question jurisdiction so long as it "appears from the [complaint] that the right to relief depends upon the construction or application of [federal law]." Id., at 199. The Smith statement has been subject to some trimming to fit earlier and later cases recognizing the vitality of the basic doctrine, but shying away from the expansive view that mere need to apply federal law in a state-law claim will suffice to open the "arising under" door. As early as 1912, this Court had confined federal-question jurisdiction over state-law claims to those that "really and substantially involv[e] a dispute or controversy respecting the validity, construction or effect of [federal] law." Shulthis v. McDougal, 225 U. S. 561, 569 (1912). This limitation was the ancestor of Justice Cardozo's later explanation that a request to exercise federal-question jurisdiction over a state action calls for a "common-sense accommodation of judgment to [the] kaleidoscopic situations" that present a federal issue, in "a selective process which picks the substantial causes out of the web and lays the other ones aside." Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 117-118 (1936). It has in fact become a constant refrain in such cases that federal jurisdiction demands not only a contested federal issue, but a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum. E.g., Chicago v. International College of Surgeons, 522 U. S. 156, 164 (1997); Merrell Dow, supra, at 814, and n. 12; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 28 (1983). But even when the state action discloses a contested and substantial federal question, the exercise of federal jurisdiction is subject to a possible veto. For the federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of §1331. Thus, Franchise Tax Bd. explained that the appropriateness of a federal forum to hear an embedded issue could be evaluated only after considering the "welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system." Id., at 8. Because arising-under jurisdiction to hear a state-law claim always raises the possibility of upsetting the state-federal line drawn (or at least assumed) by Congress, the presence of a disputed federal issue and the ostensible importance of a federal forum are never necessarily dispositive; there must always be an assessment of any disruptive portent in exercising federal jurisdiction. See also Merrell Dow, supra, at 810. These considerations have kept us from stating a "single, precise, all-embracing" test for jurisdiction over federal issues embedded in state-law claims between nondiverse parties. Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 821 (1988) (Stevens, J., concurring). We have not kept them out simply because they appeared in state raiment, as Justice Holmes would have done, see Smith, supra, at 214 (dissenting opinion), but neither have we treated "federal issue" as a password opening federal courts to any state action embracing a point of federal law. Instead, the question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.IIIA This case warrants federal jurisdiction. Grable's state complaint must specify "the facts establishing the superiority of [its] claim," Mich. Ct. Rule 3.411(B)(2)(c) (West 2005), and Grable has premised its superior title claim on a failure by the IRS to give it adequate notice, as defined by federal law. Whether Grable was given notice within the meaning of the federal statute is thus an essential element of its quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case. The meaning of the federal tax provision is an important issue of federal law that sensibly belongs in a federal court. The Government has a strong interest in the "prompt and certain collection of delinquent taxes," United States v. Rodgers, 461 U. S. 677, 709 (1983), and the ability of the IRS to satisfy its claims from the property of delinquents requires clear terms of notice to allow buyers like Darue to satisfy themselves that the Service has touched the bases necessary for good title. The Government thus has a direct interest in the availability of a federal forum to vindicate its own administrative action, and buyers (as well as tax delinquents) may find it valuable to come before judges used to federal tax matters. Finally, because it will be the rare state title case that raises a contested matter of federal law, federal jurisdiction to resolve genuine disagreement over federal tax title provisions will portend only a microscopic effect on the federal-state division of labor. See n. 3, infra. This conclusion puts us in venerable company, quiet title actions having been the subject of some of the earliest exercises of federal-question jurisdiction over state-law claims. In Hopkins, 244 U. S., 490-491, the question was federal jurisdiction over a quiet title action based on the plaintiffs' allegation that federal mining law gave them the superior claim. Just as in this case, "the facts showing the plaintiffs' title and the existence and invalidity of the instrument or record sought to be eliminated as a cloud upon the title are essential parts of the plaintiffs' cause of action."3 Id., at 490. As in this case again, "it is plain that a controversy respecting the construction and effect of the [federal] laws is involved and is sufficiently real and substantial." Id., at 489. This Court therefore upheld federal jurisdiction in Hopkins, as well as in the similar quiet title matters of Northern Pacific R. Co. v. Soderberg, 188 U. S. 526, 528 (1903), and Wilson Cypress Co. v. Del Pozo y Marcos, 236 U. S. 635, 643-644 (1915). Consistent with those cases, the recognition of federal jurisdiction is in order here.B Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986), on which Grable rests its position, is not to the contrary. Merrell Dow considered a state tort claim resting in part on the allegation that the defendant drug company had violated a federal misbranding prohibition, and was thus presumptively negligent under Ohio law. Id., at 806. The Court assumed that federal law would have to be applied to resolve the claim, but after closely examining the strength of the federal interest at stake and the implications of opening the federal forum, held federal jurisdiction unavailable. Congress had not provided a private federal cause of action for violation of the federal branding requirement, and the Court found "it would ... flout, or at least undermine, congressional intent to conclude that federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of that federal statute solely because the violation ... is said to be a ... 'proximate cause' under state law." Id., at 812. Because federal law provides for no quiet title action that could be brought against Darue,4 Grable argues that there can be no federal jurisdiction here, stressing some broad language in Merrell Dow (including the passage just quoted) that on its face supports Grable's position, see Note, Mr. Smith Goes to Federal Court: Federal Question Jurisdiction over State Law Claims Post-Merrell Dow, 115 Harv. L. Rev. 2272, 2280-2282 (2002) (discussing split in Circuit Courts over private right of action requirement after Merrell Dow). But an opinion is to be read as a whole, and Merrell Dow cannot be read whole as overturning decades of precedent, as it would have done by effectively adopting the Holmes dissent in Smith, see supra, at 5, and converting a federal cause of action from a sufficient condition for federal-question jurisdiction5 into a necessary one. In the first place, Merrell Dow disclaimed the adoption of any bright-line rule, as when the Court reiterated that "in exploring the outer reaches of §1331, determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system." 478 U. S., at 810. The opinion included a lengthy footnote explaining that questions of jurisdiction over state-law claims require "careful judgments," id., at 814, about the "nature of the federal interest at stake," id., at 814, n. 12 (emphasis deleted). And as a final indication that it did not mean to make a federal right of action mandatory, it expressly approved the exercise of jurisdiction sustained in Smith, despite the want of any federal cause of action available to Smith's shareholder plaintiff. 478 U. S., at 814, n. 12. Merrell Dow then, did not toss out, but specifically retained the contextual enquiry that had been Smith's hallmark for over 60 years. At the end of Merrell Dow, Justice Holmes was still dissenting. Accordingly, Merrell Dow should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the "sensitive judgments about congressional intent" that §1331 requires. The absence of any federal cause of action affected Merrell Dow's result two ways. The Court saw the fact as worth some consideration in the assessment of substantiality. But its primary importance emerged when the Court treated the combination of no federal cause of action and no preemption of state remedies for misbranding as an important clue to Congress's conception of the scope of jurisdiction to be exercised under §1331. The Court saw the missing cause of action not as a missing federal door key, always required, but as a missing welcome mat, required in the circumstances, when exercising federal jurisdiction over a state misbranding action would have attracted a horde of original filings and removal cases raising other state claims with embedded federal issues. For if the federal labeling standard without a federal cause of action could get a state claim into federal court, so could any other federal standard without a federal cause of action. And that would have meant a tremendous number of cases. One only needed to consider the treatment of federal violations generally in garden variety state tort law. "The violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings."6 Restatement (Third) of Torts (proposed final draft) §14, Comment a. See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts, §36, p. 221, n. 9 (5th ed. 1984) ("[T]he breach of a federal statute may support a negligence per se claim as a matter of state law" (collecting authority)). A general rule of exercising federal jurisdiction over state claims resting on federal mislabeling and other statutory violations would thus have heralded a potentially enormous shift of traditionally state cases into federal courts. Expressing concern over the "increased volume of federal litigation," and noting the importance of adhering to "legislative intent," Merrell Dow thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law "solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] ... under state law." 478 U. S., at 811-812 (internal quotation marks omitted). In this situation, no welcome mat meant keep out. Merrell Dow's analysis thus fits within the framework of examining the importance of having a federal forum for the issue, and the consistency of such a forum with Congress's intended division of labor between state and federal courts. As already indicated, however, a comparable analysis yields a different jurisdictional conclusion in this case. Although Congress also indicated ambivalence in this case by providing no private right of action to Grable, it is the rare state quiet title action that involves contested issues of federal law, see n. 3, supra. Consequently, jurisdiction over actions like Grable's would not materially affect, or threaten to affect, the normal currents of litigation. Given the absence of threatening structural consequences and the clear interest the Government, its buyers, and its delinquents have in the availability of a federal forum, there is no good reason to shirk from federal jurisdiction over the dispositive and contested federal issue at the heart of the state-law title claim.7IV The judgment of the Court of Appeals, upholding federal jurisdiction over Grable's quiet title action, is affirmed.It is so ordered.GRABLE & SONS METAL PRODUCTS, INC., PETITIONER v. DARUE ENGINEERING & MANUFACTURINGon writ of certiorari to the united states court of appeals for the sixth circuit[June 13, 2005] Justice Thomas, concurring. The Court faithfully applies our precedents interpreting 28 U. S. C. §1331 to authorize federal-court jurisdiction over some cases in which state law creates the cause of action but requires determination of an issue of federal law, e.g., Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921); Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986). In this case, no one has asked us to overrule those precedents and adopt the rule Justice Holmes set forth in American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257 (1916), limiting §1331 jurisdiction to cases in which federal law creates the cause of action pleaded on the face of the plaintiff's complaint. Id., at 260. In an appropriate case, and perhaps with the benefit of better evidence as to the original meaning of §1331's text, I would be willing to consider that course.** Jurisdictional rules should be clear. Whatever the virtues of the Smith standard, it is anything but clear. Ante, at 4 (the standard "calls for a 'common-sense accommodation of judgment to [the] kaleidoscopic situations' that present a federal issue, in 'a selective process which picks the substantial causes out of the web and lays the other ones aside' " (quoting Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 117-118 (1936))); ante, at 5 ("[T]he question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities"); ante, at 9 (" '[D]eterminations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system' "; "the absence of a federal private right of action [is] evidence relevant to, but not dispositive of, the 'sensitive judgments about congressional intent' that §1331 requires" (quoting Merrell Dow, supra, at 810)). Whatever the vices of the American Well Works rule, it is clear. Moreover, it accounts for the " 'vast majority' " of cases that come within §1331 under our current case law, Merrell Dow, supra, at 808 (quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 9 (1983))--further indication that trying to sort out which cases fall within the smaller Smith category may not be worth the effort it entails. See R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 885-886 (5th ed. 2003). Accordingly, I would be willing in appropriate circumstances to reconsider our interpretation of §1331.FOOTNOTESFootnote 1 Accordingly, we have no occasion to pass upon the proper interpretation of the federal tax provision at issue here. Footnote 2 Compare Seinfeld v. Austen, 39 F. 3d 761, 764 (CA7 1994) (finding that federal-question jurisdiction over a state-law claim requires a parallel federal private right of action), with Ormet Corp. v. Ohio Power Co., 98 F. 3d 799, 806 (CA4 1996) (finding that a federal private action is not required). Footnote 3 The quiet title cases also show the limiting effect of the requirement that the federal issue in a state-law claim must actually be in dispute to justify federal-question jurisdiction. In Shulthis v. McDougal, 225 U. S. 561 (1912), this Court found that there was no federal question jurisdiction to hear a plaintiff's quiet title claim in part because the federal statutes on which title depended were not subject to "any controversy respecting their validity, construction, or effect." Id., at 570. As the Court put it, the requirement of an actual dispute about federal law was "especially" important in "suit[s] involving rights to land acquired under a law of the United States," because otherwise "every suit to establish title to land in the central and western states would so arise [under federal law], as all titles in those States are traceable back to those laws." Id., at 569-570.Footnote 4 Federal law does provide a quiet title cause of action against the Federal Government. 28 U. S. C. §2410. That right of action is not relevant here, however, because the federal government no longer has any interest in the property, having transferred its interest to Darue through the quitclaim deed. Footnote 5 For an extremely rare exception to the sufficiency of a federal right of action, see Shoshone Mining Co. v. Rutter, 177 U. S. 505, 507 (1900).Footnote 6 Other jurisdictions treat a violation of a federal statute as evidence of negligence or, like Ohio itself in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986), as creating a rebuttable presumption of negligence. Restatement (Third) of Torts (proposed final draft) §14, Comment c. Either approach could still implicate issues of federal law. Footnote 7 At oral argument Grable's counsel espoused the position that after Merrell Dow, federal-question jurisdiction over state-law claims absent a federal right of action, could be recognized only where a constitutional issue was at stake. There is, however, no reason in text or otherwise to draw such a rough line. As Merrell Dow itself suggested, constitutional questions may be the more likely ones to reach the level of substantiality that can justify federal jurisdiction. 478 U. S., at 814, n. 12. But a flat ban on statutory questions would mechanically exclude significant questions of federal law like the one this case presents.FOOTNOTESFootnote ** This Court has long construed the scope of the statutory grant of federal-question jurisdiction more narrowly than the scope of the constitutional grant of such jurisdiction. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 807-808 (1986). I assume for present purposes that this distinction is proper — that is, that the language of 28 U. S. C. §1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States" (emphasis added), is narrower than the language of Art. III, §2, cl. 1, of the Constitution, "[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ... " (emphases added). |
1 | Faced with Medicaid costs beyond its budget, Tennessee proposed to reduce from 20 to 14 the number of annual inpatient hospital days that state Medicaid would pay hospitals on behalf of a Medicaid recipient. Before the reduction took effect, respondent Medicaid recipients brought a class action in Federal District Court for declaratory and injunctive relief. Respondents alleged that the proposed 14-day limitation would have a disproportionate effect on the handicapped and hence was discriminatory in violation of 504 of the Rehabilitation Act of 1973 - which provides that no otherwise qualified handicapped person shall, solely by reason of his handicap, be subjected to discrimination under any program receiving federal financial assistance - and its implementing regulations, and moreover that any annual limitation on inpatient coverage would disadvantage the handicapped disproportionately in violation of 504. The District Court dismissed the complaint on the ground that the 14-day limitation was not the type of discrimination that 504 was intended to proscribe. The Court of Appeals held that respondent had established a prima facie case of a 504 violation, because both the 14-day and any annual limitation on inpatient coverage would disproportionately affect the handicapped.Held: Assuming that 504 or its implementing regulations reach some claims of disparate-impact discrimination, the effect of Tennessee's reduction in annual inpatient hospital coverage is not among them. Pp. 292-309. (a) The 14-day limitation is neutral on its face, is not alleged to rest on a discriminatory motive, and does not deny the handicapped meaningful access to or exclude them from the particular package of Medicaid services Tennessee has chosen to provide. The State has made the same benefit equally accessible to both handicapped and nonhandicapped persons, and is not required to assure the handicapped "adequate health care" by providing them with more coverage than the nonhandicapped. Nothing in the Rehabilitation Act's legislative history supports the conclusion that the Act requires the States to view certain illnesses, i. e., those particularly affecting the handicapped, as more important than others and more worthy of cure through government subsidization. Section 504 does not require the State to alter its definition of the benefit it will be providing as 14 days of inpatient coverage simply to meet the reality that the handicapped have greater medical needs. While 504 seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal financial assistance, the Act does not guarantee the handicapped equal results from the provision of state Medicaid. Pp. 302-306. (b) In addition, the State is not obligated to modify its Medicaid program by abandoning reliance on annual durational limitations on inpatient coverage. Section 504 does not require the State to redefine its Medicaid program, and nothing in its legislative history suggests that Congress desired to make major inroads on the States' longstanding discretion to choose the proper mix of amount, scope, and durational limitations on services covered by Medicaid. Moreover, 504 does not require that federal grantees make a broad-based distributive decision always in the way most favorable, or least disadvantageous, to the handicapped. To do so would impose a virtually unworkable requirement on state Medicaid administrators. Pp. 306-309. 715 F.2d 1036, reversed.MARSHALL, J., delivered the opinion for a unanimous Court.W. J. Michael Cody, Attorney General of Tennessee, argued the cause for petitioners. With him on the briefs were William M. Leech, Jr., former Attorney General, William B. Hubbard, Chief Deputy Attorney General, and Frank J. Scanlon, Deputy Attorney General.Deputy Solicitor General Bator argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Assistant Attorney General Cooper, John H. Garvey, and Brian K. Landsberg.Gordon Bonnyman argued the cause for respondents. With him on the brief were Brian Paddock, Arlene Mayerson, J. LeVonne Chambers, and Eric Schnapper.* [Footnote *] Robert E. Williams and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the Center for Independent Living - San Gabriel/Pomona Valleys et al. by Marilyn Holle and Timothy Cook; and for United Cerebral Palsy of New York City, Inc., by Michael A. Rebell. JUSTICE MARSHALL delivered the opinion of the Court.In 1980, Tennessee proposed reducing the number of annual days of inpatient hospital care covered by its state Medicaid program. The question presented is whether the effect upon the handicapped that this reduction will have is cognizable under 504 of the Rehabilitation Act of 1973 or its implementing regulations. We hold that it is not.IFaced in 1980-1981 with projected state Medicaid1 costs of $42 million more than the State's Medicaid budget of $388 million, the directors of the Tennessee Medicaid program decided to institute a variety of cost-saving measures. Among these changes was a reduction from 20 to 14 in the number of inpatient hospital days per fiscal year that Tennessee Medicaid would pay hospitals on behalf of a Medicaid recipient. Before the new measures took effect, respondents, Tennessee Medicaid recipients, brought a class action for declaratory and injunctive relief in which they alleged, inter alia, that the proposed 14-day limitation on inpatient coverage would have a discriminatory effect on the handicapped.2 Statistical evidence, which petitioners do not dispute, indicated that in the 1979-1980 fiscal year, 27.4% of all handicapped users of hospital services who received Medicaid required more than 14 days of care, while only 7.8% of nonhandicapped users required more than 14 days of inpatient care.Based on this evidence, respondents asserted that the reduction would violate 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U.S.C. 794, and its implementing regulations. Section 504 provides:"No otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ... ." 29 U.S.C. 794. Respondents' position was twofold. First, they argued that the change from 20 to 14 days of coverage would have a disproportionate effect on the handicapped and hence was discriminatory.3 The second, and major, thrust of respondents' attack was directed at the use of any annual limitation on the number of inpatient days covered, for respondents acknowledged that, given the special needs of the handicapped for medical care, any such limitation was likely to disadvantage the handicapped disproportionately. Respondents noted, however, that federal law does not require States to impose any annual durational limitation on inpatient coverage, and that the Medicaid programs of only 10 States impose such restrictions.4 Respondents therefore suggested that Tennessee follow these other States and do away with any limitation on the number of annual inpatient days covered. Instead, argued respondents, the State could limit the number of days of hospital coverage on a per-stay basis, with the number of covered days to vary depending on the recipient's illness (for example, fixing the number of days covered for an appendectomy); the period to be covered for each illness could then be set at a level that would keep Tennessee's Medicaid program as a whole within its budget.5 The State's refusal to adopt this plan was said to result in the imposition of gratuitous costs on the handicapped and thus to constitute discrimination under 504.A divided panel of the Court of Appeals for the Sixth Circuit held that respondents had indeed established a prima facie case of a 504 violation. Jennings v. Alexander, 715 F.2d 1036 (1983). The majority apparently concluded that any action by a federal grantee that disparately affects the handicapped states a cause of action under 504 and its implementing regulations. Because both the 14-day rule and any annual limitation on inpatient coverage disparately affected the handicapped, the panel found that a prima facie case had been made out, and the case was remanded6 to give Tennessee an opportunity for rebuttal. According to the panel majority, the State on remand could either demonstrate the unavailability of alternative plans that would achieve the State's legitimate cost-saving goals with a less disproportionate impact on the handicapped, or the State could offer "a substantial justification for the adoption of the plan with the greater discriminatory impact." Id., at 1045. We granted certiorari to consider whether the type of impact at issue in this case is cognizable under 504 or its implementing regulations, , and we now reverse.IIThe first question the parties urge on the Court is whether proof of discriminatory animus is always required to establish a violation of 504 and its implementing regulations, or whether federal law also reaches action by a recipient of federal funding that discriminates against the handicapped by effect rather than by design. The State of Tennessee argues that 504 reaches only purposeful discrimination against the handicapped. As support for this position, the State relies heavily on our recent decision in Guardians Assn. v. Civil Service Comm'n of New York City, .In Guardians, we confronted the question whether Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., which prohibits discrimination against racial and ethnic minorities in programs receiving federal aid, reaches both intentional and disparate-impact discrimination.7 No opinion commanded a majority in Guardians, and Members of the Court offered widely varying interpretations of Title VI. Nonetheless, a two-pronged holding on the nature of the discrimination proscribed by Title VI emerged in that case. First, the Court held that Title VI itself directly reached only instances of intentional discrimination.8 Second, the Court held that actions having an unjustifiable disparate impact on minorities could be redressed through agency regulations designed to implement the purposes of Title VI.9 In essence, then, we held that Title VI had delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and were readily enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts.Guardians, therefore, does not support petitioners' blanket proposition that federal law proscribes only intentional discrimination against the handicapped. Indeed, to the extent our holding in Guardians is relevant to the interpretation of 504, Guardians suggests that the regulations implementing 504, upon which respondents in part rely, could make actionable the disparate impact challenged in this case.10 Moreover, there are reasons to pause before too quickly extending even the first prong of Guardians to 504. Cf. Consolidated Rail Corporation v. Darrone, , n. 13 (1984) (recognizing distinctions between Title VI and 504).11 Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference - of benign neglect.12 Thus, Representative Vanik, introducing the predecessor to 504 in the House,13 described the treatment of the handicapped as one of the country's "shameful oversights," which caused the handicapped to live among society "shunted aside, hidden, and ignored." 117 Cong. Rec. 45974 (1971). Similarly, Senator Humphrey, who introduced a companion measure in the Senate, asserted that "we can no longer tolerate the invisibility of the handicapped in America ... ." 118 Cong. Rec. 525-526 (1972). And Senator Cranston, the Acting Chairman of the Subcommittee that drafted 504,14 described the Act as a response to "previous societal neglect." 119 Cong. Rec. 5880, 5883 (1973). See also 118 Cong. Rec. 526 (1972) (statement of cosponsor Sen. Percy) (describing the legislation leading to the 1973 Act as a national commitment to eliminate the "glaring neglect" of the handicapped).15 Federal agencies and commentators on the plight of the handicapped similarly have found that discrimination against the handicapped is primarily the result of apathetic attitudes rather than affirmative animus.16 In addition, much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent. For example, elimination of architectural barriers was one of the central aims of the Act, see, e. g., S. Rep. No. 93-318, p. 4 (1973), yet such barriers were clearly not erected with the aim or intent of excluding the handicapped. Similarly, Senator Williams, the chairman of the Labor and Public Welfare Committee that reported out 504, asserted that the handicapped were the victims of "[d]iscrimination in access to public transportation" and "[d]iscrimination because they do not have the simplest forms of special educational and rehabilitation services they need ... ." 118 Cong. Rec. 3320 (1972). And Senator Humphrey, again in introducing the proposal that later became 504, listed, among the instances of discrimination that the section would prohibit, the use of "transportation and architectural barriers," the "discriminatory effect of job qualification ... procedures," and the denial of "special educational assistance" for handicapped children. Id., at 525-526. These statements would ring hollow if the resulting legislation could not rectify the harms resulting from action that discriminated by effect as well as by design.17 At the same time, the position urged by respondents - that we interpret 504 to reach all action disparately affecting the handicapped - is also troubling. Because the handicapped typically are not similarly situated to the nonhandicapped, respondents' position would in essence require each recipient of federal funds first to evaluate the effect on the handicapped of every proposed action that might touch the interests of the handicapped, and then to consider alternatives for achieving the same objectives with less severe disadvantage to the handicapped. The formalization and policing of this process could lead to a wholly unwieldy administrative and adjudicative burden. See Note, Employment Discrimination Against the Handicapped and Section 504 of the Rehabilitation Act: An Essay on Legal Evasiveness, 97 Harv. L. Rev. 997, 1008 (1984) (describing problems with pure disparate-impact model in context of employment discrimination against the handicapped). Had Congress intended 504 to be a National Environmental Policy Act18 for the handicapped, requiring the preparation of "Handicapped Impact Statements" before any action was taken by a grantee that affected the handicapped, we would expect some indication of that purpose in the statute or its legislative history. Yet there is nothing to suggest that such was Congress' purpose. Thus, just as there is reason to question whether Congress intended 504 to reach only intentional discrimination, there is similarly reason to question whether Congress intended 504 to embrace all claims of disparate-impact discrimination.Any interpretation of 504 must therefore be responsive to two powerful but countervailing considerations - the need to give effect to the statutory objectives and the desire to keep 504 within manageable bounds. Given the legitimacy of both of these goals and the tension between them, we decline the parties' invitation to decide today that one of these goals so overshadows the other as to eclipse it. While we reject the boundless notion that all disparate-impact showings constitute prima facie cases under 504, we assume without deciding that 504 reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped. On that assumption, we must then determine whether the disparate effect of which respondents complain is the sort of disparate impact that federal law might recognize.IIITo determine which disparate impacts 504 might make actionable, the proper starting point is Southeastern Community College v. Davis, , our major previous attempt to define the scope of 504.19 Davis involved a plaintiff with a major hearing disability who sought admission to a college to be trained as a registered nurse, but who would not be capable of safely performing as a registered nurse even with full-time personal supervision. We stated that, under some circumstances, a "refusal to modify an existing program might become unreasonable and discriminatory. Identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped [is] an important responsibility of HEW." Id., at 413. We held that the college was not required to admit Davis because it appeared unlikely that she could benefit from any modifications that the relevant HEW regulations required, id., at 409, and because the further modifications Davis sought - full-time, personal supervision whenever she attended patients and elimination of all clinical courses - would have compromised the essential nature of the college's nursing program, id., at 413-414. Such a "fundamental alternation in the nature of a program" was far more than the reasonable modifications the statute or regulations required. Id., at 410. Davis thus struck a balance between the statutory rights of the handicapped to be integrated into society and the legitimate interests of federal grantees in preserving the integrity of their programs: while a grantee need not be required to make "fundamental" or "substantial" modifications to accommodate the handicapped, it may be required to make "reasonable" ones. Compare ibid. with id., at 412-413.20 The balance struck in Davis requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers. The benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made.21 In this case, respondents argue that the 14-day rule, or any annual durational limitation, denies meaningful access to Medicaid services in Tennessee. We examine each of these arguments in turn.AThe 14-day limitation will not deny respondents meaningful access to Tennessee Medicaid services or exclude them from those services. The new limitation does not invoke criteria that have a particular exclusionary effect on the handicapped; the reduction, neutral on its face, does not distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having. Moreover, it cannot be argued that "meaningful access" to state Medicaid services will be denied by the 14-day limitation on inpatient coverage; nothing in the record suggests that the handicapped in Tennessee will be unable to benefit meaningfully from the coverage they will receive under the 14-day rule.22 The reduction in inpatient coverage will leave both handicapped and nonhandicapped Medicaid users with identical and effective hospital services fully available for their use, with both classes of users subject to the same durational limitation. The 14-day limitation, therefore, does not exclude the handicapped from or deny them the benefits of the 14 days of care the State has chosen to provide. Cf. Jefferson v. Hackney, .To the extent respondents further suggest that their greater need for prolonged inpatient care means that, to provide meaningful access to Medicaid services, Tennessee must single out the handicapped for more than 14 days of coverage, the suggestion is simply unsound. At base, such a suggestion must rest on the notion that the benefit provided through state Medicaid programs is the amorphous objective of "adequate health care." But Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs. Instead, the benefit provided through Medicaid is a particular package of health care services, such as 14 days of inpatient coverage. That package of services has the general aim of assuring that individuals will receive necessary medical care, but the benefit provided remains the individual services offered - not "adequate health care."The federal Medicaid Act makes this point clear. The Act gives the States substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage, as long as care and services are provided in "the best interests of the recipients." 42 U.S.C. 1396a(a)(19). The District Court found that the 14-day limitation would fully serve 95% of even handicapped individuals eligible for Tennessee Medicaid, and both lower courts concluded that Tennessee's proposed Medicaid plan would meet the "best interests" standard. That unchallenged conclusion23 indicates that Tennessee is free, as a matter of the Medicaid Act, to choose to define the benefit it will be providing as 14 days of inpatient coverage.Section 504 does not require the State to alter this definition of the benefit being offered simply to meet the reality that the handicapped have greater medical needs. To conclude otherwise would be to find that the Rehabilitation Act requires States to view certain illnesses, i. e., those particularly affecting the handicapped, as more important than others and more worthy of cure through government subsidization. Nothing in the legislative history of the Act supports such a conclusion. Cf. Doe v. Colautti, 592 F.2d 704 (CA3 1979) (State may limit covered-private-inpatient-psychiatric care to 60 days even though State sets no limit on duration of coverage for physical illnesses). Section 504 seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance. Southeastern Community College v. Davis, . The Act does not, however, guarantee the handicapped equal results from the provision of state Medicaid, even assuming some measure of equality of health could be constructed. Ibid.Regulations promulgated by the Department of Health and Human Services (HHS) pursuant to the Act further support this conclusion.24 These regulations state that recipients of federal funds who provide health services cannot "provide a qualified handicapped person with benefits or services that are not as effective (as defined in 84.4(b)) as the benefits or services provided to others." 45 CFR 84.52(a)(3)(1984). The regulations also prohibit a recipient of federal funding from adopting "criteria or methods of administration that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program with respect to the handicapped." 45 CFR 84.4(b)(4)(ii)(1984).25 While these regulations, read in isolation, could be taken to suggest that a state Medicaid program must make the handicapped as healthy as the nonhandicapped, other regulations reveal that HHS does not contemplate imposing such a requirement. Title 45 CFR 84.4(b)(2)(1984), referred to in the regulations quoted above, makes clear that"[f]or purposes of this part, aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement ... ." This regulation, while indicating that adjustments to existing programs are contemplated,26 also makes clear that Tennessee is not required to assure that its handicapped Medicaid users will be as healthy as its nonhandicapped users. Thus, to the extent respondents are seeking a distinct durational limitation for the handicapped, Tennessee is entitled to respond by asserting that the relevant benefit is 14 days of coverage. Because the handicapped have meaningful and equal access to that benefit, Tennessee is not obligated to reinstate its 20-day rule or to provide the handicapped with more than 14 days of inpatient coverage.BWe turn next to respondents' alternative contention, a contention directed not at the 14-day rule itself but rather at Tennessee's Medicaid plan as a whole. Respondents argue that the inclusion of any annual durational limitation on inpatient coverage in a state Medicaid plan violates 504. The thrust of this challenge is that all annual durational limitations discriminate against the handicapped because (1) the effect of such limitations falls most heavily on the handicapped and because (2) this harm could be avoided by the choice of other Medicaid plans that would meet the State's budgetary constraints without disproportionately disadvantaging the handicapped. Viewed in this light, Tennessee's current plan is said to inflict a gratuitous harm on the handicapped that denies them meaningful access to Medicaid services.Whatever the merits of this conception of meaningful access, it is clear that 504 does not require the changes respondents seek. In enacting the Rehabilitation Act and in subsequent amendments,27 Congress did focus on several substantive areas - employment,28 education,29 and the elimination of physical barriers to access30 - in which it considered the societal and personal costs of refusals to provide meaningful access to the handicapped to be particularly high.31 But nothing in the pre- or post-1973 legislative discussion of 504 suggests that Congress desired to make major inroads on the States' longstanding discretion to choose the proper mix of amount, scope, and duration limitations on services covered by state Medicaid, see Beal v. Doe, . And, more generally, we have already stated, supra, at 298-299, that 504 does not impose a general NEPA-like requirement on federal grantees.32 The costs of such a requirement would be far from minimal, and thus Tennessee's refusal to pursue this course does not, as respondents suggest, inflict a "gratuitous" harm on the handicapped. On the contrary, to require that the sort of broad-based distributive decision at issue in this case always be made in the way most favorable, or least disadvantageous, to the handicapped, even when the same benefit is meaningfully and equally offered to them, would be to impose a virtually unworkable requirement on state Medicaid administrators. Before taking any across-the-board action affecting Medicaid recipients, an analysis of the effect of the proposed change on the handicapped would have to be prepared. Presumably, that analysis would have to be further broken down by class of handicap - the change at issue here, for example, might be significantly less harmful to the blind, who use inpatient services only minimally, than to other subclasses of handicapped Medicaid recipients; the State would then have to balance the harms and benefits to various groups to determine, on balance, the extent to which the action disparately impacts the handicapped. In addition, respondents offer no reason that similar treatment would not have to be accorded other groups protected by statute or regulation from disparate-impact discrimination.It should be obvious that administrative costs of implementing such a regime would be well beyond the accommodations that are required under Davis. As a result, Tennessee need not redefine its Medicaid program to eliminate durational limitations on inpatient coverage, even if in doing so the State could achieve its immediate fiscal objectives in a way less harmful to the handicapped.IVThe 14-day rule challenged in this case is neutral on its face, is not alleged to rest on a discriminatory motive, and does not deny the handicapped access to or exclude them from the particular package of Medicaid services Tennessee has chosen to provide. The State has made the same benefit - 14 days of coverage - equally accessible to both handicapped and nonhandicapped persons, and the State is not required to assure the handicapped "adequate health care" by providing them with more coverage than the nonhandicapped. In addition, the State is not obligated to modify its Medicaid program by abandoning reliance on annual durational limitations on inpatient coverage. Assuming, then, that 504 or its implementing regulations reach some claims of disparate-impact discrimination, the effect of Tennessee's reduction in annual inpatient coverage is not among them. For that reason, the Court of Appeals erred in holding that respondents had established a prima facie violation of 504. The judgment below is accordingly reversed. It is so ordered. |
1 | Rehearing Denied Oct. 13, 1947. See . [ United States v. Bayer ], 533] Mr. Frederick Bernays Wiener, of Washington, D.C., for petitioner. Mr. Charles H. Tuttle, of New York City, for respondents, Samuel Bayer and others. Mr. Roger Robb, of Washington, D.C., for respondent, Walter V. Radovich. Mr. Justice JACKSON delivered the opinion of the Court. This is a sordid three-sided case. The Government charged all of the defendants with conspiring to defraud by depriving it of the faithful services of an Army officer. 18 U.S.C. 88, 18 U.S.C.A. 88, 35 Stat. 1096. The defendant Radovich, the officer in question, admits receipt of money from the other defendants and admits the questioned actions but denies the conspiracy, claiming the others induced him to accept a bribe. The defendants Bayer admit payment of the money but claim they were victims of extortion by Radovich. The jury found all guilty but recommended 'the highest degree of clemency for all three defendants.' The Court of Appeals for the Second Circuit reversed. 1 We granted the Government's petition for certiorari. 2 , 534] The principal facts are admitted and it is contested inferences which are decisive of the issue of guilt. None of the defendants testified. It would serve no purpose to review the evidence in detail. It justifies finding as follows: The Bayer brothers were manufacturers of yarn and thread and bore good names in their circle. Samuel had three sons in the service. One of them, Martin, with Melvin Usdan, a nephew of both Bayers, was involved in this case. Martin's health had not been robust. These two boys enlisted in the Air Corps on the day which Samuel had learned was the last on which a volunteer could select the branch in which to serve. They were almost immediately assigned as file clerks at Mitchel Field, Long Island. In January 1943, at a night club, Elias Bayer picked up the acquaintance of two officers stationed there. They were interested in obtaining uniforms at wholesale. The Bayers eventually aided them and others to obtain uniforms and paid for them though they claim to have understood that the officers were to pay for them. The acquaintance extended to other officers, and there was considerable entertainment. In April 1943 replacement of men in clerical positions by Women's Army Corps personnel was impending and one Col. Jacobson requested a transfer of these two boys with the effect, as Samuel understood it, of assuring them a year's assignment at Mitchel Field. Jacobson was given a dinner at the Waldorf and presented with four new automobile tires. This transfer placed the two boys under command of Radovich. By July there were rumors that the officers were receiving gifts from the Bayers and Radovich old Samuel that the boys would have to be transferred. Samuel wanted them kept at Mitchel Field. Radovich made a transfer from his unit to the medical detachment at the same field, which at first was disapproved and then , 535] he accomplished it by an exchange of personnel. After the transfer was made, Samuel paid Radovich some $1,900 or $2,000. In August 1943 the boys were again transferred, to a unit of airborne engineers for overseas duty. Both Bayers were greatly concerned about this and besought their friends among the officers to prevent it. Radovich had gone. He had joined an Air Commando group with high priority on personnel. But he several times talked with Captain Pepper, in charge of personnel, about transferring these boys from the overseas service to Air Transport Command for service only in continental United States. This could not be done. Then Radovich proposed to use his unit's higher priority to requisition the boys for it, to drop them as surplus, and thereupon to have them transferred to the Air Transport Command for domestic service. Pepper agreed this might be done. Radovich told Pepper it was 'worth his while' to get it done and he would see that doing it was worth Pepper's while. On November 22, 1943, Radovich requisitioned the transfer of the boys to his unit, to report November 25. Almost at once he also requested that they be transferred out of his unit and to Air Transport Command. This was effected shortly. Elias Bayer and one of name unknown to the record then delivered $5,000 to Radovich, who sent Pepper $500. Pepper testified that he destroyed the check. The Government from these facts and other evidence draws, as did the jury, the inference of conspiracy. The Bayers say they were victims of extortion and there is evidence that Radovich used the transfer to his own unit, one of extremely dangerous mission for which these boys had neither training nor aptitude, to force money out of the Bayers. Radovich denies the conspiracy and pleads certain courtmartial proceedings as a bar. , 536] The issue as to whether the Bayers tempted Radovich with a bribe or Radovich coerced them with threats is one with evidence and inferences both ways. Radovich was a gallant and skillful flier and explained his conduct thus: 'I was going overseas on a very hot job and didn't expect to come back, had the wife and the baby, figured I might just as well take care of them.' The Bayers were persons of some means, thoroughly frightened at the prospect of service for these boys in combat areas, and ready to use their means to foster the boys' safety. Whether they were victims of extortion or voluntary conspirators was for the jury to say, and the reversal does not rest on any inadequacy of proof. The grounds of reversal by the Court of Appeals raise for our consideration four questions of law. 1. The Bayers assigned as error the trial judge's charge as to conspiracy. The Court of Appeals unanimously said, 'There is no question but that this charge was an accurate, albeit brief, statement of the law.' But a majority thought that 'the statement was so cryptic as to be difficult to understand, if not to be actually misleading to a jury to laymen,' while one Judge thought it 'a welcome relief from much judicial verbosity.'3 We are not certain whether a reversal as to the Bayers would have been rested on this criticism of the charge alone. We do not consider objection to the charge to amount to reversible error. Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion. The trial judge in the light of the whole trial and with the jury before him may feel that to repeat the same words would make them no more clear, and to indulge in variations of statement might well confuse. How far any charge on technical questions of law is really understood by those of lay background would be difficult to , 537] ascertain, but it is certainly more evident in the living scene han in a c old record. In this case the jury asked a rereading of the charge on conspiracy. After repeating his instruction, the court inquired of the jury whether anything about it was not clear, or whether there was anything which they desired to have amplified. Nothing was suggested, although inquiry was made as to other matters. While many judges would have made a more extended charge, we think the trial court was within its area of discretion in his brevity. 2. The Bayers won reversal on another ground. After the jury had been out about four hours, it returned for instructions and asked to have parts of the summations of counsel read. The court declined to read parts. It was at this point that counsel for the Bayers asked to reopen the case and to put in evidence a long distance call slip from telephone company records. It was the memorandum of a call on November 24, 1943, from one we assume to be Radovich, spelled on the ticket 'Ravish,' from Arlington, Virginia, to Bayer's number in New York. The ticket tended to corroborate Samuel Bayer's secretary who testified to receiving such a call and who was the Bayers' chief witness on the subject of extortion. It also tended to contradict a Government witness. The matter had become of importance because of the District Attorney's argument that the Bayers' witness falsified her story. The court had already, at respondents' request, after the jury had been instructed, told them that a check of the Bayers' records showed a collect-call from Washington that day, but on request of counsel for Radovich the court had also stated that the record did not show who made the call. We will assume that the proffered evidence was relevant, corroborative of the Bayers' contentions, and had the offer been timely and properly verified, its exclusion would have been prejudicial error. , 538] But the item of evidence was disputed. The District Attorney had not seen the slip and did not admit the interpretation Bayer's counsel put upon it. Counsel for Radovich objected. To have admitted it over his objection might well have been prejudicial to him. The trial court had already, as he admitted, and as Radovich's counsel charged, given the Bayers the benefit of an irregular conveyance of information to the jury about the call which had not been regularly proved. Moreover, defendants offered no witness to authenticate the slip. As the trial court pointed out to counsel, his proposal was merely to hand to the jury 'an unverified memorandum from the telephone company.' Even during the trial such an offer, with no foundation in testimony and against objection, would have been inadequate. To have admitted it with no witness to identify or support it, would have cut off all cross-examination by both the Government and Radovich, and cross-examination would not have been unreasonable concerning a slip in which the Bayers wished Arlington to be taken as equivalent to Washington, and 'Ravish' to identify Radovich. The evidence, if put in after four hours of deliberation by the jury, would likely be of distorted importance. It surely would have been prejudicial to the Government for the District Attorney would then have had no chance to comment on it, summation having been closed. It also would have been prejudicial to the other defendant, Radovich, who, with no chance to cross- examine or to comment would be confronted with a new item of evidence against him. The court seems to have faced a dilemma, either to grant a mistrial and start the whole case over again or to deny the Bayers' request. Certainly a defendant who seeks thus to destroy a trial must bring his demand within the rules of proof and do something to excuse its untimeliness. Not only was the proffer of the evidence technically deficient, but no excuse for the untimeliness of the offer , 539] appeared. It is true, no doubt, that counsel was surprised at the argument made by the District Attorney which would have been less effective had this evidene been in. But Miss Solomon, an employee of defendants and, hence, an interested witness, was left to carry the burden of proving extortion without the corroboration of the testimony of her employer- defendants. This was defendants' right, but it should have been apparent that every bolster to her credibility would be important. It is well known that the telephone companies keep such records and they seem to have been easily obtained when asked for. We do not consider it reversible error to refuse to let this unsworn, unverified slip be put into evidence four hours after the case had been submitted to the jury. The judgment of reversal as to the Bayers was, in our opinion, erroneous. 3. Radovich's case raises additional questions. The first concerns the receipt in evidence of his confession of March 15 and 17, 1945. In absence of the jury, the Court heard testimony before admitting it and thereafter most of it was repeated before the jury. The proof against Radovich largely rested on the confession. After service of distinction in Burma, Radovich, then 24 years of age, was ordered to report to Mitchel Field. Upon arrival on August 9, 1944, he was placed under arrest and confined in the psychopathic ward in the station hospital. Here, for some time, he was denied callers, communication, comforts and facilities which it is needless to detail. Charges for court-martial were not promptly served on him as said to be required by the 70th Article of War, 10 U.S.C.A. 1542, nor was he taken before a magistrate for arraignment on any charges preferred by civil authorities. Military charges were finally served on May 30, 1945. Meanwhile, under such restraint, he made a first confession on September 5 or 6, 1944. Without more, we will assume this confession to be inadmissible under the rule , 540] laid down in McNabb v. United States, , and Anderson v. United States, . But this confession was neither offered nor received in evidence. A second confession made to Agent Flynn of the Federal Bureau of Investigation on March 15 and 17, 1945, was received, however, and the Court of Appeals has held it to be 'patently the fruit of the earlier one' 4 and equally inadmissible, citing Silverthorne Lumber Co. v. United States, A.L.R. 1426; Nardone v. United States, . At the time of this confession, Radovich was still at Mitchel Field but only under 'administrative restrictions,' which meant that he could not depart the limits of the base without leave. Flynn testified that Radovich had a number of conversations with F.B.I. agents. He had volunteered some facts not in the original statement and the meeting of March was to incorporate the whole story in one statement. Flynn warned him his statement might be used against him. Radovich requested the original statement and read it before making the second. The March statement is labeled a 'supplementary' statement and is 'basically' the same as the earlier one but went into more detail. The District Attorney refused to produce the first statement, which was not offered in evidence, and the court sustained him, having examined the statement and found no material conflict between them. Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so , 541] far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed. The Silverthorne and Nardone cases, relied on by the Court of Appeals, dd not deal with confessions but with evidence of a quite different category and do not control this question. The second confession in this case was made six months after the first. The only restraint under which Radovich labored was that he could not leave the base limits without permission. Certainly such a limitation on the freedom of one in the Army and subject to military discipline is not enough to make a confession voluntarily given after fair warning invalid as evidence against him. We hold the admission of the confession was not error. Cf. Lyons v. Oklahoma, . 4. Lastly, we must consider whether the court-martial proceedings instituted against Radovich bar this prosecution on the ground of double jeopardy. Radovich was tried and, on June 29, 1945, convicted by court- martial of violating the 95th and 96th Articles of War, 10 U.S.C. 1567, 1568, 10 U.S.C.A. 1567, 1568, 41 Stat. 806-807. The offense charged and found was that of conduct unbecoming an officer and gentleman, and of conduct to the prejudice of good order and military discipline and of a nature to bring discredit upon the military service. As to each offense, the specifications set forth receipt of the same payments of money from the Bayers for effecting the same transfers that are involved in this indictment. Radovich's plea in bar was overruled by the trial court upon the ground that the conspiracy charged in the indictment was not the same offense as that under the Articles of War. The Court of Appeals disapproved this ground but left the issue of double jeopardy to be decided after retrial because of doubt meanwhile raised about the status of the military judgment. , 542] The Court of Appeals thought the identity of the specifications in the court-martial proceedings and the offense charged in the indictment, and the likelihood that the military court did not distinguish carefully between the passing of the money and the arrangement to that end, required the plea in bar to be sustained under Grafton v. United States, Ann.Cas. 640. In that case a soldier on guard duty in the Philippines shot and killed two Filipinos. He was tried by court-martial on charge of homicide and acquitted. A prosecuting attorney of the Islands then filed in Provincial Court a charge of 'assassination' on identical facts. This Court found not merely the evidence but the offense charged to be identical in everything but name and held retrial of the same offense in Philippine Courts to constitute double jeopardy. But here we think the District Court correctly ruled that the two charges did not accuse of identical offenses. The indictment is for conspiring and we have but recently reviewed the nature of that offense. Pinkerton v. United States, . Its essence is in the agreement or confederation to commit a crime, and that is what is punishable as a conspiracy, if any overt act is taken in pursuit of it. The agreement is punishable whether or not the contemplated crime is consummated. But the same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself. Pinkerton v. United States, , 1182. In the court-martial proceedings, Radovich alone was accused. No conspiracy was alleged and the specification was confined to Radovich's receipt of money for effecting transfers. This was a substantive offense on his part under the Articles of War. The agreement with others to commit it constituted a separate offense, although among the overt acts proved to establish the conspiracy were the same payments and transfers. Both offenses could be , 543] charged and conviction had on each. The plea in bar was properly overruled. This conclusion makes it unnecessary to decide whether the disapproval of the court-martial judgment for errors in trialand withou t ordering retrial creates a status for the military judgment such that in no event would it be available to bar this prosecution. The judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed. Mr. Justice FRANKFURTER would affirm the decision of the Circuit Court of Appeals substantially for the reasons set forth below by Judge Clark in reversing the conviction of the Bayers, which, under a charge of conspiracy, carries with it a reversal as to Radovich. 156 F.2d 964, at pages 967-968. Mr. Justice RUTLEDGE is of the view that the judgment of the Circuit Court of Appeals should be affirmed insofar as it relates to the respondent Radovich, for the reasons stated in that court's opinion. 156 F. 2d 964, at pages 968-970. |
7 | In 1970, Congress created the National Railroad Passenger Corporation (Amtrak). Congress has given Amtrak priority to use track systems owned by the freight railroads for passenger rail travel, at rates agreed to by the parties or, in case of a dispute, set by the Surface Transportation Board. And in 2008, Congress gave Amtrak and the Federal Railroad Administration (FRA) joint authority to issue "metrics and standards" addressing the performance and scheduling of passenger railroad services, see §207(a), 122 Stat. 4907, including Amtrak's on-time performance and train delays caused by host railroads. Respondent, the Association of American Railroads, sued petitioners — the Department of Transportation, the FRA, and two officials — claiming that the metrics and standards must be invalidated because it is unconstitutional for Congress to allow and direct a private entity like Amtrak to exercise joint authority in their issuance. Its argument rested on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected respondent's claims, but the District of Columbia Circuit reversed as to the separation of powers claim, reasoning in central part that Amtrak is a private corporation and thus cannot constitutionally be granted regulatory power under §207. Held: For purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Pp. 6-12. (a) In concluding otherwise, the Court of Appeals relied on the statutory command that Amtrak "is not a department, agency, or instrumentality of the United States Government," 49 U. S. C. §24301(a)(3), and the pronouncement that Amtrak "shall be operated and managed as a for profit corporation," §24301(a)(2). But congressional pronouncements are not dispositive of Amtrak's status as a governmental entity for purposes of separation of powers analysis under the Constitution, and an independent inquiry reveals the Court of Appeals' premise that Amtrak is a private entity was flawed. As Amtrak's ownership and corporate structure show, the political branches control most of Amtrak's stock and its Board of Directors, most of whom are appointed by the President, §24302(a)(1), confirmed by the Senate, ibid., and understood by the Executive Branch to be removable by the President at will. The political branches also exercise substantial, statutorily mandated supervision over Amtrak's priorities and operations. See, e.g., §24315. Also of significance, Amtrak is required by statute to pursue broad public objectives, see, e.g., §§24101(b), 24307(a); certain aspects of Amtrak's day-to-day operations are mandated by Congress, see, e.g., §§24101(c)(6), 24902(b); and Amtrak has been dependent on federal financial support during every year of its existence. Given the combination of these unique features and Amtrak's significant ties to the Government, Amtrak is not an autonomous private enterprise. Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit. Thus, in jointly issuing the metrics and standards with the FRA, Amtrak acted as a governmental entity for separation of powers purposes. And that exercise of governmental power must be consistent with the Constitution, including those provisions relating to the separation of powers. Pp. 6-10. (b) Respondent's reliance on congressional statements about Amtrak's status is misplaced. Lebron v. National Railroad Passenger Corp., 513 U. S. 374, teaches that, for purposes of Amtrak's status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress' disclaimer of Amtrak's governmental status. Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor, for the political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Pp. 10-11. (c) The Court of Appeals may address in the first instance any properly preserved issues respecting the lawfulness of the metrics and standards that may remain in this case, including questions implicating the Constitution's structural separation of powers and the Appointments Clause. Pp. 11-12.721 F. 3d 666, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment.Opinion of the Court 575 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-1080DEPARTMENT OF TRANSPORTATION, et al., PETITIONERS v. ASSOCIATION OFAMERICAN RAILROADSon writ of certiorari to the united states court of appeals for the district of columbia circuit[March 9, 2015] Justice Kennedy delivered the opinion of the Court. In 1970, Congress created the National Railroad Passenger Corporation, most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Administration (FRA) joint authority to issue "metrics and standards" that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standards have substantial and adverse effects upon its members' freight services, respondent — the Association of American Railroads — filed this suit to challenge their validity. The defendants below, petitioners here, are the Department of Transportation, the FRA, and two individuals sued in their official capacity. Respondent alleges the metrics and standards must be invalidated on the ground that Amtrak is a private entity and it was therefore unconstitutional for Congress to allow and direct it to exercise joint authority in their issuance. This argument rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected both of respondent's claims. The Court of Appeals for the District of Columbia Circuit reversed, finding that, for purposes of this dispute, Amtrak is a private entity and that Congress violated nondelegation principles in its grant of joint authority to Amtrak and the FRA. On that premise the Court of Appeals invalidated the metrics and standards. Having granted the petition for writ of certiorari, 573 U. S. ___ (2014), this Court now holds that, for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Although Amtrak's actions here were governmental, substantial questions respecting the lawfulness of the metrics and standards — including questions implicating the Constitution's structural separation of powers and the Appointments Clause, U. S. Const., Art. II, §2, cl. 2 — may still remain in the case. As those matters have not yet been passed upon by the Court of Appeals, this case is remanded.IA Amtrak is a corporation established and authorized by a detailed federal statute enacted by Congress for no less a purpose than to preserve passenger services and routes on our Nation's railroads. See Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 383-384 (1995); National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451, 453-457 (1985); see also Rail Passenger Service Act of 1970, 84 Stat. 1328. Congress recognized that Amtrak, of necessity, must rely for most of its operations on track systems owned by the freight railroads. So, as a condition of relief from their common-carrier duties, Congress required freight railroads to allow Amtrak to use their tracks and facilities at rates agreed to by the parties — or in the event of disagreement to be set by the Interstate Commerce Commission (ICC). See 45 U. S. C. §§561, 562 (1970 ed.). The Surface Transportation Board (STB) now occupies the dispute-resolution role originally assigned to the ICC. See 49 U. S. C. §24308(a) (2012 ed.). Since 1973, Amtrak has received a statutory preference over freight transportation in using rail lines, junctions, and crossings. See §24308(c). The metrics and standards at issue here are the result of a further and more recent enactment. Concerned by poor service, unreliability, and delays resulting from freight traffic congestion, Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. See 122 Stat. 4907. Section 207(a) of the PRIIA provides for the creation of the metrics and standards: "Within 180 days after the date of enactment of this Act, the Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services." Id., at 4916.Section 207(d) of the PRIIA further provides: "If the development of the metrics and standards is not completed within the 180-day period required by subsection (a), any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." Id., at 4917. The PRIIA specifies that the metrics and standards created under §207(a) are to be used for a variety of purposes. Section 207(b) requires the FRA to "publish a quarterly report on the performance and service quality of intercity passenger train operations" addressing the specific elements to be measured by the metrics and standards. Id., at 4916-4917. Section 207(c) provides that, "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agreements." Id., at 4917. And §222(a) obliges Amtrak, within one year after the metrics and standards are established, to "develop and implement a plan to improve on-board service pursuant to the metrics and standards for such service developed under [§207(a)]." Id., at 4932. Under §213(a) of the PRIIA, the metrics and standards also may play a role in prompting investigations by the STB and in subsequent enforcement actions. For instance, "[i]f the on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters," the STB may initiate an investigation "to determine whether and to what extent delays . . . are due to causes that could reasonably be addressed . . . by Amtrak or other intercity passenger rail operators." Id., at 4925-4926. While conducting an investigation under §213(a), the STB "has authority to review the accuracy of the train performance data and the extent to which scheduling and congestion contribute to delays" and shall "obtain information from all parties involved and identify reasonable measures and make recommendations to improve the service, quality, and on-time performance of the train." Id., at 4926. Following an investigation, the STB may award damages if it "determines that delays or failures to achieve minimum standards . . . are attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation." Ibid. The STB is further empowered to "order the host rail carrier to remit" damages "to Amtrak or to an entity for which Amtrak operates intercity passenger rail service." Ibid.B In March 2009, Amtrak and the FRA published a notice in the Federal Register inviting comments on a draft version of the metrics and standards. App. 75-76. The final version of the metrics and standards was issued jointly by Amtrak and the FRA in May 2010. Id., at 129-144. The metrics and standards address, among other matters, Amtrak's financial performance, its scores on consumer satisfaction surveys, and the percentage of passenger-trips to and from underserved communities. Of most importance for this case, the metrics and standards also address Amtrak's on-time performance and train delays caused by host railroads. The standards associated with the on-time performance metrics require on-time performance by Amtrak trains at least 80% to 95% of the time for each route, depending on the route and year. Id., at 133-135. With respect to "host-responsible delays"--that is to say, delays attributed to the railroads along which Amtrak trains travel — the metrics and standards provide that "[d]elays must not be more than 900 minutes per 10,000 Train-Miles." Id., at 138. Amtrak conductors determine responsibility for particular delays. Ibid., n. 23. In the District Court for the District of Columbia, respondent alleged injury to its members from being required to modify their rail operations, which mostly involve freight traffic, to satisfy the metrics and standards. Respondent claimed that §207 "violates the nondelegation doctrine and the separation of powers principle by placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very industry it is supposed to regulate." Id., at 176-177, Complaint ¶51. Respondent also asserted that §207 violates the Fifth Amendment Due Process Clause by "[v]esting the coercive power of the government" in Amtrak, an "interested private part[y]." Id., at 177, ¶¶53-54. In its prayer for relief respondent sought, among other remedies, a declaration of §207's unconstitutionality and invalidation of the metrics and standards. Id., at 177. The District Court granted summary judgment to petitioners on both claims. See 865 F. Supp. 2d 22 (DC 2012). Without deciding whether Amtrak must be deemed private or governmental, it rejected respondent's nondelegation argument on the ground that the FRA, the STB, and the political branches exercised sufficient control over promulgation and enforcement of the metrics and standards so that §207 is constitutional. See id., at 35. The Court of Appeals for the District of Columbia Circuit reversed the judgment of the District Court as to the nondelegation and separation of powers claim, reasoning in central part that because "Amtrak is a private corporation with respect to Congress's power to delegate . . . authority," it cannot constitutionally be granted the "regulatory power prescribed in §207." 721 F. 3d 666, 677 (2013). The Court of Appeals did not reach respondent's due process claim. See ibid.II In holding that Congress may not delegate to Amtrak the joint authority to issue the metrics and standards — authority it described as "regulatory power," ibid.--the Court of Appeals concluded Amtrak is a private entity for purposes of determining its status when considering the constitutionality of its actions in the instant dispute. That court's analysis treated as controlling Congress' statutory command that Amtrak " 'is not a department, agency, or instrumentality of the United States Government.' " Id., at 675 (quoting 49 U. S. C. §24301(a)(3)). The Court of Appeals also relied on Congress' pronouncement that Amtrak " 'shall be operated and managed as a for-profit corporation.' " 721 F. 3d, at 675 (quoting §24301(a)(2)); see also id., at 677 ("Though the federal government's involvement in Amtrak is considerable, Congress has both designated it a private corporation and instructed that it be managed so as to maximize profit. In deciding Amtrak's status for purposes of congressional delegations, these declarations are dispositive"). Proceeding from this premise, the Court of Appeals concluded it was impermissible for Congress to "delegate regulatory authority to a private entity." Id., at 670; see also ibid. (holding Carter v. Carter Coal Co., 298 U. S. 238 (1936), prohibits any such delegation of authority). That premise, however, was erroneous. Congressional pronouncements, though instructive as to matters within Congress' authority to address, see, e.g., United States ex rel. Totten v. Bombardier Corp., 380 F. 3d 488, 491-492 (CADC 2004) (Roberts, J.), are not dispositive of Amtrak's status as a governmental entity for purposes of separation of powers analysis under the Constitution. And an independent inquiry into Amtrak's status under the Constitution reveals the Court of Appeals' premise was flawed. It is appropriate to begin the analysis with Amtrak's ownership and corporate structure. The Secretary of Transportation holds all of Amtrak's preferred stock and most of its common stock. Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. 49 U. S. C. §24302(a)(1). These eight Board members, in turn, select Amtrak's president. §24302(a)(1)(B); §24303(a). Amtrak's Board members are subject to salary limits set by Congress, §24303(b); and the Executive Branch has concluded that all appointed Board members are removable by the President without cause, see 27 Op. Atty. Gen. 163 (2003). Under further statutory provisions, Amtrak's Board members must possess certain qualifications. Congress has directed that the President make appointments based on an individual's prior experience in the transportation industry, §24302(a)(1)(C), and has provided that not more than five of the seven appointed Board members be from the same political party, §24302(a)(3). In selecting Amtrak's Board members, moreover, the President must consult with leaders of both parties in both Houses of Congress in order to "provide adequate and balanced representation of the major geographic regions of the United States served by Amtrak." §24302(a)(2). In addition to controlling Amtrak's stock and Board of Directors the political branches exercise substantial, statutorily mandated supervision over Amtrak's priorities and operations. Amtrak must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time performance. §24315. The Freedom of Information Act applies to Amtrak in any year in which it receives a federal subsidy, 5 U. S. C. §552, which thus far has been every year of its existence. Pursuant to its status under the Inspector General Act of 1978 as a " 'designated Federal entity,' " 5 U. S. C. App. §8G(a)(2), p. 521, Amtrak must maintain an inspector general, much like governmental agencies such as the Federal Communications Commission and the Securities and Exchange Commission. Furthermore, Congress conducts frequent oversight hearings into Amtrak's budget, routes, and prices. See, e.g., Hearing on Reviewing Alternatives to Amtrak's Annual Losses in Food and Beverage Service before the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform, 113th Cong., 1st Sess., 5 (2013) (statement of Thomas J. Hall, chief of customer service, Amtrak); Hearing on Amtrak's Fiscal Year 2014 Budget: The Starting Point for Reauthorization before the Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Committee on Transportation and Infrastructure, 113th Cong., 1st Sess., p. 6 (2013) (statement of Joseph H. Boardman, president and chief executive officer, Amtrak). It is significant that, rather than advancing its own private economic interests, Amtrak is required to pursue numerous, additional goals defined by statute. To take a few examples: Amtrak must "provide efficient and effective intercity passenger rail mobility," 49 U. S. C. §24101(b); "minimize Government subsidies," §24101(d); provide reduced fares to the disabled and elderly, §24307(a); and ensure mobility in times of national disaster, §24101(c)(9). In addition to directing Amtrak to serve these broad public objectives, Congress has mandated certain aspects of Amtrak's day-to-day operations. Amtrak must maintain a route between Louisiana and Florida. §24101(c)(6). When making improvements to the Northeast corridor, Amtrak must apply seven considerations in a specified order of priority. §24902(b). And when Amtrak purchases materials worth more than $1 million, these materials must be mined or produced in the United States, or manufactured substantially from components that are mined, produced, or manufactured in the United States, unless the Secretary of Transportation grants an exemption. §24305(f). Finally, Amtrak is also dependent on federal financial support. In its first 43 years of operation, Amtrak has received more than $41 billion in federal subsidies. In recent years these subsidies have exceeded $1 billion annually. See Brief for Petitioners 5, and n. 2, 46. Given the combination of these unique features and its significant ties to the Government, Amtrak is not an autonomous private enterprise. Among other important considerations, its priorities, operations, and decisions are extensively supervised and substantially funded by the political branches. A majority of its Board is appointed by the President and confirmed by the Senate and is understood by the Executive to be removable by the President at will. Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit. Thus, in its joint issuance of the metrics and standards with the FRA, Amtrak acted as a governmental entity for purposes of the Constitution's separation of powers provisions. And that exercise of governmental power must be consistent with the design and requirements of the Constitution, including those provisions relating to the separation of powers. Respondent urges that Amtrak cannot be deemed a governmental entity in this respect. Like the Court of Appeals, it relies principally on the statutory directives that Amtrak "shall be operated and managed as a for profit corporation" and "is not a department, agency, or instrumentality of the United States Government." §§24301(a)(2)-(3). In light of that statutory language, respondent asserts, Amtrak cannot exercise the joint authority entrusted to it and the FRA by §207(a). On that point this Court's decision in Lebron v. National Railroad Passenger Corp., 513 U. S. 374 (1995), provides necessary instruction. In Lebron, Amtrak prohibited an artist from installing a politically controversial display in New York City's Penn Station. The artist sued Amtrak, alleging a violation of his First Amendment rights. In response Amtrak asserted that it was not a governmental entity, explaining that "its charter's disclaimer of agency status prevent[ed] it from being considered a Government entity." Id., at 392. The Court rejected this contention, holding "it is not for Congress to make the final determination of Amtrak's status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions." Ibid. To hold otherwise would allow the Government "to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form." Id., at 397. Noting that Amtrak "is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees," id., at 398, and that the Government exerts its control over Amtrak "not as a creditor but as a policymaker," the Court held Amtrak "is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution." Id., at 394, 399. Lebron teaches that, for purposes of Amtrak's status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress' disclaimer of Amtrak's governmental status. Lebron involved a First Amendment question, while in this case the challenge is to Amtrak's joint authority to issue the metrics and standards. But "[t]he structural principles secured by the separation of powers protect the individual as well." Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 10). Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case.III Because the Court of Appeals' decision was based on the flawed premise that Amtrak should be treated as a private entity, that opinion is now vacated. On remand, the Court of Appeals, after identifying the issues that are properly preserved and before it, will then have the instruction of the analysis set forth here. Respondent argues that the selection of Amtrak's president, who is appointed "not by the President . . . but by the other eight Board Members," "call[s] into question Amtrak's structure under the Appointments Clause," Brief for Respondent 42; that §207(d)'s arbitrator provision "is a plain violation of the nondelegation principle" and the Appointments Clause requiring invalidation of §207(a), id., at 26; and that Congress violated the Due Process Clause by "giv[ing] a federally chartered, nominally private, for-profit corporation regulatory authority over its own industry," id., at 43. Petitioners, in turn, contend that "the metrics and standards do not reflect the exercise of 'rulemaking' authority or permit Amtrak to 'regulate other private entities,' " and thus do not raise nondelegation concerns. Reply Brief 5 (internal citation omitted). Because "[o]urs is a court of final review and not first view," Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 12) (internal quotation marks omitted), those issues — to the extent they are properly before the Court of Appeals — should be addressed in the first instance on remand. The judgment of the Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Alito, J., concurring 575 U. S. ____ (2015)No. 13-1080DEPARTMENT OF TRANSPORTATION, et al., PETITIONERS v. ASSOCIATION OF AMERICAN RAILROADSon writ of certiorari to the united states court of appeals for the district of columbia circuit[March 9, 2015] Justice Alito, concurring. I entirely agree with the Court that Amtrak is "a federal actor or instrumentality," as far as the Constitution is concerned. Ante, at 11. "Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit." Ante, at 10. The Government even "specif[ies] many of its day-to-day operations" and "for all practical purposes, set[s] and supervise[s] its annual budget." Ante, at 11. The District of Columbia Circuit understandably heeded 49 U. S. C. §24301(a)(3), which proclaims that Amtrak "is not a department, agency, or instrumentality of the United States Government," but this statutory label cannot control for constitutional purposes. (Emphasis added). I therefore join the Court's opinion in full. I write separately to discuss what follows from our judgment.I This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability. When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences. One way the Government can regulate without accountability is by passing off a Government operation as an independent private concern. Given this incentive to regulate without saying so, everyone should pay close attention when Congress "sponsor[s] corporations that it specifically designate[s] not to be agencies or establishments of the United States Government." Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 390 (1995). Recognition that Amtrak is part of the Federal Government raises a host of constitutional questions.II I begin with something that may seem mundane on its face but that has a significant relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 ("[A]ll executive and judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution"); Art. II, §3, cl. 6 (The President "shall Commission all the Officers of the United States"). There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) ("[A] Representative . . . does not become a member of the House until he takes the oath of office"); 15 Op. Atty. Gen. 280, 281 (1877) (similar).1 And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison, 1 Cranch 137, 156 (1803); see also id., at 179 (noting the importance of an oath). Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission. Here, respondent tells the Court that "Amtrak's board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority." Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 11, those who run it need to satisfy basic constitutional requirements.III I turn next to the Passenger Rail Investment and Improvement Act of 2008's (PRIIA) arbitration provision. 122 Stat. 4907. Section 207(a) of the PRIIA provides that "the Federal Railroad Administration [(FRA)] and Amtrak shall jointly . . . develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations." Id., at 4916. In addition, §207(c) commands that "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate [those] metrics and standards . . . into their access and service agreements." Under §213(a) of the PRIIA, moreover, "the metrics and standards also may play a role in prompting investigations by the [Surface Transportation Board (STB)] and in subsequent enforcement actions." Ante, at 4. This scheme is obviously regulatory. Section 207 provides that Amtrak and the FRA "shall jointly" create new standards, cf. e.g., 12 U. S. C. §1831m(g)(4)(B) ("The appropriate Federal banking agencies shall jointly issue rules of practice to implement this paragraph"), and that Amtrak and private rail carriers "shall incorporate" those standards into their agreements whenever "practicable," cf. e.g., BP America Production Co. v. Burton, 549 U. S. 84, 88 (2006) (characterizing a command to " 'audit and reconcile, to the extent practicable, all current and past lease accounts' " as creating "duties" for the Secretary of the Interior (quoting 30 U. S. C. §1711(c)(1))). The fact that private rail carriers sometimes may be required by federal law to include the metrics and standards in their contracts by itself makes this a regulatory scheme. "As is often the case in administrative law," moreover, "the metrics and standards lend definite regulatory force to an otherwise broad statutory mandate." 721 F. 3d 666, 672 (CADC 2013). Here, though the nexus between regulation, statutory mandate, and penalty is not direct (for, as the Government explains, there is a pre-existing requirement that railroads give preference to Amtrak, see Brief for Petitioners 31-32 (citing 49 U. S. C. §§24308(c), (f )), the metrics and standards inherently have a "coercive effect," Bennett v. Spear, 520 U. S. 154, 169 (1997), on private conduct. Even the United States concedes, with understatement, that there is "perhaps some incentivizing effect associated with the metrics and standards." Brief for Petitioners 30. Because obedience to the metrics and standards materially reduces the risk of liability, railroads face powerful incentives to obey. See Bennett, supra, at 169-171. That is regulatory power. The language from §207 quoted thus far should raise red flags. In one statute, Congress says Amtrak is not an "agency." 49 U. S. C. §24301(a)(3). But then Congress commands Amtrak to act like an agency, with effects on private rail carriers. No wonder the D. C. Circuit ruled as it did. The oddity continues, however. Section 207(d) of the PRIIA also provides that if the FRA and Amtrak cannot agree about what the regulatory standards should say, then "any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." 122 Stat. 4917. The statute says nothing more about this "binding arbitration," including who the arbitrator should be. Looking to Congress' use of the word "arbitrator," respondent argues that because the arbitrator can be a private person, this provision by itself violates the private nondelegation doctrine. The United States, for its part, urges the Court to read the term "arbitrator" to mean "public arbitrator" in the interests of constitutional avoidance. No one disputes, however, that the arbitration provision is fair game for challenge, even though no arbitration occurred. The obvious purpose of the arbitration provision was to force Amtrak and the FRA to compromise, or else a third party would make the decision for them. The D. C. Circuit is correct that when Congress enacts a compromise-forcing mechanism, it is no good to say that the mechanism cannot be challenged because the parties compromised. See 721 F. 3d, at 674. "[S]tack[ing] the deck in favor of compromise" was the whole point. Ibid. Unsurprisingly, this Court has upheld standing to bring a separation-of-powers challenge in comparable circumstances. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 264-265 (1991) ("[T]his 'personal injury' to respondents is 'fairly traceable' to the Board of Review's veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA's Board of Directors" (emphasis added)); see also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 512, n. 12 (2010) ("We cannot assume . . . that the Chairman would have made the same appointments acting alone"). As to the merits of this arbitration provision, I agree with the parties: If the arbitrator can be a private person, this law is unconstitutional. Even the United States accepts that Congress "cannot delegate regulatory authority to a private entity." 721 F. 3d, at 670. Indeed, Congress, vested with enumerated "legislative Powers," Art. I, §1, cannot delegate its "exclusively legislative" authority at all. Wayman v. Southard, 10 Wheat. 1, 42-43 (1825) (Marshall, C. J.). The Court has invalidated statutes for that very reason. See A. L. A. Schechter Poultry Corp. v. United States; 295 U. S. 495 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); see also Mistretta v. United States, 488 U. S. 361, 373, n. 7 (1989) (citing, inter alia, Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 646 (1980)). The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. See INS v. Chadha, 462 U. S. 919, 959 (1983). It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints. The Constitution's deliberative process was viewed by the Framers as a valuable feature, see, e.g., Manning, Lawmaking Made Easy, 10 Green Bag 2d 202 (2007) ("[B]icameralism and presentment make lawmaking difficult by design" (citing, inter alia, The Federalist No. 62, p. 378 (J. Madison), and No. 63, at 443-444 (A. Hamilton))), not something to be lamented and evaded. Of course, this Court has " 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.' " Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 474-475 (2001) (quoting Mistretta, supra, at 416 (Scalia, J., dissenting)). But the inherent difficulty of line-drawing is no excuse for not enforcing the Constitution. Rather, the formal reason why the Court does not enforce the nondelegation doctrine with more vigilance is that the other branches of Government have vested powers of their own that can be used in ways that resemble lawmaking. See, e.g., Arlington v. FCC, 569 U. S. ___, ___-___, n. 4 (2013) (slip op., at 13-14, n. 4) (explaining that agency rulemakings "are exercises of — indeed, under our constitutional structure they must be exercises of — the 'executive Power' " (quoting Art. II, §1, cl. 1)). Even so, "the citizen confronting thousands of pages of regulations — promulgated by an agency directed by Congress to regulate, say, 'in the public interest'--can perhaps be excused for thinking that it is the agency really doing the legislating." 569 U. S., at ___-___ (Roberts, C. J., dissenting) (slip op., at 4-5). When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with "legislative Powers." Art. I, §1. Nor are they vested with the "executive Power," Art. II, §1, cl. 1, which belongs to the President. Indeed, it raises "[d]ifficult and fundamental questions" about "the delegation of Executive power" when Congress authorizes citizen suits. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 197 (2000) (Kennedy, J., concurring). A citizen suit to enforce existing law, however, is nothing compared to delegated power to create new law. By any measure, handing off regulatory power to a private entity is "legislative delegation in its most obnoxious form." Carter v. Carter Coal Co., 298 U. S. 238, 311 (1936). For these reasons, it is hard to imagine how delegating "binding" tie-breaking authority to a private arbitrator to resolve a dispute between Amtrak and the FRA could be constitutional. No private arbitrator can promulgate binding metrics and standards for the railroad industry. Thus, if the term "arbitrator" refers to a private arbitrator, or even the possibility of a private arbitrator, the Constitution is violated. See 721 F. 3d, at 674 ("[T]hat the recipients of illicitly delegated authority opted not to make use of it is no antidote. It is Congress's decision to delegate that is unconstitutional" (citing Whitman, supra, at 473)). As I read the Government's briefing, it does not dispute any of this (other than my characterization of the PRIIA as regulatory, which it surely is). Rather than trying to defend a private arbitrator, the Government argues that the Court, for reasons of constitutional avoidance, should read the word "arbitrator" to mean "public arbitrator." The Government's argument, however, lurches into a new problem: Constitutional avoidance works only if the statute is susceptible to an alternative reading and that such an alternative reading would itself be constitutional. Here, the Government's argument that the word "arbitrator" does not mean "private arbitrator" is in some tension with the ordinary meaning of the word. Although Government arbitrators are not unheard of, we usually think of arbitration as a form of "private dispute resolution." See, e.g., Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp., 559 U. S. 662, 685 (2010). Likewise, the appointment of a public arbitrator here would raise serious questions under the Appointments Clause. Unless an "inferior Office[r]" is at issue, Article II of the Constitution demands that the President appoint all "Officers of the United States" with the Senate's advice and consent. Art. II, §2, cl. 2. This provision ensures that those who exercise the power of the United States are accountable to the President, who himself is accountable to the people. See Free Enterprise Fund, 561 U. S., at 497-498 (citing The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton)). The Court has held that someone "who exercis[es] significant authority pursuant to the laws of the United States" is an "Officer," Buckley v. Valeo, 424 U. S. 1, 126 (1976) (per curiam), and further that an officer who acts without supervision must be a principal officer, see Edmond v. United States, 520 U. S. 651, 663 (1997) ("[W]e think it evident that 'inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate"). While some officers may be principal even if they have a supervisor, it is common ground that an officer without a supervisor must be principal. See id., at 667 (Souter, J., concurring in part and concurring in judgment). Here, even under the Government's public-arbitrator theory, it looks like the arbitrator would be making law without supervision — again, it is "binding arbitration." Nothing suggests that those words mean anything other than what they say. This means that an arbitrator could set the metrics and standards that "shall" become part of a private railroad's contracts with Amtrak whenever "practicable." As to that "binding" decision, who is the supervisor? Inferior officers can do many things, but nothing final should appear in the Federal Register unless a Presidential appointee has at least signed off on it. See 75 Fed. Reg. 26839 (2010) (placing the metrics and standards in the Federal Register); Edmond, supra, at 665.IV Finally, the Board of Amtrak, and, in particular, Amtrak's president, also poses difficult constitutional problems. As the Court observes, "Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. These eight Board members, in turn, select Amtrak's president." Ante, at 7 (citation omitted). In other words, unlike everyone else on the Board, Amtrak's president has not been appointed by the President and confirmed by the Senate. As explained above, accountability demands that principal officers be appointed by the President. See Art. II, §2, cl. 2. The President, after all, must have "the general administrative control of those executing the laws," Myers v. United States, 272 U. S. 52, 164 (1926), and this principle applies with special force to those who can "exercis[e] significant authority" without direct supervision, Buckley, supra, at 126; see also Edmond, supra, at 663. Unsurprisingly then, the United States defends the non-Presidential appointment of Amtrak's president on the ground that the Amtrak president is merely an inferior officer. Given Article II, for the Government to argue anything else would be surrender. This argument, however, is problematic. Granted, a multimember body may head an agency. See Free Enterprise Fund, supra, at 512-513. But those who head agencies must be principal officers. See Edmond, supra, at 663. It would seem to follow that because agency heads must be principal officers, every member of a multimember body heading an agency must also be a principal officer. After all, every member of a multimember body could cast the deciding vote with respect to a particular decision. One would think that anyone who has the unilateral authority to tip a final decision one way or the other cannot be an inferior officer. The Government's response is tucked away in a footnote. It contends that because Amtrak's president serves at the pleasure of the other Board members, he is only an inferior officer. See Reply Brief for Petitioners 14, n. 6. But the Government does not argue that the president of Amtrak cannot cast tie-breaking votes. Assuming he can vote when the Board of Directors is divided, it makes no sense to think that the side with which the president agrees will demand his removal. In any event, even assuming that Amtrak's president could be an inferior officer, there would still be another problem: Amtrak's Board may lack constitutional authority to appoint inferior officers. The Appointments Clause provides an exception from the ordinary rule of Presidential appointment for "inferior Officers," but that exception has accountability limits of its own, namely, that Congress may only vest the appointment power "in the President alone, in the Courts of Law, or in the Heads of Departments." Art. II, §2, cl. 2. Although a multimember body like Amtrak's Board can head a Department, here it is not at all clear that Amtrak is a Department. A "Department" may not be "subordinate to or contained within any other such component" of the Executive Branch. Free Enterprise Fund, 561 U. S., at 511. As explained above, however, in jointly creating metrics and standards, Amtrak may have to give way to an arbitrator appointed by the STB. Does that mean that Amtrak is "subordinate to" the STB? See also 49 U. S. C. §24308 (explaining the STB's role in disputes between Amtrak and rail carriers). At the same time, the Secretary of Transportation sits on Amtrak's Board and controls some aspects of Amtrak's relationship with rail carriers. See, e.g., §§24302(a)(1), 24309(d)(2). The Secretary of Transportation also has authority to exempt Amtrak from certain statutory requirements. See §24305(f)(4). Does that mean that Amtrak is "subordinate to or contained within" the Department of Transportation? (The STB, of course, also may be "subordinate to or contained within" the Department of Transportation. If so, this may further suggest that that Amtrak is not a Department, and also further undermine the STB's ability to appoint an arbitrator). All of these are difficult questions.* * * In sum, while I entirely agree with the Court that Amtrak must be regarded as a federal actor for constitutional purposes, it does not by any means necessarily follow that the present structure of Amtrak is consistent with the Constitution. The constitutional issues that I have outlined (and perhaps others) all flow from the fact that no matter what Congress may call Amtrak, the Constitution cannot be disregarded.Thomas, J., concurring in judgment 575 U. S. ____ (2015)No. 13-1080DEPARTMENT OF TRANSPORTATION, et al., PETITIONERS v. ASSOCIATION OF AMERICAN RAILROADSon writ of certiorari to the united states court of appeals for the district of columbia circuit[March 9, 2015] Justice Thomas, concurring in the judgment. We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question — indeed, the primary question the parties ask us to answer — is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom. I agree with the Court that the proper disposition in this case is to vacate the decision below and to remand for further consideration of respondent's constitutional challenge to the metrics and standards. I cannot join the majority's analysis, however, because it fails to fully correct the errors that require us to vacate the Court of Appeals' decision. I write separately to describe the framework that I believe should guide our resolution of delegation challenges and to highlight serious constitutional defects in the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) that are properly presented for the lower courts' review on remand.I The Constitution does not vest the Federal Government with an undifferentiated "governmental power." Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," Art. I, §1, "[t]he executive Power shall be vested in a President of the United States," Art. II, §1, cl. 1, and "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," Art. III, §1. These grants are exclusive. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001) (legislative power); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 496-497 (2010) (executive power); Stern v. Marshall, 564 U. S. ___, ___-___ (2011) (slip op., at 16-17) (judicial power). When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it. In addition to allocating power among the different branches, the Constitution identifies certain restrictions on the manner in which those powers are to be exercised. Article I requires, among other things, that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it . . . ." Art. I, §7, cl. 2. And although the Constitution is less specific about how the President shall exercise power, it is clear that he may carry out his duty to take care that the laws be faithfully executed with the aid of subordinates. Myers v. United States, 272 U. S. 52, 117 (1926), overruled in part on unrelated grounds in Humphrey's Executor v. United States, 295 U. S. 602 (1935). When the Court speaks of Congress improperly delegating power, what it means is Congress' authorizing an entity to exercise power in a manner inconsistent with the Constitution. For example, Congress improperly "delegates" legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power. See Whitman, supra, at 472. It also improperly "delegates" legislative power to itself when it authorizes itself to act without bicameralism and presentment. See, e.g., INS v. Chadha, 462 U. S. 919 (1983). And Congress improperly "delegates"--or, more precisely, authorizes the exercise of, see Perez v. Mortgage Bankers Assn., post, at 22 (Thomas, J., concurring in judgment) (noting that Congress may not "delegate" power it does not possess)--executive power when it authorizes individuals or groups outside of the President's control to perform a function that requires the exercise of that power. See, e.g., Free Enterprise Fund, supra. In order to be able to adhere to the provisions of the Constitution that allocate and constrain the exercise of these powers, we must first understand their boundaries. Here, I do not purport to offer a comprehensive description of these powers. My purpose is to identify principles relevant to today's dispute, with an eye to offering guidance to the lower courts on remand. At issue in this case is the proper division between legislative and executive powers. An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution.II The allocation of powers in the Constitution is absolute, Perez, post, at 5-8 (opinion of Thomas, J.), but it does not follow that there is no overlap between the three categories of governmental power. Certain functions may be performed by two or more branches without either exceeding its enumerated powers under the Constitution. Resolution of claims against the Government is the classic example. At least when Congress waives its sovereign immunity, such claims may be heard by an Article III court, which adjudicates such claims by an exercise of judicial power. See Ex parte Bakelite Corp., 279 U. S. 438, 452 (1929). But Congress may also provide for an executive agency to adjudicate such claims by an exercise of executive power. See ibid. Or Congress may resolve the claims itself, legislating by special Act. See ibid. The question is whether the particular function requires the exercise of a certain type of power; if it does, then only the branch in which that power is vested can perform it. For example, although this Court has long recognized that it does not necessarily violate the Constitution for Congress to authorize another branch to make a determination that it could make itself, there are certain core functions that require the exercise of legislative power and that only Congress can perform. Wayman v. Southard, 10 Wheat. 1, 43 (1825) (distinguishing between those functions Congress must perform itself and those it may leave to another branch). The function at issue here is the formulation of generally applicable rules of private conduct. Under the original understanding of the Constitution, that function requires the exercise of legislative power. By corollary, the discretion inherent in executive power does not comprehend the discretion to formulate generally applicable rules of private conduct.A The idea that the Executive may not formulate generally applicable rules of private conduct emerged even before the theory of the separation of powers on which our Constitution was founded. The idea has ancient roots in the concept of the "rule of law," which has been understood since Greek and Roman times to mean that a ruler must be subject to the law in exercising his power and may not govern by will alone. M. Vile, Constitutionalism and the Separation of Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968). The principle that a ruler must govern according to law "presupposes at least two distinct operations, the making of law, and putting it into effect." Vile, supra, at 24. Although it was originally thought "that the rule of law was satisfied if a king made good laws and always acted according to them," it became increasingly apparent over time that the rule of law demanded that the operations of "making" law and of "putting it into effect" be kept separate. W. Gwyn, The Meaning of the Separation of Powers 35 (1965); see also id., at 8-9. But when the King's power was at its height, it was still accepted that his "principal duty . . . [was], to govern his people according to law." 1 W. Blackstone, Commentaries on the Laws of England 226 (1765) (Commentaries) (emphasis added). An early expression of this idea in England is seen in the "constitutional" law concerning crown proclamations. Even before a more formal separation of powers came about during the English Civil War, it was generally thought that the King could not use his proclamation power to alter the rights and duties of his subjects. P. Hamburger, Is Administrative Law Unlawful? 33-34 (2014) (Hamburger). This power could be exercised by the King only in conjunction with Parliament and was exercised through statutes. Ibid.; see also M. Hale, The Prerogatives of the King 141, 171-172 (D. Yale ed. 1976). The King might participate in "the legislative power" by giving his "assent" to laws created by the "concurrence" of "lords and commons assembled in parliament," but he could not of his own accord "make a law or impose a charge." Id., at at 141. In 1539, King Henry VIII secured what might be called a "delegation" of the legislative power by prevailing on Parliament to pass the Act of Proclamations. Hamburger 35-36. That Act declared that the King's proclamations would have the force and effect of an Act of Parliament. Id., at 37. But the Act did not permit the King to deprive his subjects of their property, privileges and franchises, or their lives, except as provided by statutory or common law. Id., at 37-38. Nor did the Act permit him to invalidate " 'any acts, [or] common laws standing at [that] time in strength and force.' " Id., at 38 (quoting An Act that Proclamations Made by the King Shall be Obeyed, 31 Hen. VIII, ch. 8, in Eng. Stat. at Large 263 (1539)). Even this limited delegation of lawmaking power to the King was repudiated by Parliament less than a decade later. Hamburger 38. Reflecting on this period in history, David Hume would observe that, when Parliament "gave to the king's proclamation the same force as to a statute enacted by parliament," it "made by one act a total subversion of the English constitution." 3 D. Hume, The History of England from the Invasion of Julius Ceasar to the Revolution in 1688, p. 266 (1983). By the 17th century, when English scholars and jurists began to articulate a more formal theory of the separation of powers, delegations of the type afforded to King Henry VIII were all but unheard of. Hale, supra, at 172-173. This is not to say that the Crown did not endeavor to exercise the power to make rules governing private conduct. King James I made a famous attempt, see Perez, post, at 14 (opinion of Thomas, J.), prompting the influential jurist Chief Justice Edward Coke to write that the King could not "change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament." Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). Coke associated this principle with Chapter 39 of the Magna Carta,1 which he understood to guarantee that no subject would be deprived of a private right — that is, a right of life, liberty, or property — except in accordance with "the law of the land," which consisted only of statutory and common law. Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1688 (2012). When the King attempted to fashion rules of private conduct unilaterally, as he did in the Case of Proclamations, the resulting enforcement action could not be said to accord with "the law of the land." John Locke echoed this view. "[F]reedom of men under government," he wrote, "is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it . . . and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man." J. Locke, Second Treatise of Civil Government §22, p. 13 (J. Gough ed. 1947) (Locke) (emphasis added). It followed that this freedom required that the power to make the standing rules and the power to enforce them not lie in the same hands. See id., §143, at 72. He further concluded that "[t]he legislative c[ould not] transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it [could not] pass it over to others." Id., §141, at 71.2 William Blackstone, in his Commentaries, likewise maintained that the English Constitution required that no subject be deprived of core private rights except in accordance with the law of the land. See 1 Commentaries 129, 134, 137-138. He defined a "law" as a generally applicable "rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Id., at 44 (internal quotation marks omitted). And he defined a tyrannical government as one in which "the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men," for "wherever these two powers are united together, there can be no public liberty." Id., at 142. Thus, although Blackstone viewed Parliament as sovereign and capable of changing the constitution, id., at 156, he thought a delegation of lawmaking power to be "disgrace[ful]," 4 id., at 424; see also Hamburger 39, n. 17.B These principles about the relationship between private rights and governmental power profoundly influenced the men who crafted, debated, and ratified the Constitution. The document itself and the writings surrounding it reflect a conviction that the power to make the law and the power to enforce it must be kept separate, particularly with respect to the regulation of private conduct. The Framers' dedication to the separation of powers has been well-documented, if only half-heartedly honored. See, e.g., Mistretta v. United States, 488 U. S. 361, 380-381 (1989). Most famously, in The Federalist 47, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than" the separation of powers. The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny." Ibid.; see also Perez, post, at 7-8 (opinion of Thomas, J.). This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the "gradual concentration of the several powers in the same department." The Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the Framers to build checks and balances into our constitutional structure, so that the branches could defend their powers on an ongoing basis. Ibid.; see also Perez, post, at 7 (opinion of Thomas, J.). In this sense, the founding generation did not subscribe to Blackstone's view of parliamentary supremacy. Parliament's violations of the law of the land had been a significant complaint of the American Revolution, Chapman & McConnell, supra, at 1699-1703. And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law. Perez, post, at 6-7 (opinion of Thomas, J.). James Wilson explained the Constitution's break with the legislative supremacy model at the Pennsylvania ratification convention:"Sir William Blackstone will tell you, that in Britain . . . the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. . . . "To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states." 2 J. Elliot, Debates on the Federal Constitution 432 (2d ed. 1863); see also 4 id., at 63 (A. Maclaine) (contrasting Congress, which "is to be guided by the Constitution" and "cannot travel beyond its bounds," with the Parliament described in Blackstone's Commentaries).As an illustration of Blackstone's contrasting model of sovereignty, Wilson cited the Act of Proclamations, by which Parliament had delegated legislative power to King Henry VIII. 2 id., at 432 (J. Wilson); see supra, at 6. At the center of the Framers' dedication to the separation of powers was individual liberty. The Federalist No. 47, at 302 (J. Madison) (quoting Baron de Montesquieu for the proposition that " '[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates' "). This was not liberty in the sense of freedom from all constraint, but liberty as described by Locke: "to have a standing rule to live by . . . made by the legislative power," and to be free from "the inconstant, uncertain, unknown, arbitrary will of another man." Locke §22, at 13. At the heart of this liberty were the Lockean private rights: life, liberty, and property. If a person could be deprived of these private rights on the basis of a rule (or a will) not enacted by the legislature, then he was not truly free. See D. Currie, The Constitution in the Supreme Court: The First One Hundred Years, 1789-1888, p. 272, and n. 268 (1985).3 This history confirms that the core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make "law" in the Blackstonian sense of generally applicable rules of private conduct.III Even with these sound historical principles in mind, classifying governmental power is an elusive venture. Wayman, 10 Wheat., at 43; The Federalist No. 37, at 228 (J. Madison). But it is no less important for its difficulty. The "check" the judiciary provides to maintain our separation of powers is enforcement of the rule of law through judicial review. Perez, post, at 14 (opinion of Thomas, J.). We may not — without imperiling the delicate balance of our constitutional system — forgo our judicial duty to ascertain the meaning of the Vesting Clauses and to adhere to that meaning as the law. Perez, post, at 14-16. We have been willing to check the improper allocation of executive power, see, e.g., Free Enterprise Fund, 561 U. S. 477; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 (1991), although probably not as often as we should, see, e.g., Morrison v. Olson, 487 U. S. 654 (1988). Our record with regard to legislative power has been far worse. We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body, Whitman, 531 U. S., at 472, but it has become increasingly clear to me that the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition. Implicitly recognizing that the power to fashion legally binding rules is legislative, we have nevertheless classified rulemaking as executive (or judicial) power when the authorizing statute sets out "an intelligible principle" to guide the rulemaker's discretion. Ibid. Although the Court may never have intended the boundless standard the "intelligible principle" test has become, it is evident that it does not adequately reinforce the Constitution's allocation of legislative power. I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.A The Court first announced the intelligible principle test in J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394 (1928). That case involved a challenge to a tariff assessed on a shipment of barium dioxide. Id., at 400. The rate of the tariff had been set by proclamation of the President, pursuant to the so-called flexible tariff provision of the Tariff Act of 1922. Ibid. That provision authorized the President to increase or decrease a duty set by the statute if he determined that the duty did not " 'equalize . . . differences in costs of production [of the item to which the duty applied] in the United States and the principal competing country.' " Id., at 401 (quoting 19 U. S. C. §154 (1925 ed.)). The importer of the barium dioxide challenged the provision as an unconstitutional delegation of legislative power to the President. 276 U. S., at 404. Agreeing that Congress could not delegate legislative power, the Court nevertheless upheld the Act as constitutional, setting forth the now-famous formulation: "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id., at 409. Though worded broadly, the test rested on a narrow foundation. At the time J. W. Hampton was decided, most "delegations" by Congress to the Executive, including the delegation at issue in that case, had taken the form of conditional legislation. See Marshall Field & Co. v. Clark, 143 U. S. 649, 683-689 (1892). That form of legislation "makes the suspension of certain provisions and the going into operation of other provisions of an Act of Congress depend upon the action of the President based upon the occurrence of subsequent events, or the ascertainment by him of certain facts, to be made known by his proclamation." Id., at 683. The practice of conditional legislation dates back at least to the Third Congress in 1794. Id., at 683-689 (collecting statutes). It first came before the Court in Cargo of Brig Aurora v. United States, 7 Cranch 382 (1813). There, the Court considered whether a Presidential proclamation could, by declaring that France had ceased to violate the neutral commerce of the United States, reinstate a legislative Act embargoing British goods. Id., at 384, 388. The Court concluded that the proclamation was effective, seeing "no sufficient reaso[n] why the legislature should not exercise its discretion . . . either expressly or conditionally, as their judgment should direct." Id., at 388. At least as defined by the Court in Field, the practice of conditional legislation does not seem to call on the President to exercise a core function that demands an exercise of legislative power. Congress creates the rule of private conduct, and the President makes the factual determination that causes that rule to go into effect. That type of factual determination seems similar to the type of factual determination on which an enforcement action is conditioned: Neither involves an exercise of policy discretion, and both are subject to review by a court. See Union Bridge Co. v. United States, 204 U. S. 364, 386 (1907) (explaining that, when the Secretary of War determined whether bridges unreasonably obstruct navigation, he "could not be said to exercise strictly legislative . . . power any more, for instance, than it could be said that Executive officers exercise such power when, upon investigation, they ascertain whether a particular applicant for a pension belongs to a class of persons who, under general rules prescribed by Congress, are entitled to pensions"). As it happens, however, conditional statutes sometimes did call for the President to make at least an implicit policy determination. For example, a 1794 provision entitled "An Act to authorize the President of the United States to lay, regulate and revoke Embargoes," ch. 41, 1 Stat. 372, called on the President to impose an embargo on shipping "whenever, in his opinion, the public safety shall so require . . . ." Ibid. The statutes at issue in Field and J. W. Hampton could similarly be viewed as calling for built-in policy judgments. See Schoenbrod, The Delegation Doctrine: Could The Court Give It Substance? 83 Mich. L. Rev. 1223, 1263-1264 (1985).4 Such delegations of policy determinations pose a constitutional problem because they effectively permit the President to define some or all of the content of that rule of conduct. He may do so expressly — by setting out regulations specifying what conduct jeopardizes "the public safety," for example — or implicitly — by drawing distinctions on an ad hoc basis. In either event, he does so based on a policy judgment that is not reviewable by the courts, at least to the extent that the judgment falls within the range of discretion permitted him by the law. See id., at 1255-1260. The existence of these statutes should not be taken to suggest that the Constitution, as originally understood, would permit such delegations. The 1794 embargo statute involved the external relations of the United States, so the determination it authorized the President to make arguably did not involve an exercise of core legislative power. See id., at 1260-1263 (distinguishing the tariff statute at issue in Field and J. W. Hampton on these grounds).5 Moreover, the statute was never subjected to constitutional scrutiny. And when a statute of its kind — that is, a tariff statute calling for an exercise of policy judgment — finally came before this Court for consideration in Field, the Court appeared to understand the statute as calling for no more than a factual determination. 143 U. S., at 693. The Court thus did not in that case endorse the principle that the Executive may fashion generally applicable rules of private conduct and appears not to have done so until the 20th century. More to the point, J. W. Hampton can be read to adhere to the "factual determination" rationale from Field. The Court concluded its delegation analysis in J. W. Hampton not with the "intelligible principle" language, but by citing to Field for the proposition that the "Act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President." 276 U. S., at 410 (emphasis added); Field, 143 U. S., at 692 (explaining that an Act did not "in any real sense, invest the President with the power of legislation"). Congress had created a "named contingency," and the President "was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect." J. W. Hampton, supra, at 410-411.6 The analysis in Field and J. W. Hampton may have been premised on an incorrect assessment of the statutes before the Court, see n. 4, supra, but neither purported to define executive power as including the discretion to make generally applicable rules governing private conduct. To the extent that our modern jurisprudence treats them as sanctioning the "delegation" of such power, it misunderstands their historical foundations and expands the Court's holdings.B It is nevertheless true that, at the time J. W. Hampton was decided, there was a growing trend of cases upholding statutes pursuant to which the Executive exercised the power of "making . . . subordinate rules within prescribed limits." Panama Refining Co. v. Ryan, 293 U. S. 388, 421 (1935); see also id., at 429 (collecting cases). These cases involved executive power to make "binding rules of conduct," and they were found valid "as subordinate rules . . . [when] within the framework of the policy which the legislature ha[d] sufficiently defined." Id., at 428-429. To the extent that these cases endorsed authorizing the Executive to craft generally applicable rules of private conduct, they departed from the precedents on which they purported to rely. The key decision to which these cases purport to trace their origin is Wayman, 10 Wheat. 1, but that decision does not stand for the proposition those cases suggest. Although it upheld a statute authorizing courts to set rules governing the execution of their own judgments, id., at 50, its reasoning strongly suggests that rules of private conduct were not the proper subject of rulemaking by the courts. Writing for the Court, Chief Justice Marshall surveyed a number of choices that could be left to rulemaking by the courts, explaining that they concerned only "the regulation of the conduct of the officer of the Court in giving effect to its judgments." Id., at 45. When it came to specifying "the mode of obeying the mandate of a writ," however, he lamented that "so much of that which may be done by the judiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide." Id., at 46. This important passage reflects two premises that Chief Justice Marshall took for granted, but which are disregarded in later decisions relying on this precedent: First, reflected in his discussion of "blending" permissible with impermissible discretion, is the premise that it is not the quantity, but the quality, of the discretion that determines whether an authorization is constitutional. Second, reflected in the contrast Chief Justice Marshall draws between the two types of rules, is the premise that the rules "for which the legislature must expressly and directly provide" are those regulating private conduct rather than those regulating the conduct of court officers. Thus, when Chief Justice Marshall spoke about the "difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its Courts," ibid., he did not refer to the difficulty in discerning whether the Legislature's policy guidance is "sufficiently defined," see Panama Refining, supra, at 429, but instead the difficulty in discerning which rules affected substantive private rights and duties and which did not. We continue to wrestle with this same distinction today in our decisions distinguishing between substantive and procedural rules both in diversity cases and under the Rules Enabling Act. See, e.g., Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 393, 406-407 (2010) ("In the Rules Enabling Act, Congress authorized this Court to promulgate rules of procedure subject to its review, 28 U. S. C. §2072(a), but with the limitation that those rules 'shall not abridge, enlarge or modify any substantive right,' §2072(b)").7C Today, the Court has abandoned all pretense of enforcing a qualitative distinction between legislative and executive power. To the extent that the "intelligible principle" test was ever an adequate means of enforcing that distinction, it has been decoupled from the historical understanding of the legislative and executive powers and thus does not keep executive "lawmaking" within the bounds of inherent executive discretion. See Whitman, 531 U. S., at 487 (Thomas, J., concurring) ("I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power"). Perhaps we were led astray by the optical illusion caused by different branches carrying out the same functions, believing that the separation of powers would be substantially honored so long as the encroachment were not too great. See, e.g., Loving v. United States, 517 U. S. 748, 773 (1996) ("Separation-of-powers principles are vindicated, not disserved, by measured cooperation between two political branches of the Government, each contributing to a lawful objective through its own processes"). Or perhaps we deliberately departed from the separation, bowing to the exigencies of modern Government that were so often cited in cases upholding challenged delegations of rulemaking authority.8 See, e.g., Mistretta, 488 U. S., at 372 ("[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives"). For whatever reason, the intelligible principle test now requires nothing more than a minimal degree of specificity in the instructions Congress gives to the Executive when it authorizes the Executive to make rules having the force and effect of law. And because the Court has " 'almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law,' " Whitman, supra, at 474-475 (majority opinion) (quoting Mistretta, supra, at 416 (Scalia, J., dissenting)), the level of specificity it has required has been very minimal indeed, see 531 U. S., at 474 (collecting cases upholding delegations to regulate in the "public interest"). Under the guise of the intelligible-principle test, the Court has allowed the Executive to go beyond the safe realm of factual investigation to make political judgments about what is "unfair" or "unnecessary." See, e.g., American Power & Light Co. v. SEC, 329 U. S. 90, 104-105 (1946). It has permitted the Executive to make trade-offs between competing policy goals. See, e.g., Yakus v. United States, 321 U. S. 414, 420, 423-426 (1944) (approving authorization for agency to set prices of commodities at levels that "will effectuate the [sometimes conflicting] purposes of th[e] Act"); see also Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U. S. 607, 686-687 (1980) (Rehnquist, J., concurring in judgment) ("It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge"). It has even permitted the Executive to decide which policy goals it wants to pursue. Entergy Corp. v. Riverkeeper, Inc., 556 U. S. 208, 218-223 (2009) (concluding that Congress gave the Environmental Protection Agency (EPA) discretion to decide whether it should consider costs in making certain rules). And it has given sanction to the Executive to craft significant rules of private conduct. See, e.g., Whitman, 531 U. S., at 472-476 (approving delegation to EPA to set national standards for air quality); see also id., at 488-489 (Stevens, J., concurring in part and concurring in judgment) (arguing that the Clean Air Act effects a delegation of legislative power because it authorizes EPA to make prospective, generally applicable rules of conduct). Our reluctance to second-guess Congress on the degree of policy judgment is understandable; our mistake lies in assuming that any degree of policy judgment is permissible when it comes to establishing generally applicable rules governing private conduct. To understand the "intelligible principle" test as permitting Congress to delegate policy judgment in this context is to divorce that test from its history. It may never be possible perfectly to distinguish between legislative and executive power, but that does not mean we may look the other way when the Government asks us to apply a legally binding rule that is not enacted by Congress pursuant to Article I. We should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power. I accept that this would inhibit the Government from acting with the speed and efficiency Congress has sometimes found desirable. In anticipating that result and accepting it, I am in good company. John Locke, for example, acknowledged that a legislative body "is usually too numerous, and so too slow for the dispatch requisite to execution." Locke §160, at 80. But he saw that as a benefit for legislation, for he believed that the creation of rules of private conduct should be an irregular and infrequent occurrence. See id., §143, at 72. The Framers, it appears, were inclined to agree. As Alexander Hamilton explained in another context, "It may perhaps be said that the power of preventing bad laws includes that of preventing good ones . . . . But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments." The Federalist No. 73, at 443-444. I am comfortable joining his conclusion that "[t]he injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones." Id., at 444.IV Although the majority corrects an undoubted error in the framing of the delegation dispute below, it does so without placing that error in the context of the constitutional provisions that govern respondent's challenge to §207 of the PRIIA.A Until the case arrived in this Court, the parties proceeded on the assumption that Amtrak is a private entity, albeit one subject to an unusual degree of governmental control.9 The Court of Appeals agreed. 721 F. 3d 666, 674-677 (CADC 2013). Because it also concluded that Congress delegated regulatory power to Amtrak, id., at 670-674, and because this Court has held that delegations of regulatory power to private parties are impermissible, Carter v. Carter Coal Co., 298 U. S. 238, 311 (1936), it held the delegation to be unconstitutional, 721 F. 3d, at 677. Although no provision of the Constitution expressly forbids the exercise of governmental power by a private entity, our so-called "private nondelegation doctrine" flows logically from the three Vesting Clauses. Because a private entity is neither Congress, nor the President or one of his agents, nor the Supreme Court or an inferior court established by Congress, the Vesting Clauses would categorically preclude it from exercising the legislative, executive, or judicial powers of the Federal Government. In short, the "private nondelegation doctrine" is merely one application of the provisions of the Constitution that forbid Congress to allocate power to an ineligible entity, whether governmental or private. For this reason, a conclusion that Amtrak is private — that is, not part of the Government at all — would necessarily mean that it cannot exercise these three categories of governmental power. But the converse is not true: A determination that Amtrak acts as a governmental entity in crafting the metrics and standards says nothing about whether it properly exercises governmental power when it does so. An entity that "was created by the Government, is controlled by the Government, and operates for the Government's benefit," ante, at 10 (majority opinion), but that is not properly constituted to exercise a power under one of the Vesting Clauses, is no better qualified to be a delegatee of that power than is a purely private one. To its credit, the majority does not hold otherwise. It merely refutes the Court of Appeals' premise that Amtrak is private. But this answer could be read to suggest, wrongly, that our conclusion about Amtrak's status has some constitutional significance for "delegation" purposes.B The first step in the Court of Appeals' analysis on remand should be to classify the power that §207 purports to authorize Amtrak to exercise. The second step should be to determine whether the Constitution's requirements for the exercise of that power have been satisfied.1 Under the original understanding of the legislative and executive power, Amtrak's role in the creation of metrics and standards requires an exercise of legislative power because it allows Amtrak to decide the applicability of standards that provide content to generally applicable rules of private conduct. Specifically, the metrics and standards alter the railroads' common-carrier obligations under 49 U. S. C. §11101. Host railroads may enter into contracts with Amtrak under §§10908 and 24308 to fulfill their common-carrier obligations. The metrics and standards shape the types of contracts that satisfy the common-carrier obligations because §207 provides that "Amtrak and its host rail carriers shall" include the metrics and standards in their contracts "[t]o the extent practicable." PRIIA §207(c), 49 U.S.C. §24101 (note) (emphasis added). As Justice Alito explains, it matters little that the railroads may avoid incorporating the metrics and standards by arguing that incorporation is impracticable; the point is that they have a legal duty to try — a duty the substance of which is defined by the metrics and standards. See ante, at 3-4 (concurring opinion). And that duty is backed up by the Surface Transportation Board's coercive power to impose "reasonable terms" on host railroads when they fail to come to an agreement with Amtrak. §24308(a)(2)(A)(ii). Presumably, when it is "practicable" to incorporate the metrics and standards, the Board is better positioned to deem such terms "reasonable" and to force them upon the railroads. Although the Government's argument to the contrary will presumably change now that the Court has held that Amtrak is a governmental entity, it argued before this Court that Amtrak did not exercise meaningful power because other "governmental entities had sufficient control over the development and adoption of the metrics and standards." Brief for Petitioners 19-26. For support, the Government relied on two questionable precedents in which this Court held that Congress may grant private actors the power to determine whether a government regulation will go into effect: Currin v. Wallace, 306 U. S. 1 (1939), and United States v. Rock Royal Co-operative, Inc., 307 U. S. 533 (1939). Those precedents reason that it does not require an exercise of legislative power to decide whether and when legally binding rules of private conduct will go into effect. Currin, supra, at 16-18; Rock Royal, supra, at 574-577. But as I have explained above, to the extent that this decision involves an exercise of policy discretion, it requires an exercise of legislative power. Supra, at 21-22. In any event, these precedents are directly contrary to our more recent holding that a discretionary "veto" necessarily involves an exercise of legislative power. See INS v. Chadha, 462 U. S., at 952-953; see also id., at 987 (White, J., dissenting) (noting that the power Congress reserved to itself was virtually identical to the power it conferred on private parties in Currin and Rock Royal). As such, Currin and Rock Royal have been discredited and lack any force as precedents. Section 207 therefore violates the Constitution. Article I, §1, vests the legislative power in Congress, and Amtrak is not Congress. The procedures that §207 sets forth for enacting the metrics and standards also do not comply with bicameralism and presentment. Art. I, §7. For these reasons, the metrics and standards promulgated under this provision are invalid.2 I recognize, of course, that the courts below will be bound to apply our "intelligible principle" test. I recognize, too, that that test means so little that the courts are likely to conclude that §207 calls for nothing more than the exercise of executive power. Having made that determination, the Court of Appeals must then determine whether Amtrak is constitutionally eligible to exercise executive power. As noted, Article II of the Constitution vests the executive power in a "President of the United States of America." Art. II, §1. Amtrak, of course, is not the President of the United States, but this fact does not immediately disqualify it from the exercise of executive power. Congress may authorize subordinates of the President to exercise such power, so long as they remain subject to Presidential control. The critical question, then, is whether Amtrak is adequately subject to Presidential control. See Myers, 272 U. S., at 117. Our precedents treat appointment and removal powers as the primary devices of executive control, Free Enterprise Fund, 561 U. S., at 492, and that should be the starting point of the Court of Appeals' analysis. As Justice Alito's concurrence demonstrates, however, there are other constitutional requirements that the Court of Appeals should also scrutinize in deciding whether Amtrak is constitutionally eligible to exercise the power §207 confers on it.* * * In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads' statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority's holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.FOOTNOTESFootnote 1 It is noteworthy that the first statute enacted by Congress was "An Act to regulate the Time and Manner of administering certain Oaths." Act of June 1, 1789, ch. 1, §1, 1 Stat. 23.FOOTNOTESFootnote 1 Chapter 39 of the 1215 Magna Carta declared that "[n]o free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land." A. Howard, Magna Carta: Text and Commentary 43 (1964).Footnote 2 Locke and his contemporaries also believed that requiring laws to be made in Parliament secured the common interest. W. Gwyn, The Meaning of the Separation of Powers 75 (1965). Parliament would assemble to do the business of legislation, but then its members would disperse to live as private citizens under the laws they had created, providing them an incentive to legislate in the common interest. During Parliament's absence, the King might meet certain emergencies through the exercise of prerogative power, but in order to make new, permanent laws, he would be required to call Parliament into session. Locke §§143-144, at 72-73. If the King were not dependent on Parliament to legislate, then this beneficial cycle of periodic lawmaking interspersed with representatives' living as private citizens would be broken.Footnote 3 I do not mean to suggest here that the Framers believed an Act of the Legislature was sufficient to deprive a person of private rights; only that it was necessary. See generally Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1715, 1721-1726 (2012) (discussing historical evidence that the Framers believed the Due Process Clause limited Congress' power to provide by law for the deprivation of private rights without judicial process).Footnote 4 The statute at issue in Field authorized the President to reimpose statutory duties on exports from a particular country if he found that the country had imposed "reciprocally unequal and unreasonable" duties on U. S. exports. 143 U. S., at 692. At least insofar as the terms "unequal" and "unreasonable" did not have settled common-law definitions that could be applied mechanically to the facts, they could be said to call for the President to exercise policy judgment about which duties qualified. See id., at 699 (Lamar, J., dissenting but concurring in judgment) (The statute "does not, as was provided in the statutes of 1809 and 1810, entrust the President with the ascertainment of a fact therein defined upon which the law is to go into operation. It goes farther than that, and deputes to the President the power to suspend another section in the same act whenever 'he may deem' the action of any foreign nation . . . to be 'reciprocally unequal and unreasonable. . . ' "). Similarly, the statute at issue in J. W. Hampton called on the President, with the aid of a commission, to determine the " 'costs of production' " for various goods — a calculation that could entail an exercise of policy judgment about the appropriate wage and profit rates in the relevant industries. 276 U. S., at 401.Footnote 5 The definition of "law" in England at the time of the ratification did not necessarily include rules — even rules of private conduct — dealing with external relations. For example, while "every Englishman [could] claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law," the King "by his royal prerogative, [could] issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence." 1 Commentaries 133. It is thus likely the Constitution grants the President a greater measure of discretion in the realm of foreign relations, and the conditional tariff Acts must be understood accordingly. See Clinton v. City of New York, 524 U. S. 417, 445 (1998) (distinguishing Field on the ground that the statute at issue in Field regulated foreign trade); see also United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 324 (1936) ("Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exercise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs"). This Court has at least once expressly relied on this rationale to sanction a delegation of power to make rules governing private conduct in the area of foreign trade. See Buttfield v. Stranahan, 192 U. S. 470, 496 (1904).Footnote 6 Contemporary perceptions of the statute were less sanguine. One editorial deemed it "the most dangerous advance in bureaucratic government ever attempted in America." D. Schoenbrod, Power Without Responsibility 36 (1993) (quoting Letter from J. Cotton (Feb. 7, 1929), in With Our Readers, 13 Constitutional Review 98, 101 (1929)). President-elect Hoover stirred the public with promises of a repeal: "There is only one commission to which delegation of [the] authority [to set tariffs] can be made. That is the great commission of [the people's] own choosing, the Congress of the United States and the President." Public Papers of the Presidents, Herbert Hoover, 1929, p. 565 (1974); see also Schoenbrod, supra, at 36.Footnote 7 Another early precedent on which the errant "subordinate rulemaking" line of cases relies involves rules governing mining claims on public land. Jackson v. Roby, 109 U. S. 440, 441 (1883); see also United States v. Grimaud, 220 U. S. 506 (1911) (sustaining an Act authorizing the Secretary of Agriculture to make rules and regulations governing the use and occupancy of public forest reservations). Although perhaps questionable on its own terms, Jackson is distinguishable because it did not involve the Government's reaching out to regulate private conduct, but instead involved the Government's setting rules by which individuals might enter onto public land to avail themselves of resources belonging to the Government.Footnote 8 Much of the upheaval in our delegation jurisprudence occurred during the Progressive Era, a time marked by an increased faith in the technical expertise of agencies and a commensurate cynicism about principles of popular sovereignty. See Perez v. Mortgage Bankers Assn., post, at 19-20, n. 6 (Thomas, J., concurring in judgment).Footnote 9 See Brief for Appellees in No. 12-5204 (DC), pp. 23-29 (defending §207 under cases upholding statutes "assign[ing] an important role to a private party"); id., at 29 ("Amtrak . . . is not a private entity comparable to the [private parties in a relevant precedent]. Although the government does not control Amtrak's day-to-day operations, the government exercises significant structural control"). |
0 | Petitioner Alvarado claimed at his criminal trial that the Government used peremptory challenges to remove black jurors solely because of race, contrary to Batson v. Kentucky, . The District Court accepted the Government's explanations for its challenges, and Alvarado was convicted. In affirming the conviction, the Court of Appeals did not rule on Alvarado's argument that the Government's explanations were pretextual or the Government's arguments that he had not made out a prima facie Batson error, and that it had race-neutral reasons for the challenges. The court held, instead, that no appellate inquiry was required into the merits of a Batson claim if the jury finally chosen represented a fair cross section of the community.Held: The case is remanded for the Court of Appeals to pass on the adequacy of the Government's reasons for exercising its peremptory challenges. The Government agrees that the Court of Appeals' judgment rests on an improvident ground. Thus, it is appropriate for this Court to grant certiorari, vacate the judgment below, and direct reconsideration in light of the representations made by the United States in this Court. See, e.g., Biddle v. United States, . This result is not unusual even when, as here, the Government has suggested that there is another ground on which the decision below could be affirmed if the case were brought in this Court. Certiorari granted; 891 F.2d 439, vacated and remanded.PER CURIAM.At his criminal trial, petitioner claimed that the Government used certain peremptory challenges to remove black jurors solely on the grounds of race, contrary to Batson v. Kentucky, . The District Court accepted the Government's explanations for its challenges, and petitioner was convicted. He pursued his Batson claim in the Court of Appeals, claiming that the the Government's explanations were pretextual. The Government asserted that petitioner had not made out a prima facie Batson error, and that it had race-neutral reasons for each challenge. The Court of Appeals did not rule on these competing claims, for it held that no appellate inquiry was required into the merits of a Batson claim if the jury finally chosen represented a fair cross section of the community, as did this jury. The conviction was affirmed.Petitioner, seeking certiorari, urges that the Court of Appeals relied on an erroneous ground in rejecting the Batson claim. The United States agrees that the Court of Appeals erred in holding that, as long as the petit jury chosen satisfied the Sixth Amendment's fair cross-section concept, it need not inquire into the claim that the prosecution had stricken jurors on purely racial grounds. That holding, the Government states, is contrary to Batson and is also discredited by our decision in Holland v. Illinois, , which held that the fair cross-section requirement of the Sixth Amendment did not apply to the petit jury and which was handed down after the Court of Appeals issued its opinion below. The Government urges us to deny certiorari, however, because petitioner failed to make out a prima facie case of intentional discrimination and because the reasons given for the challenges were race-neutral, grounds for decision that the Court of Appeals did not reach.When the Government has suggested that an error has been made by the court below, it is not unusual for us to grant certiorari, vacate the judgment below, and direct reconsideration in light of the representations made by the United States in this Court. See, e.g., Biddle v. United States, ; Malone v. United States, . Nor is it novel to do so in a case where error is conceded, but it is suggested that there is another ground on which the decision below could be affirmed if the case were brought here. Indeed, a case decided earlier this Term presented such a situation and, without dissent, we vacated the judgment below for reconsideration in light of the position asserted by the Solicitor General in this Court. Chappell v. United States, . This is the appropriate course to follow in this case. If the judgment below rested on an improvident ground, as the Government suggests, the Court of Appeals should in the first instance pass on the adequacy of the Government's reasons for exercising its peremptory challenges.Consequently, the motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed May 21, 1990. It is so ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR, JUSTICE SCALIA, and JUSTICE KENNEDY join, dissenting.I have previously expressed my doubt as to the wisdom of automatically vacating a Court of Appeals judgment favorable to the government when the Solicitor General confesses error in this Court. See Mariscal v. United States, (dissenting opinion). Today the Court carries this unfortunate practice to new lengths: The Government has not confessed error in this case, but instead has taken the position that the judgment of the Court of Appeals was correct, and that certiorari should be denied.The Government's brief in opposition contains the following statement: "Although petitioner's Batson claim lacks merit, we agree with petitioner that the Court of Appeals' analysis departed from the general approach to discrimination and jury selection that this Court has marked out in Batson." Brief in Opposition 12. The Court seizes upon this concession that the "analysis" of the Court of Appeals may have been wrong as a justification for vacating the judgment. But the entire thrust of the Solicitor General's brief is that the result reached by the Court of Appeals was correct.A confession of error is at least a deliberate decision on the part of the Solicitor General to concede that a Court of Appeals judgment in favor of the government was wrong. In the present case, however, we have only the above-quoted statement of the Solicitor General in his brief opposing a grant of certiorari. If we are now to vacate judgments on the basis of what are essentially observations in the Solicitor General's brief about the "approach" of the Court of Appeals in a particular case, I fear we may find the Solicitor General's future briefs in opposition much less explicit and frank than they have been in the past. Since we depend heavily on the Solicitor General in deciding whether to grant certiorari in cases in which the government is a party, the Court will be the loser as a result. |
1 | The Treaty of 1850 between the United States and Switzerland provides that citizens of one country residing in the other "shall be free from personal military service." Section 3 (a) of the Selective Training and Service Act of 1940, as amended, provided for the exemption of neutral aliens from service in the land or naval forces of the United States, with the proviso that one who claimed exemption should thereafter be barred from becoming a citizen of the United States. Petitioner, a Swiss national, applied for and obtained exemption from service in the land or naval forces of the United States. Held: Under the circumstances detailed in the opinion, he was not debarred from United States citizenship. Pp. 42-47. (a) As a matter of law, the Act imposed a valid condition on petitioner's claim of exemption from military service. Pp. 45-46. (b) Petitioner did not knowingly and intentionally waive his rights to citizenship. Considering all the circumstances of the case, elementary fairness would require nothing less than an intelligent waiver to debar petitioner from citizenship. Pp. 46-47. 182 F.2d 734, reversed. An order of the District Court admitting petitioner to citizenship, 85 F. Supp. 683, was reversed by the Court of Appeals. 182 F.2d 734. This Court granted certiorari. . Reversed, p. 47.Jack Wasserman and Morris E. Vogel argued the cause and filed a brief for petitioner.Stanley M. Silverberg argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney and J. F. Bishop. MR. JUSTICE MINTON delivered the opinion of the Court.Petitioner, a native of Switzerland, was admitted to citizenship by the United States District Court for the Eastern District of New York on July 21, 1949.1 The Court of Appeals reversed,2 holding that petitioner was debarred from citizenship because he had claimed exemption from military service as a neutral alien during World War II. Important questions concerning the effect of treaty and statute upon the privilege of aliens to acquire citizenship are involved, and we granted certiorari.3 Petitioner first entered the United States in 1937. After a trip to Switzerland in 1940 for service in the Swiss Army, in which he held a commission, he returned to this country and married a United States citizen. He and his wife have three children, all born here.Article II of the Treaty of 18504 between the United States and Switzerland provides that "The citizens of one of the two countries, residing or established in the other, shall be free from personal military service ... ." Petitioner registered under Selective Service in 1940 and was classified III-A, based on dependency. When, on January 11, 1944, his Local Board in New York City reclassified him I-A, available for service, he sought the aid of the Legation of Switzerland in securing his deferment in accordance with the Treaty of 1850. At that time 3 (a) of the Selective Training and Service Act of 1940, as amended,5 provided for the exemption of neutral aliens from military service, with the proviso that one who claimed exemption should thereafter be debarred from becoming a citizen of the United States. Petitioner, however, advised the Local Board that he had taken steps with the Swiss Legation "to be released unconditionally" from service under the Treaty.Upon receiving petitioner's request for assistance, the Swiss Legation in Washington requested the Department of State that he be given an "unconditional release" from liability for service, "in conformity with" the Treaty. The Department referred the request to the Selective Service System, which replied that the Local Board had been instructed to inform petitioner that he might obtain a Revised Form 301 from the Swiss Legation to be used in claiming exemption. Selective Service Headquarters in Washington did so instruct the Director of Selective Service for New York City. On February 18, 1944, the Swiss Legation wrote petitioner that it had requested the Department of State to exempt him "in accordance with the provisions of Art. II, of the Treaty ... ." The letter continued: "We are forwarding to you, herewith, two copies of DSS Form 301, revised, which kindly execute and file immediately with your Local Board. This action on your part is necessary in order to complete the exemption procedure; your Local Board, in accordance with Selective Service regulations, as amended, will then classify you in Class IV-C. "Please note that, through filing of DSS Form 301, revised, you will not waive your right to apply for American citizenship papers. The final decision regarding your naturalization will remain solely with the competent Naturalization Courts." The Legation's emphasis in referring to "Form 301, revised" is not without significance. The pertinent regulations promulgated by the President6 provided that to claim exemption an alien should file with his Local Board Form 301, which became known as DSS 301, "Application by Alien for Relief from Military Service." Above the signature line on this form there appeared the statement, in obvious reference to the proviso of 3 (a): "I understand that the making of this application to be relieved from such liability will debar me from becoming a citizen of the United States." But shortly after 3 (a) of the Act was amended to the content with which we here deal,7 the Swiss Legation had protested to the Department of State that it was inconsistent with the treaty rights of Swiss citizens. And the Department had hastened to assure the Legation that the Government had no intention of abrogating treaty rights or privileges of Swiss nationals. The State Department, in conjunction with Selective Service Headquarters and the Swiss Legation, had then negotiated agreement upon a Revised Form 301 which omitted the waiver quoted above and stated simply: "I hereby apply for relief from liability for training and service in the land or naval forces of the United States." A footnote of the revised form quoted pertinent parts of 3 (a). It was under these circumstances that petitioner signed a Revised Form 301 on February 26, 1944, and was classified IV-C by his Local Board. The Court of Appeals has accepted, as do we, the finding of the District Court that petitioner signed the application for exemption believing that he was not thereby precluded from citizenship, and that had he known claiming exemption would debar him from citizenship, he would not have claimed it, but would have elected to serve in the armed forces.Is petitioner debarred from citizenship by reason of the claimed exemption?The Treaty of 1850 with Switzerland was in full force in 1940 when the Selective Training and Service Act was passed. Standing alone, the Treaty provided for exemption of Swiss citizens from military service of the United States, and if that were all, petitioner would have been entitled to unqualified exemption. Section 3 (a) of the Act, while recognizing the immunity of citizens of neutral countries from service in our armed forces,8 imposed the condition that neutral aliens residing here who claimed such immunity would be debarred from citizenship. That the statute unquestionably imposed a condition on exemption not found in the Treaty does not mean they are inconsistent. Not doubting that a treaty may be modified by a subsequent act of Congress,9 it is not necessary to invoke such authority here, for we find in this congressionally imposed limitation on citizenship nothing inconsistent with the purposes and subject matter of the Treaty. The Treaty makes no provision respecting citizenship. On the contrary, it expressly provides that the privileges guaranteed by each country to resident citizens of the other "shall not extend to the exercise of political rights."10 The qualifications for and limitations on the acquisition of United States citizenship are a political matter11 which the Treaty did not presume to cover.Thus, as a matter of law, the statute imposed a valid condition on the claim of a neutral alien for exemption; petitioner had a choice of exemption and no citizenship, or no exemption and citizenship.But as we have already indicated, before petitioner signed the application for exemption, he had asserted a right to exemption without debarment from citizenship. In response to the claims of petitioner and others, and in apparent acquiescence, our Department of State had arranged for a revised procedure in claiming exemption. The express waiver of citizenship had been deleted. Petitioner had sought information and guidance from the highest authority to which he could turn, and was advised to sign Revised Form 301. He was led to believe that he would not thereby lose his rights to citizenship. If he had known otherwise he would not have claimed exemption. In justifiable reliance on this advice he signed the papers sent to him by the Legation.We do not overlook the fact that the Revised Form 301 contained a footnote reference to the statutory provision, and that the Legation wrote petitioner, "you will not waive your right to apply for American citizenship papers." The footnote might have given pause to a trained lawyer. A lawyer might have speculated on the possible innuendoes in the use of the phrase "right to apply," as opposed to "right to obtain." But these are minor distractions in a total setting which understandably lulled this petitioner into misconception of the legal consequences of applying for exemption. Nor did petitioner sign one thing and claim another, as in Savorgnan v. United States, . Since the Revised Form 301 contained no waiver, what he signed was entirely consistent with what he believed and claimed.There is no need to evaluate these circumstances on the basis of any estoppel of the Government or the power of the Swiss Legation to bind the United States by its advice to petitioner. Petitioner did not knowingly and intentionally waive his rights to citizenship. In fact, because of the misleading circumstances of this case, he never had an opportunity to make an intelligent election between the diametrically opposed courses required as a matter of strict law. Considering all the circumstances of the case, we think that to bar petitioner, nothing less than an intelligent waiver is required by elementary fairness. Johnson v. United States, . To hold otherwise would be to entrap petitioner.The judgment of the Court of Appeals is Reversed.MR. JUSTICE DOUGLAS concurs in the result.MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER agree with the Court's decision and opinion that Moser did not waive his rights of citizenship. Questions regarding the scope of the Treaty of 1850 and the bearing of the Selective Service Act of 1940 on the Treaty are therefore not reached and should not be considered. |
0 | New York's Aid to Families with Dependent Children (AFDC) program, stressing "close contact" with beneficiaries, requires home visits by caseworkers as a condition for assistance "in order that any treatment or service tending to restore [beneficiaries] to a condition of self-support and to relieve their distress may be rendered and ... that assistance or care may be given only in such amount and as long as necessary." Visitation with a beneficiary, who is the primary source of information to welfare authorities as to eligibility for assistance, is not permitted outside working hours, and forcible entry and snooping are prohibited. Appellee, a beneficiary under the AFDC program, after receiving several days' advance notice, refused to permit a caseworker to visit her home and, following a hearing and advice that assistance would consequently be terminated, brought this suit for injunctive and declaratory relief, contending that a home visitation is a search and, when not consented to or supported by a warrant based on probable cause, would violate her Fourth and Fourteenth Amendment rights. The District Court upheld appellee's constitutional claim. Held: The home visitation provided for by New York law in connection with the AFDC program is a reasonable administrative tool and does not violate any right guaranteed by the Fourth and Fourteenth Amendments. Pp. 315-326. (a) Home visitation, which is not forced or compelled, is not a search in the traditional criminal law context of the Fourth Amendment. Pp. 317-318. (b) Even assuming that the home visit has some of the characteristics of a traditional search, New York's program is reasonable, as it serves the paramount needs of the dependent child; enables the State to determine that the intended objects of its assistance benefit from its aid and that state funds are being properly used; helps attain parallel federal relief objectives; stresses privacy by not unnecessarily intruding on the beneficiary's rights in her home; provides essential information not obtainable through secondary sources; is conducted, not by a law enforcement officer, but by a caseworker; is not a criminal investigation; and (unlike the warrant procedure, which necessarily implies criminal conduct) comports with the objectives of welfare administration. Pp. 318-324. (c) The consequence of refusal to permit home visitation, which does not involve a search for violations, is not a criminal prosecution but the termination of relief benefits. Camara v. Municipal Court, ; See v. City of Seattle, , distinguished. Pp. 324-325. 303 F. Supp. 935, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACK, HARLAN, and STEWART, JJ., and WHITE, J. (except for Part IV) joined. DOUGLAS, J., filed a dissenting opinion, post, p. 326. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 338.Brenda Soloff, Assistant Attorney General of New York, argued the cause for appellant Wyman. With her on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General, for appellant Wyman, and J. Lee Rankin for appellant Goldberg, Commissioner of Social Services of the City of New York.Jonathan Weiss argued the cause for appellee. With him on the brief was David Gilman.Briefs of amici curiae urging affirmance were filed by Stephen F. Gordon and Ernest Fleischman for the Social Service Employees Union Local 371, AFSCME, AFL-CIO, and by Lois P. Sheinfeld for the Legal Aid Society of San Mateo County.MR. JUSTICE BLACKMUN delivered the opinion of the Court.This appeal presents the issue whether a beneficiary of the program for Aid to Families with Dependent Children (AFDC)1 may refuse a home visit by the caseworker without risking the termination of benefits. The New York State and City social services commissioners appeal from a judgment and decree of a divided three-judge District Court holding invalid and unconstitutional in application 134 of the New York Social Services Law,2 175 of the New York Policies Governing the Administration of Public Assistance,3 and 351.10 and 351.21 of Title 18 of the New York Code of Rules and Regulations,4 and granting injunctive relief. James v. Goldberg, 303 F. Supp. 935 (SDNY 1969). This Court noted probable jurisdiction but, by a divided vote, denied a requested stay. .The District Court majority held that a mother receiving AFDC relief may refuse, without forfeiting her right to that relief, the periodic home visit which the cited New York statutes and regulations prescribe as a condition for the continuance of assistance under the program. The beneficiary's thesis, and that of the District Court majority, is that home visitation is a search and, when not consented to or when not supported by a warrant based on probable cause, violates the beneficiary's Fourth and Fourteenth Amendment rights.Judge McLean, in dissent, thought it unrealistic to regard the home visit as a search; felt that the requirement of a search warrant to issue only upon a showing of probable cause would make the AFDC program "in effect another criminal statute" and would "introduce a hostile arm's length element into the relationship" between worker and mother, "a relationship which can be effective only when it is based upon mutual confidence and trust"; and concluded that the majority's holding struck "a damaging blow" to an important social welfare program. 303 F. Supp., at 946.IThe case comes to us on the pleadings and supporting affidavits and without the benefit of testimony which an extended hearing would have provided. The pertinent facts, however, are not in dispute.Plaintiff Barbara James is the mother of a son, Maurice, who was born in May 1967. They reside in New York City. Mrs. James first applied for AFDC assistance shortly before Maurice's birth. A caseworker made a visit to her apartment at that time without objection. The assistance was authorized.Two years later, on May 8, 1969, a caseworker wrote Mrs. James that she would visit her home on May 14. Upon receipt of this advice, Mrs. James telephoned the worker that, although she was willing to supply information "reasonable and relevant" to her need for public assistance, any discussion was not to take place at her home. The worker told Mrs. James that she was required by law to visit in her home and that refusal to permit the visit would result in the termination of assistance. Permission was still denied.On May 13 the City Department of Social Services sent Mrs. James a notice of intent to discontinue assistance because of the visitation refusal. The notice advised the beneficiary of her right to a hearing before a review officer. The hearing was requested and was held on May 27. Mrs. James appeared with an attorney at that hearing.5 They continued to refuse permission for a worker to visit the James home, but again expressed willingness to cooperate and to permit visits elsewhere. The review officer ruled that the refusal was a proper ground for the termination of assistance. His written decision stated: "The home visit which Mrs. James refuses to permit is for the purpose of determining if there are any changes in her situation that might affect her eligibility to continue to receive Public Assistance, or that might affect the amount of such assistance, and to see if there are any social services which the Department of Social Services can provide to the family." A notice of termination issued on June 2.Thereupon, without seeking a hearing at the state level, Mrs. James, individually and on behalf of Maurice, and purporting to act on behalf of all other persons similarly situated, instituted the present civil rights suit under 42 U.S.C. 1983. She alleged the denial of rights guaranteed to her under the First, Third, Fourth, Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments, and under Subchapters IV and XVI of the Social Security Act and regulations issued thereunder. She further alleged that she and her son have no income, resources, or support other than the benefits received under the AFDC program. She asked for declaratory and injunctive relief. A temporary restraining order was issued on June 13, James v. Goldberg, 302 F. Supp. 478 (SDNY 1969), and the three-judge District Court was convened.IIThe federal aspects of the AFDC program deserve mention. They are provided for in Subchapter IV, Part A, of the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. 601-610 (1964 ed. and Supp. V). Section 401 of the Act, 42 U.S.C. 601 (1964 ed., Supp. V), specifies its purpose, namely, "encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services ... to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life ... ." The same section authorizes the federal appropriation for payments to States that qualify. Section 402, 42 U.S.C. 602 (1964 ed., Supp. V), provides that a state plan, among other things, must "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness"; must "provide that the State agency will make such reports ... as the Secretary [of Health, Education, and Welfare] may from time to time require"; must "provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid"; and must "provide that where the State agency has reason to believe that the home in which a relative and child receiving aid reside is unsuitable for the child because of the neglect, abuse, or exploitation of such child it shall bring such condition to the attention of the appropriate court or law enforcement agencies in the State ... ." Section 405, 42 U.S.C. 605, provides that "Whenever the State agency has reason to believe that any payments of aid ... made with respect to a child are not being or may not be used in the best interests of the child, the State agency may provide for such counselling and guidance services with respect to the use of such payments and the management of other funds by the relative ... in order to assure use of such payments in the best interests of such child, and may provide for advising such relative that continued failure to so use such payments will result in substitution therefor of protective payments ... or in seeking the appointment of a guardian ... or in the imposition of criminal or civil penalties ... ."IIIWhen a case involves a home and some type of official intrusion into that home, as this case appears to do, an immediate and natural reaction is one of concern about Fourth Amendment rights and the protection which that Amendment is intended to afford. Its emphasis indeed is upon one of the most precious aspects of personal security in the home: "The right of the people to be secure in their persons houses, papers, and effects ... ." This Court has characterized that right as "basic to a free society." Wolf v. Colorado, ; Camara v. Municipal Court, . And over the years the Court consistently has been most protective of the privacy of the dwelling. See, for example, Boyd v. United States, ; Mapp v. Ohio, ; Chimel v. California, ; Vale v. Louisiana, . In Camara MR. JUSTICE WHITE, after noting that the "translation of the abstract prohibition against `unreasonable searches and seizures' into workable guidelines for the decision of particular cases is a difficult task," went on to observe, "Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant." 387 U.S., at 528-529. He pointed out, too, that one's Fourth Amendment protection subsists apart from his being suspected of criminal behavior. 387 U.S., at 530.IVThis natural and quite proper protective attitude, however, is not a factor in this case, for the seemingly obvious and simple reason that we are not concerned here with any search by the New York social service agency in the Fourth Amendment meaning of that term. It is true that the governing statute and regulations appear to make mandatory the initial home visit and the subsequent periodic "contacts" (which may include home visits) for the inception and continuance of aid. It is also true that the caseworker's posture in the home visit is perhaps, in a sense, both rehabilitative and investigative. But this latter aspect, we think, is given too broad a character and far more emphasis than it deserves if it is equated with a search in the traditional criminal law context. We note, too, that the visitation in itself is not forced or compelled, and that the beneficiary's denial of permission is not a criminal act. If consent to the visitation is withheld, no visitation takes place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search.VIf however, we were to assume that a caseworker's home visit, before or subsequent to the beneficiary's initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment's proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment's standard. Terry v. Ohio, ; Elkins v. United States, . And Mr. Chief Justice Warren observed in Terry that "the specific content and incidents of this right must be shaped by the context in which it is asserted." 392 U.S., at 9.There are a number of factors that compel us to conclude that the home visit proposed for Mrs. James is not unreasonable:1. The public's interest in this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child whose family requires such aid for that child. The focus is on the child and, further, it is on the child who is dependent. There is no more worthy object of the public's concern. The dependent child's needs are paramount, and only with hesitancy would we relegate those needs, in the scale of comparative values, to a position secondary to what the mother claims as her rights.2. The agency, with tax funds provided from federal as well as from state sources, is fulfilling a public trust. The State, working through its qualified welfare agency, has appropriate and paramount interest and concern in seeing and assuring that the intended and proper objects of that tax-produced assistance are the ones who benefit from the aid it dispenses. Surely it is not unreasonable, in the Fourth Amendment sense or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and considerate application, of achieving that assurance.3. One who dispenses purely private charity naturally has an interest in and expects to know how his charitable funds are utilized and put to work. The public, when it is the provider, rightly expects the same. It might well except more, because of the trust aspect of public funds, and the recipient, as well as the caseworker, has not only an interest but an obligation.4. The emphasis of the New York statutes and regulations is upon the home, upon "close contact" with the beneficiary, upon restoring the aid recipient "to a condition of self-support," and upon the relief of his distress. The federal emphasis is no different. It is upon "assistance and rehabilitation," upon maintaining and strengthening family life, and upon "maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection ... ." 42 U.S.C. 601 (1964 ed., Supp. V); Dandridge v. Williams, , and id., at 510 (MARSHALL, J., dissenting). It requires cooperation from the state agency upon specified standards and in specified ways. And it is concerned about any possible exploitation of the child.5. The home visit, it is true, is not required by federal statute or regulation.6 But it has been noted that the visit is "the heart of welfare administration"; that it affords "a personal, rehabilitative orientation, unlike that of most federal programs"; and that the "more pronounced service orientation" effected by Congress with the 1956 amendments to the Social Security Act "gave redoubled importance to the practice of home visiting." Note, Rehabilitation, Investigation and the Welfare Home Visit, 79 Yale L. J. 746, 748 (1970). The home visit is an established routine in States besides New York.7 6. The means employed by the New York agency are significant. Mrs. James received written notice several days in advance of the intended home visit.8 The date was specified. Section 134-a of the New York Social Services Law, effective April 1, 1967, and set forth in n. 2, supra, sets the tone. Privacy is emphasized. The applicant-recipient is made the primary source of information as to eligibility. Outside informational sources, other than public records, are to be consulted only with the beneficiary's consent. Forcible entry or entry under false pretenses or visitation outside working hours or snooping in the home are forbidden. HEW Handbook of Public Assistance Administration, pt. IV, 2200 (a) and 2300; 18 NYCRR 351.1, 351.6, and 351.7. All this minimizes any "burden" upon the homeowner's right against unreasonable intrusion.7. Mrs. James, in fact, on this record presents no specific complaint of any unreasonable intrusion of her home and nothing that supports an inference that the desired home visit had as its purpose the obtaining of information as to criminal activity. She complains of no proposed visitation at an awkward or retirement hour. She suggests no forcible entry. She refers to no snooping. She describes no impolite or reprehensible conduct of any kind. She alleges only, in general and nonspecific terms, that on previous visits and, on information and belief, on visitation at the home of other aid recipients, "questions concerning personal relationships, beliefs and behavior are raised and pressed which are unnecessary for a determination of continuing eligibility." Paradoxically, this same complaint could be made of a conference held elsewhere than in the home, and yet this is what is sought by Mrs. James. The same complaint could be made of the census taker's questions. See MR. JUSTICE MARSHALL'S opinion, as United States Circuit Judge, in United States v. Rickenbacker, 309 F.2d 462 (CA2 1962), cert. denied, . What Mrs. James appears to want from the agency that provides her and her infant son with the necessities for life is the right to receive those necessities upon her own informational terms, to utilize the Fourth Amendment as a wedge for imposing those terms, and to avoid questions of any kind.9 8. We are not persuaded, as Mrs. James would have us be, that all information pertinent to the issue of eligibility can be obtained by the agency through an interview at a place other than the home, or, as the District Court majority suggested, by examining a lease or a birth certificate, or by periodic medical examinations, or by interviews with school personnel. 303 F. Supp., at 943. Although these secondary sources might be helpful, they would not always assure verification of actual residence or of actual physical presence in the home, which are requisites for AFDC benefits,10 or of impending medical needs. And, of course, little children, such as Maurice James, are not yet registered in school.9. The visit is not one by police or uniformed authority. It is made by a caseworker of some training11 whose primary objective is, or should be, the welfare, not the prosecution, of the aid recipient for whom the worker has profound responsibility. As has already been stressed, the program concerns dependent children and the needy families of those children. It does not deal with crime or with the actual or suspected perpetrators of crime. The caseworker is not a sleuth but rather, we trust, is a friend to one in need.10. The home visit is not a criminal investigation, does not equate with a criminal investigation, and despite the announced fears of Mrs. James and those who would join her, is not in aid of any criminal proceeding. If the visitation serves to discourage misrepresentation or fraud, such a byproduct of that visit does not impress upon the visit itself a dominant criminal investigative aspect. And if the visit should, by chance, lead to the discovery of fraud and a criminal prosecution should follow,12 then, even assuming that the evidence discovered upon the home visitation is admissible, an issue upon which we express no opinion, that is a routine and expected fact of life and a consequence no greater than that which necessarily ensues upon any other discovery by a citizen of criminal conduct.11. The warrant procedure, which the plaintiff appears to claim to be so precious to her, even if civil in nature, is not without its seriously objectionable features in the welfare context. If a warrant could be obtained (the plaintiff affords us little help as to how it would be obtained), it presumably could be applied for ex parte, its execution would require no notice, it would justify entry by force, and its hours for execution13 would not be so limited as those prescribed for home visitation. The warrant necessarily would imply conduct either criminal or out of compliance with an asserted governing standard. Of course, the force behind the warrant argument, welcome to the one asserting it, is the fact that it would have to rest upon probable cause, and probable cause in the welfare context, as Mrs. James concedes, requires more than the mere need of the caseworker to see the child in the home and to have assurance that the child is there and is receiving the benefit of the aid that has been authorized for it. In this setting the warrant argument is out of place.It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a tapayer's income tax return, asks that the taxpayer produce for the agent's review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his "rights" in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer's own making. So here Mrs. James has the "right" to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer's resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved.VICamara v. Municipal Court, , and its companion case, See v. City of Seattle, , both by a divided Court, are not inconsistent with our result here. Those cases concerned, respectively, a refusal of entry to city housing inspectors checking for a violation of a building's occupancy permit, and a refusal of entry to a fire department representative interested in compliance with a city's fire code. In each case a majority of this Court held that the Fourth Amendment barred prosecution for refusal to permit the desired warrantless inspection. Frank v. Maryland, , a case that reached an opposing result and that concerned a request by a health officer for entry in order to check the source of a rat infestation, was pro tanto overruled. Both Frank and Camara involved dwelling quarters. See had to do with a commercial warehouse.But the facts of the three cases are significantly different from those before us. Each concerned a true search for violations. Frank was a criminal prosecution for the owner's refusal to permit entry. So, too, was See. Camara had to do with a writ of prohibition sought to prevent an already pending criminal prosecution. The community welfare aspects, of course, were highly important, but each case arose in a criminal context where a genuine search was denied and prosecution followed.In contrast, Mrs. James is not being prosecuted for her refusal to permit the home visit and is not about to be so prosecuted. Her wishes in that respect are fully honored. We have not been told, and have not found, that her refusal is made a criminal act by any applicable New York or federal statute. The only consequence of her refusal is that the payment of benefits ceases. Important and serious as this is, the situation is no different than if she had exercised a similar negative choice initially and refrained from applying for AFDC benefits. If a statute made her refusal a criminal offense, and if this case were one concerning her prosecution under that statute, Camara and See would have conceivable pertinency. VIIOur holding today does not mean, of course, that a termination of benefits upon refusal of a home visit is to be upheld against constitutional challenge under all conceivable circumstances. The early morning mass raid upon homes of welfare recipients is not unknown. See Parrish v. Civil Service Comm'n, 66 Cal. 2d 260, 425 P.2d 223 (1967); Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L. J. 1347 (1963). But that is not this case. Facts of that kind present another case for another day.We therefore conclude that the home visitation as structured by the New York statutes and regulations is a reasonable administrative tool; that it serves a valid and proper administrative purpose for the dispensation of the AFDC program; that it is not an unwarranted invasion of personal privacy; and that it violates no right guaranteed by the Fourth Amendment.Reversed and remanded with directions to enter a judgment of dismissal. It is so ordered.MR. JUSTICE WHITE concurs in the judgment and joins the opinion of the Court with the exception of Part IV thereof. |
1 | Jonathan A. Weiss, for appellant. J. Lee Rankin, Stanley Buchsbaum, and Robert T. Hartmann, for appellee.PER CURIAM. The motion for leave to proceed in forma pauperis is granted. The judgment is vacated and the case is remanded to the Court of Appeals of New York for further consideration in light of In re Winship, . THE CHIEF JUSTICE and Mr. Justice STEWART dissent for the reasons set forth in the dissenting opinion of The Chief Justice in In re Winship, 397 U.S., at 375. Mr. Justice BLACK dissents for the reasons set forth in his dissenting opinion in In re Winship, 397 U.S., at 377.[ S v. City of New York ] |
5 | [Footnote *] Together with No. 1556, Perkins v. Standard Oil Co. of California, on petition for writ of certiorari to the same court. 1. The allowance in 4 of the Clayton Act for attorneys' fees includes fees for appellate legal services rendered in a successfully prosecuted private antitrust action, and the amount of those fees should in general be initially fixed by the District Court after a hearing. 2. Failure to mention attorneys' fees in the Court's mandate in Perkins v. Standard Oil Co., , left the matter open for consideration by the District Court. Certiorari granted; No. 1507, vacated and remanded to the Court of Appeals; No. 1556, vacated and remanded to the District Court.PER CURIAM.Following his success in this Court in Perkins v. Standard Oil Co., , the petitioner filed in the District Court for the District of Oregon an application for allowance of attorneys' fees, pursuant to 4 of the Clayton Act,Fn for legal services performed during the appellate stages of that litigation, both in the Court of Appeals and in this Court. The District Court denied the application, ruling that 4 did not authorize the allowance of attorneys' fees for services performed in connection with appellate proceedings. Petitioner appealed this decision to the Court of Appeals and simultaneously filed in that court two separate applications for attorneys' fees for legal services performed there and in this Court. The Court of Appeals denied the latter application, believing that our mandate in Perkins, by not mentioning attorneys' fees, was intended to preclude an award of such fees.The District Court was in error in holding that 4 does not authorize the award of counsel fees for legal services performed at the appellate stages of a successfully prosecuted private antitrust action. Both the language and purpose of 4 make that construction untenable. See American Can Co. v. Ladoga Canning Co., 44 F.2d 763, cert. denied, . The amount of the award for such services should, as a general rule, be fixed in the first instance by the District Court, after hearing evidence as to the extent and nature of the services rendered. See, e. g., Osborn v. Sinclair Refining Co., 207 F. Supp. 856, 864. The Court of Appeals was also in error in interpreting our mandate as precluding the award of such fees for services performed in connection with the litigation in this Court. Our failure to make explicit mention in the mandate of attorneys' fees simply left the matter open for consideration by the District Court, to which the mandate was directed.The petitions for certiorari are granted and the judgments are vacated. No. 1556 is remanded to the District Court, and No. 1507 to the Court of Appeals, for further proceedings consistent with this opinion. It is so ordered.MR. JUSTICE HARLAN took no part in the consideration or decision of these cases. Fn That section provides in pertinent part as follows:"Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States ... and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 38 Stat. 731, 15 U.S.C. 15. |
0 | Petitioner Johnson testified before a federal grand jury, investigating, inter alia, the disposition of proceeds from her boyfriend's alleged drug trafficking, that she had obtained tens of thousands of dollars to improve her home from a box of cash given her late mother by one Talcott. Subsequently, she was charged with violating 18 U.S.C. § 1623 which proscribes "knowingly mak[ing] any false material declaration" under oath before a grand jury. At her trial, it was revealed that her boyfriend had negotiated the purchase of her home and had an interest in a corporation whose checks had been used to help pay for the property, and that Talcott had died several years before the time he allegedly gave her mother the money. Johnson did not object when, in accordance with then extant Circuit precedent, the judge instructed the jury that materiality was a question for him to decide, and that he had determined that her statements were material. Johnson was convicted of perjury, but before her appeal, this Court ruled, in United States v. Gaudin___, that the materiality of a false statement must be decided by a jury rather than a trial judge. On appeal, Johnson's claim that her conviction was invalid under Gaudin was reviewed by the Eleventh Circuit pursuant to Federal Rule of Criminal Procedure 52(b), which allows plain errors affecting substantial rights to be noticed even though no objection has been made. Following the analysis outlined in United States v. Olano, , the court assumed arguendo that the District Court's failure to submit materiality to the jury constituted "error" that was "clear or obvious." However, it concluded that any such error did not affect "substantial rights" because its independent review of the record showed that there was "overwhelming" evidence of materiality and that no reasonable juror could conclude that Johnson's false statements about the money's source were not material to the grand jury's investigation.Held: The trial court's action in this case was not "plain error" of the sort which an appellate court may notice under Rule 52(b).(a) Since §1623's text leaves no doubt that materiality is an element of perjury, Gaudin dictates that materiality in this case be decided by the jury, not the court. Johnson's failure to timely assert that right before the trial court ordinarily would result in forfeiture of the right pursuant to Rule 30. However, Rule 52(b) mitigates Rule 30 and, contrary to Johnson's argument, governs her direct appeal. The Olano test for applying Rule 52(b) requires that there be (1) error, (2) that is plain, and (3) that affects substantial rights. If these three conditions are met, an appellate court may exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pp. 4-5.(b) The first prong of Olano is satisfied here, as Gaudin must be applied to Johnson's case on direct review. See Griffith v. Kentucky, . The second prong is met as well. In a case such as this — where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is sufficient that the error be plain at the time of appellate consideration. Even assuming that the third prong is also satisfied, a court must still determine whether the forfeited error meets the fourth prong before it may exercise its discretion to correct the error. In this case the fourth question must be answered in the negative. Materiality was essentially uncontroverted at trial and has remained so on appeal. Johnson has presented no plausible argument that her false statement under oath — lying about the source of the money she used to improve her home — was somehow not material to the grand jury investigation. It would be the reversal of her conviction, not the failure to notice the error, that would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Pp. 5-9.82 F. 3d 429, affirmed.Rehnquist, C. J., delivered the opinion of the Court, which was unanimous except insofar as Scalia, J., did not join Parts II-B and II-C. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme CourtNo. 96-203JOYCE B. JOHNSON, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[May 12, 1997]Chief Justice Rehnquist delivered the opinion of the * In this case the trial court itself decided the issue of materiality in a perjury prosecution, rather than submitting it to the jury as our decision in United States v. Gaudin___ (1995), now requires. No objection was made by the petitioner, Joyce B. Johnson, and we hold that the court's action in this case was not "plain error" of the sort which an appellate court may notice under Federal Rule of Criminal Procedure 52(b).In the late 1980's, a federal investigation into the cocaine and marijuana trafficking of Earl James Fields revealed that he and his partner had amassed some $10 million from their illicit activities. Following the money trail, federal authorities subpoenaed petitioner Joyce B. Johnson, Fields' long time girlfriend, to testify before a federal grand jury. Johnson, who is the mother of a child by Fields, earned about $34,000 a year at the Florida Department of Health and Rehabilitative Services. She testified before the grand jury that she owned five pieces of real property, including her house. That house was purchased by Johnson in 1991 for$75,600, and in the next two years she added sufficient improvements to it that in 1993 it was appraised at $344,800. When asked the source of her home improvement funds, Johnson stated that she had put $80,000 to $120,000 into her house, all of which had come from a box of cash given her late mother by one Gerald Talcott in 1985 or 1986.On the basis of this testimony, Johnson was indicted for perjury under 18 U.S.C. § 1623. At trial, it was revealed that Fields had negotiated the original purchase of Johnson's home and that Johnson had paid for the property with eight different cashier's checks, including two from a corporation in which Fields had an interest. It was also established that Gerald Talcott had died in April 1982, several years before the time Johnson claimed he had given her mother the box full of cash.At the close of Johnson's trial, and in accordance with then extant Circuit precedent, see, e.g., United States v. Molinares, 700 F. 2d 647, 653 (CA11 1983), the District Judge instructed the jury that the element of materiality was a question for the judge to decide, and that he had determined that her statements were material. App. 72. Johnson did not object to this instruction. Indeed, when the prosecution had presented evidence concerning materiality during the trial, she had then objected, on the ground that materiality was a matter for the judge, and not the jury, to decide. Id., at 61. The jury returned a verdict of guilty, and Johnson was sentenced to 30 months' imprisonment, three years' supervised release, and a $30,000 fine.After Johnson was convicted, but before her appeal to the Court of Appeals, we decided United States v. Gaudin, supra, which held that the materiality of a false statement must be submitted to the jury rather than decided by the trial judge. On her appeal, Johnson argued that the trial judge's failure to submit materiality to the jury rendered her conviction invalid underGaudin.Because Johnson had failed to object to the trial judge's deciding materiality, the Court of Appeals for the Eleventh Circuit reviewed for plain error. Rule 52(b) of the Federal Rules of Criminal Procedure provides:"Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the Court."Following our analysis in United States v. Olano, , the Court of Appeals assumed arguendo that the District Court's failure to submit materiality to the jury constituted "error" that was "clear or obvious," but concluded nonetheless that any such error did not affect the "substantial rights" of the defendant. That conclusion was based on the court's independent review of the record and determination that there was "overwhelming" evidence of materiality and that "[n]o reasonable juror could conclude that Johnson's false statements about the source of the money ... were not material to the grand jury's investigation." App. to Pet. for Cert. 9a (judgment order reported at 82 F. 2d 429 (CA11 1996)). Due to the conflict between this decision and the Ninth Circuit's en banc decision in United States v. Keys, 95 F. 3d 874 (1996), we granted certiorari. ___ (1996). We now affirm.Title 18 U.S.C. § 1623 proscribes "knowingly mak[ing] any false material declaration" under oath before a grand jury. Although we merely assumed in Gaudin that materiality is an element of making a false statement under 18 U.S.C. § 1001 and although we recently held that materiality is not an element of making a false statement to a federally insured bank under 18 U.S.C. § 1014 United States v. Wells___ (1997), there is no doubt that materiality is an element of perjury under §1623. The statutory text expresslyrequires that the false declaration be "material." Gaudin therefore dictates that materiality be decided by the jury, not the court.Petitioner, however, did not object to the trial court's treatment of materiality. Rule 30 of the Federal Rules of Criminal Procedure provides, "[n]o party may assign as error any portion of the [jury] charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection." This Rule is simply the embodiment of the "familiar" principle that a right "`may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'" Olano, supra, at 731 (quoting Yakus v. United States, ). The Rule is mitigated, however, by Rule 52(b), which allows plain errors affecting substantial rights to be noticed even though there was no objection.Petitioner argues that she need not fall within the "limited" and "circumscribed" strictures of Olano, because the error she complains of here is "structural," and so is outside Rule 52(b) altogether. But the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure. None of the cases discussing "structural error," upon which petitioner relies, were direct appeals from judgments of conviction in the federal system. Several came from state courts which had considered the claimed error under their own rules. See Gideon v. Wainwright, ; Arizona v. Fulminante, ; Sullivan v. Louisiana, . Others came here by way of federal habeas challenges to state convictions. See Vasquez v. Hillery, ; McKaskle v. Wiggins, . None of them were subject to the provisions of Rule 52.But it is that Rule which by its terms governs direct appeals from judgments of conviction in the federal system, and therefore governs this case. We cautioned against any unwarranted expansion of Rule 52(b) in United States v. Young, , because it "would skew the Rule's `careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed,' " id., at 15 (quoting United States v. Frady, ). Even less appropriate than an unwarranted expansion of the Rule would be the creation out of wholecloth of an exception to it, an exception which we have no authority to make. See Carlisle v. United States___, ___ (1996) (slip op., at 9-10).We therefore turn to apply here Rule 52(b) as outlined in Olano. Under that test, before an appellate court can correct an error not raised at trial, there must be (1) "error," (2) that is "plain," and (3) that "affect[s] substantial rights." 507 U.S., at 732. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error " ` "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." ' " Ibid. (quoting United States v. Young, supra, at 15, in turn quoting United States v. Atkinson, ).There is no doubt that if petitioner's trial occurred today, the failure to submit materiality to the jury would be error under Gaudin. Under Griffith v. Kentucky, , a "new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review ... , with no exception for cases in which the new rule constitutes a`clear break' with the past." Id., at 328. Because petitioner is still on direct review, Griffith requires that we apply Gaudin retroactively. Accordingly, under Gaudin there was "error," and the first prong of Olano is satisfied.The second prong is more difficult. Olano explained that the word "plain" is "synonymous with `clear' or, equivalently, `obvious.' " 507 U.S., at 734. But Olano refrained from deciding when an error must be plain to be reviewable. "At a minimum," Olano concluded, the error must be plain "under current law." Ibid. In the case with which we are faced today, the error is certainly clear under "current law," but it was by no means clear at the time of trial.The Government contends that for an error to be "plain," it must have been so both at the time of trial and at the time of appellate consideration. In this case, it says, petitioner should have objected to the court's deciding the issue of materiality, even though near uniform precedent both from this Court and from the Courts of Appeals held that course proper. 1 Petitioner, on the other hand, urges that such a rule would result in counsel's inevitably making a long and virtually useless laundry list of objections to rulings that wereplainly supported by existing precedent. We agree with petitioner on this point, and hold that in a case such as this — where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be "plain" at the time of appellate consideration. Here, at the time of trial it was settled that the issue of materiality was to be decided by the court, not the jury; by the time of appellate consideration, the law had changed, and it is now settled that materiality is an issue for the jury. The second part of the Olano test is therefore satisfied.But even though the error be "plain," it must also "affec[t] substantial rights." It is at this point that petitioner's argument that the failure to submit an element of the offense to the jury is "structural error" becomes relevant. She contends in effect that if an error is so serious as to defy harmless error analysis, it must also "affec[t] substantial rights." A "structural" error, we explained in Arizona v. Fulminante, is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself," 499 U.S., at 310. We have found structural errors only in a very limited class of cases: See Gideon v. Wainwright, (a total deprivation of the right to counsel); Tumey v. Ohio, (lack of an impartial trial judge); Vasquez v. Hillery, (unlawful exclusion of grand jurors of defendant's race); McKaskle v. Wiggins, (the right to self representation at trial); Waller v. Georgia, (the right to a public trial); Sullivan v. Louisiana, (erroneous reasonable doubt instruction to jury).It is by no means clear that the error here fits within this limited class of cases. Sullivan v. Louisiana, thecase most closely on point, held that the erroneous definition of "reasonable doubt" vitiated all of the jury's findings because one could only speculate what a properly charged jury might have done. Id., at 280. The failure to submit materiality to the jury, as in this case, can just as easily be analogized to improperly instructing the jury on an element of the offense, e.g., Yates v. Evatt, ; Carella v. California, ; Pope v. Illinois, ; Rose v. Clark, , an error which is subject to harmless error analysis, as it can be to failing to give a proper reasonable doubt instruction altogether. Cf. California v. Roy___, ___ (1996) (slip op., at 3-4) ("The specific error at issue here — an error in the instruction that defined the crime — is ... as easily characterized as a `misdescription of an element' of the crime, as it is characterized as an error of `omission' ").But we need not decide that question because, even assuming that the failure to submit materiality to the jury "affec[ted] substantial rights," it does not meet the final requirement of Olano. When the first three parts of Olano are satisfied, an appellate court must then determine whether the forfeited error " `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings' " before it may exercise its discretion to correct the error. Olano, 507 U.S., at 736 (quoting Atkinson, 297 U.S., at 160).In this case that question must be answered in the negative. As the Court of Appeals noted, the evidence supporting materiality was "overwhelming." App. to Pet. for Cert. 9a. Materiality was essentially uncontroverted at trial 2 and has remained so on appeal. The grandjury here was investigating petitioner's long time boyfriend's alleged cocaine and marijuana trafficking and the "disposition of money which was proceeds of this cocaine and [marijuana] distribution activity, including the possible concealment of such proceeds as investments in real estate." App. 5-6. Before the Eleventh Circuit and in her briefing before this Court, petitioner has presented no plausible argument that the false statement under oath for which she was convicted — lying about the source of the tens of thousands of dollars she used to improve her home — was somehow not material to the grand jury investigation.On this record there is no basis for concluding that the error "seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Indeed, it would be the reversal of a conviction such as this which would have that effect. "Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it." R. Traynor, The Riddle of Harmless Error 50 (1970). No "miscarriage of justice" will result here if we do not notice the error, Olano, supra, at 736, and we decline to do so. The judgment of the Court of Appeals is thereforeAffirmed. |
0 | The Fourth Amendment held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol. Almeida-Sanchez v. United States, , followed. Pp. 892-898. Affirmed.POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, MARSHALL, and REHNQUIST, JJ., joined. REHNQUIST, J., filed a concurring opinion, post, p. 898. BURGER, C. J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 899. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 914.Mark L. Evans argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney General Petersen, Acting Assistant Attorney General Keeney, Sidney M. Glazer, and Jerome M. Feit.Charles M. Sevilla, by appointment of the Court, , argued the cause for respondent. With him on the brief was John J. Cleary.* [Footnote *] Sanford Jay Rosen filed a brief for the Mexican American Legal Defense and Educational Fund as amicus curiae urging affirmance.MR. JUSTICE POWELL delivered the opinion of the Court.Border Patrol officers stopped respondent's car for a routine immigration search at the traffic checkpoint on Interstate Highway 5 at San Clemente, Cal., on November 12, 1973. They found three aliens concealed in the trunk, and respondent was convicted on three counts of knowingly transporting aliens who were in the country illegally. The Court of Appeals for the Ninth Circuit reversed the conviction in an unreported opinion, relying on dictum in its opinion in United States v. Bowen, 500 F.2d 960 (CA9 1974), aff'd, post, p. 916, to the effect that our decision in Almeida-Sanchez v. United States, , required probable cause for all vehicle searches in the border area, whether conducted by roving patrols or at traffic checkpoints. We granted certiorari. .Nothing in this record suggests that the Border Patrol officers had any special reason to suspect that respondent's car was carrying concealed aliens. Nor does the Government contend that the San Clemente checkpoint is a functional equivalent of the border. Brief for United States 16. The only question for decision is whether vehicle searches at traffic checkpoints, like the roving-patrol search in Almeida-Sanchez, must be based on probable cause.IIn Almeida-Sanchez we rejected the Government's contention that the Nation's strong interest in controlling immigration and the practical difficulties of policing the Mexican border combined to justify dispensing with both warrant and probable cause for vehicle searches by roving patrols near the border. The facts did not require us to decide whether the same rule would apply to traffic checkpoints, which differ from roving patrols in several important respects. 413 U.S., at 273; id., at 276 (POWELL, J., concurring).A consolidated proceeding on motions to suppress in this and similar cases produced an extensive factual record on the operation of traffic checkpoints in southern California. United States v. Baca, 368 F. Supp. 398 (SD Cal. 1973). The San Clemente checkpoint is 62 air miles and 66 road miles north of the Mexican border. It is on the principal highway between San Diego and Los Angeles, and over 10 million vehicles pass the checkpoint in a year. United States v. Martinez-Fuerte, 514 F.2d 308, 312 (CA9 1975). The District Court in Baca described the checkpoint as follows: "Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over the highway stating `ALL VEHICLES, STOP AHEAD, 1 MILE.' Three-quarters of a mile further north are two black on yellow signs suspended over the highway with flashing lights stating `WATCH FOR BRAKE LIGHTS.' At the checkpoint, which is also the location of a State of California weighing station, are two large signs with flashing red lights suspended over the highway. These signs each state `STOP HERE - U.S. OFFICERS.' Placed on the highway are a number of orange traffic cones funneling traffic into two lanes where a Border Patrol agent in full dress uniform, standing behind a white on red `STOP' sign checks traffic. Blocking traffic in the unused lanes are official U.S. Border Patrol vehicles with flashing red lights. In addition, there is a permanent building which houses the Border Patrol office and temporary detention facilities. There are also floodlights for nighttime operation." 368 F. Supp., at 410-411. The Border Patrol would prefer to keep this checkpoint in operation continuously, but bad weather, heavy traffic, and personnel shortages keep it closed about one-third of the time. When it is open, officers screen all northbound traffic. If anything about a vehicle or its occupants leads an officer to suspect that it may be carrying aliens, he will stop the car and ask the occupants about their citizenship. If the officer's suspicion persists, or if the questioning enhances it, he will "inspect" portions of the car in which an alien might hide.1 Operations at other checkpoints are similar, although the traffic at some is light enough that officers can stop all vehicles for questioning and routinely inspect more of them.The Government maintains that these characteristics justify dispensing with probable cause at traffic checkpoints despite the Court's holding in Almeida-Sanchez. It gives essentially two reasons for distinguishing that case. First, a checkpoint officer's discretion in deciding which cars to search is limited by the location of the checkpoint. That location is determined by high-level Border Patrol officials, using criteria that include the degree of inconvenience to the public and the potential for safe operation, as well as the potential for detecting and deterring the illegal movement of aliens. By contrast, officers on roving patrol were theoretically free before Almeida-Sanchez to stop and search any car within 100 miles of the border. Second, the circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.These differences are relevant to the constitutional issue, since the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials. Camara v. Municipal Court, ; Schmerber v. California, . The Fourth Amendment's requirement that searches and seizures be reasonable also may limit police use of unnecessarily frightening or offensive methods of surveillance and investigation. See, e. g., Terry v. Ohio, ; Camara, supra, at 531; Schmerber, supra, at 771-772. While the differences between a roving patrol and checkpoint would be significant in determining the propriety of the stop, which is considerably less intrusive than a search, Terry v. Ohio, supra, they do not appear to make any difference in the search itself. The greater regularity attending the stop does not mitigate the invasion of privacy that a search entails. Nor do checkpoint procedures significantly reduce the likelihood of embarrassment. Motorists whose cars are searched, unlike those who are only questioned, may not be reassured by seeing that the Border Patrol searches other cars as well. Where only a few are singled out for a search, as at San Clemente, motorists may find the searches especially offensive. See Note, Border Searches and the Fourth Amendment, 77 Yale L. J. 1007, 1012-1013 (1968).Moreover, we are not persuaded that the checkpoint limits to any meaningful extent the officer's discretion to select cars for search. The record in the consolidated proceeding indicates that only about 3% of the cars that pass the San Clemente checkpoint are stopped for either questioning or a search, 368 F. Supp., at 411. Throughout the system, fewer than 3% of the vehicles that passed through checkpoints in 1974 were searched, Brief for United States 29, and no checkpoint involved in Baca reported a search rate of more than 10% or 15%. 368 F. Supp., at 412-415. It is apparent from these figures that checkpoint officers exercise a substantial degree of discretion in deciding which cars to search. The Government maintains that they voluntarily exercise that discretion with restraint and search only vehicles that arouse their suspicion, and it insists the officers should be free of judicial oversight of any kind. Viewed realistically, this position would authorize the Border Patrol to search vehicles at random, for no officer ever would have to justify his decision to search a particular car.This degree of discretion to search private automobiles is not consistent with the Fourth Amendment. A search, even of an automobile, is a substantial invasion of privacy.2 To protect that privacy from official arbitrariness, the Court always has regarded probable cause as the minimum requirement for a lawful search. Almeida-Sanchez, 413 U.S., at 269-270; Chambers v. Maroney, . We are not persuaded that the differences between roving patrols and traffic checkpoints justify dispensing in this case with the safeguards we required in Almeida-Sanchez. We therefore follow that decision and hold that at traffic checkpoints removed from the border and its functional equivalents, officers may not search private vehicles without consent or probable cause.3 The Government lists in its reply brief some of the factors on which officers have relied in deciding which cars to search. They include the number of persons in a vehicle, the appearance and behavior of the driver and passengers, their inability to speak English, the responses they give to officers' questions, the nature of the vehicle, and indications that it may be heavily loaded. All of these factors properly may be taken into account in deciding whether there is probable cause to search a particular vehicle. In addition, as we note today in United States v. Brignoni-Ponce, ante, at 884-885, the officers are entitled to draw reasonable inferences from these facts in light of their knowledge of the area and their prior experience with aliens and smugglers. In this case, however, the officers advanced no special reasons for believing respondent's vehicle contained aliens. The absence of probable cause makes the search invalid.IIThe Government also contends that even if Almeida-Sanchez applies to checkpoint searches, the Court of Appeals erred in voiding this search because it occurred after the date of decision in Almeida-Sanchez but before the Court of Appeals stated in United States v. Bowen, supra, that it would require probable cause for checkpoint searches. Examination of the Government's brief in the Ninth Circuit indicates that it did not raise this question below. On the contrary, it represented to the court that the decision in Bowen would be "determinative of the issues in this case." We therefore decline to consider this issue, which was raised for the first time in the petition for certiorari. Affirmed. |
7 | Petitioners, two Maryland corporations and a Delaware corporation, were indicted in a Federal District Court for restraining trade and conspiring and attempting to monopolize commerce in violation of 1 and 2 of the Sherman Act. They were dissolved under their respective state statutes and moved to dismiss the indictment on the ground that their dissolution abated the proceeding. Held: Under the applicable Maryland and Delaware statutes, their corporate lives were sufficiently continued to make them "existing" corporations within the meaning of 8 of the Sherman Act, so that the proceeding did not abate. Pp. 271-274. 258 F.2d 726, affirmed.Robert S. Marx argued the cause for petitioners. With him on the brief were Hilary W. Gans and Roy G. Holmes.Richard A. Solomon argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Hansen and Henry Geller.MR. JUSTICE DOUGLAS delivered the opinion of the Court.Petitioners are corporations - two organized under Maryland law and one under Delaware law - and wholly owned subsidiaries of Schenley Industries, Inc. They were indicted with others for restraining trade, conspiring to monopolize and attempting to monopolize commerce in violation of 1 and 2 of the Sherman Act, 26 Stat. 209, 15 U.S.C. 1, 2. Shortly after the indictment was returned, petitioners were dissolved under their respective state statutes and became separate divisions of a new corporation under the same ultimate ownership. They then moved to dismiss the indictment on the ground that their dissolution abated the proceeding. The District Court denied the motions, holding that under the applicable Maryland and Delaware statutes the existence of the dissolved corporations continued so far as prosecution of this criminal proceeding was concerned. 138 F. Supp. 685. Petitioners then pleaded nolo contendere and the District Court levied fines against them. The Court of Appeals affirmed, 258 F.2d 726. The case is here on a petition for a writ of certiorari which we granted because of a conflict among the Circuits.1 .We start from the premise that in the federal domain prosecutions abate both on the death of an individual defendant (List v. Pennsylvania, ; Schreiber v. Sharpless, ) and on the dissolution of a corporate defendant (Defense Supplies Corp. v. Lawrence Warehouse Co., ), unless the action is saved by statute. We need not decide whether federal law alone would be sufficient to save a federal cause of action against a corporation dissolved under state law. We have here a situation where the interplay of federal and state law makes it clear that petitioners did not escape criminal responsibility under the Sherman Act by the kind of dissolution decreed under Maryland and Delaware law.The Sherman Law in 8 defines "person" to include corporations "existing" under the laws of any State. The question whether a corporation "exists" for any purpose is thus determined by reference to state law. We conclude that under both Maryland and Delaware law the lives of these corporations were not cut short, as is sometimes done on dissolution, cf. Chicago T. & T. Co. v. Wilcox Bldg. Corp., , but were sufficiently continued so that this proceeding did not abate.In Maryland, during the period relevant here, though the dissolution of the corporation was effective when the articles of dissolution had been accepted, the corporation continued "in existence for the purpose of paying, satisfying and discharging any existing debts and obligations ... ." (Flack's Md. Ann. Code, 1951, Art. 23, 72 (b).) It was also provided in 78 (a) that "such dissolution" shall not "abate any pending suit or proceeding by or against the corporation ... ." We have found no Maryland decisions interpreting these sections; but we are satisfied that the term "proceeding," no matter how the state court may construe it,2 implies enough vitality to make the corporation an "existing" enterprise for the purposes of 8 of the Sherman Act.The Delaware statute seems equally clear, though again there is no authoritative interpretation of it. It provides that any "proceeding" begun by or against a corporation before or within three years after dissolution shall continue "until any judgments, orders, or decrees therein shall be fully executed." Del. Code Ann., 1953, Tit. 8, 278; Addy v. Short, 47 Del. 157, 89 A. 2d 136, 139. The term "proceeding" is elsewhere used in the Delaware Code as including criminal prosecutions;3 and that seems to us to be consistent with its normal construction.4 We conclude that irrespective of how the Delaware statute may be construed by the Delaware courts, it sufficiently continued the existence of this corporation for the purpose of 8 of the Sherman Act.Policy reasons look to the same result. Petitioners were wholly owned subsidiaries of Schenley Industries, Inc. After dissolution they simply became divisions of a new corporation under the same ultimate ownership. In this situation there is no more reason for allowing them to escape criminal penalties than damages in civil suits. As the Court of Appeals noted, a corporation cannot be sent to jail. The discharge of its liabilities whether criminal or civil can be effected only by the payment of money. Affirmed. |
7 | In an action for wrongful death on the high seas, the measure of damages is governed by the Death on the High Seas Act, 46 U.S.C. 762, which limits a decedent's survivors' recovery to their "pecuniary loss," and hence the survivors are not entitled to recover additional damages under general maritime law for "loss of society." Pp. 620-626. 545 F.2d 422, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 626. BRENNAN, J., took no part in the consideration or decision of the case.Carl J. Schumacher, Jr., argued the cause for petitioner. With him on the brief were E. D. Vickery and Charles C. Gray.Jack C. Benjamin argued the cause for respondents. With him on the brief for respondent Shinn was Arthur A. Crais, Jr. Charles M. Thompson, Jr., filed a brief for respondents Higginbotham et al. I. P. Saal, Jr., filed a brief for respondent Nation.MR. JUSTICE STEVENS delivered the opinion of the Court.This case involves death on the high seas. The question is whether, in addition to the damages authorized by federal statute, a decedent's survivors may also recover damages under general maritime law. The United States Court of Appeals for the Fifth Circuit, disagreeing with the First Circuit, held that survivors may recover for their "loss of society," as well as for their pecuniary loss.1 We reverse.Petitioner used a helicopter in connection with its oil drilling operations in the Gulf of Mexico about 100 miles from the Louisiana shore. On August 15, 1967, the helicopter crashed outside Louisiana's territorial waters, killing the pilot and three passengers. In a suit brought by the passengers' widows, in their representative capacities, the District Court accepted admiralty jurisdiction2 and found that the deaths were caused by petitioner's negligence. The court awarded damages equal to the pecuniary losses suffered by the families of two passengers.3 Although the court valued the two families' loss of society at $100,000 and $155,000, it held that the law did not authorize recovery for this loss.4 The Court of Appeals reversed, holding that the plaintiffs were entitled to claim damages for loss of society. We granted certiorari limited to this issue. .IIn 1877, the steamer Harrisburg collided with a schooner in Massachusetts coastal waters. The schooner sank, and its first officer drowned. Some five years later, his widow brought a wrongful-death action against the Harrisburg. This Court held that admiralty afforded no remedy for wrongful death in the absence of an applicable state or federal statute. The Harrisburg, . Thereafter, suits arising out of maritime fatalities were founded by necessity on state wrongful-death statutes. See, e. g., The Hamilton, .In 1920, Congress repudiated the rule of The Harrisburg for maritime deaths occurring beyond the territorial waters of any State. It passed the Death on the High Seas Act (hereinafter sometimes DOHSA),5 creating a remedy in admiralty for wrongful deaths more than three miles from shore. This Act limits the class of beneficiaries to the decedent's "wife, husband, parent, child, or dependent relative,"6 establishes a two-year period of limitations,7 allows suits filed by the victim to continue as wrongful-death actions if the victim dies of his injuries while suit is pending,8 and provides that contributory negligence will not bar recovery.9 With respect to damages, the statute declares: "The recovery ... shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought ... ."10 In the half century between 1920 and 1970, deaths on the high seas gave rise to federal suits under DOHSA, while those in territorial waters were largely governed by state wrongful-death statutes.11 DOHSA brought a measure of uniformity and predictability to the law on the high seas, but in territorial waters, where The Harrisburg made state law the only source of a wrongful-death remedy, the continuing impact of that decision produced uncertainty12 and incongruity.13 The reasoning of The Harrisburg, which was dubious at best in 1886,14 became less and less satisfactory as the years passed.In 1970, therefore, the Court overruled The Harrisburg. In Moragne v. States Marine Lines, Inc., , the Court held that a federal remedy for wrongful death does exist under general maritime law. The case concerned a death in Florida's territorial waters. The defendant argued that Congress, by limiting DOHSA to the high seas, had evidenced an intent to preclude federal judicial remedies in territorial waters. The Court concluded, however, that the reason Congress confined DOHSA to the high seas was to prevent the Act from abrogating, by its own force, the state remedies then available in state waters. Id., at 400.In Moragne the Court left various subsidiary questions concerning the nonstatutory death remedy - such as the schedule of beneficiaries and the limitations period - for "further sifting through the lower courts in future litigation." Id., at 408. A few years later, in Sea-Land Services, Inc. v. Gaudet, , the Court confronted some of these questions. Among the issues addressed in Gaudet was the measure of survivors' damages.15 The Court held that awards could include compensation for loss of support and services, for funeral expenses, and for loss of society, but not for mental anguish or grief. Id., at 583-591. The Court recognized that DOHSA, which compensates only for pecuniary losses, did not allow awards for loss of society. But the accident in Gaudet, like that in Moragne, took place in territorial waters, where DOHSA does not apply. The Court chose not to adopt DOHSA's pecuniary-loss standard; instead it followed the "clear majority of States" and "the humanitarian policy of the maritime law," both of which favored recovery for loss of society. 414 U.S., at 587-588. In sum, the Court made a policy determination in Gaudet which differed from the choice made by Congress when it enacted the Death on the High Seas Act.IIThe Gaudet opinion was broadly written. It did not state that the place where death occurred had an influence on its analysis. Gaudet may be read, as it has been, to replace entirely the Death on the High Seas Act.16 Its holding, however, applies only to coastal waters. We therefore must now decide which measure of damages to apply in a death action arising on the high seas - the rule chosen by Congress in 1920 or the rule chosen by this Court in Gaudet.As the divergence of views among the States discloses, there are valid arguments both for and against allowing recovery for loss of society. Courts denying recovery cite two reasons: (1) that the loss is "not capable of measurement by any material or pecuniary standard," and (2) that an award for the loss "would obviously include elements of passion, sympathy and similar matters of improper character." 1 S. Speiser, Recovery for Wrongful Death 3:49 (2d ed. 1974).17 Courts allowing the award counter: (1) that the loss is real, however intangible it may be, and (2) that problems of measurement should not justify denying all relief. See generally Sea-Land Services, Inc. v. Gaudet, supra, at 588-590.In this case, however, we need not pause to evaluate the opposing policy arguments. Congress has struck the balance for us. It has limited survivors to recovery of their pecuniary losses. Respondents argue that Congress does not have the last word on this issue - that admiralty courts have traditionally undertaken to supplement maritime statutes and that such a step is necessary in this case to preserve the uniformity of maritime law. Neither argument is decisive.We recognize today, as we did in Moragne, the value of uniformity, but a ruling that DOHSA governs wrongful-death recoveries on the high seas poses only a minor threat to the uniformity of maritime law.18 Damages aside, none of the issues on which DOHSA is explicit have been settled to the contrary by this Court in either Moragne or Gaudet. Nor are other disparities likely to develop. As Moragne itself implied,19 DOHSA should be the courts' primary guide as they refine the nonstatutory death remedy, both because of the interest in uniformity and because Congress' considered judgment has great force in its own right. It is true that the measure of damages in coastal waters will differ from that on the high seas, but even if this difference proves significant,20 a desire for uniformity cannot override the statute. We realize that, because Congress has never enacted a comprehensive maritime code, admiralty courts have often been called upon to supplement maritime statutes. The Death on the High Seas Act, however, announces Congress' considered judgment on such issues as the beneficiaries, the limitations period, contributory negligence, survival, and damages. See nn. 6-10, supra. The Act does not address every issue of wrongful-death law, see, e. g., n. 15, supra, but when it does speak directly to a question, the courts are not free to "supplement" Congress' answer so thoroughly that the Act becomes meaningless.In Moragne, the Court recognized a wrongful-death remedy that supplements federal statutory remedies. But that holding depended on our conclusion that Congress withheld a statutory remedy in coastal waters in order to encourage and preserve supplemental remedies. 398 U.S., at 397-398. Congress did not limit DOHSA beneficiaries to recovery of their pecuniary losses in order to encourage the creation of nonpecuniary supplements. See generally Barbe v. Drummond, 507 F.2d 794, 801 n. 10 (CA1 1974); Wilson v. Transocean Airlines, 121 F. Supp. 85 (ND Cal. 1954). There is a basic difference between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries. Perhaps the wisdom we possess today would enable us to do a better job of repudiating The Harrisburg than Congress did in 1920, but even if that be true, we have no authority to substitute our views for those expressed by Congress in a duly enacted statute.Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.MR. JUSTICE BRENNAN took no part in the consideration or decision of this case. |
3 | [ United States v. Cors ], 326] Mr. Oscar H. Davis, Washington, D.C., for petitioner. Mr. John Lord O'Brian, Washington, D.C., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. This is suit in the Court of Claims under 902 of the Merchant Marine act of 1936, as amended, 49 Stat. 2015, 53 Stat. 1255, 46 U.S.C. 1242, 46 U.S.C.A. 1242, to recover the balance of 'just compensation' alleged to be due respondent from the United States for requisition his steam tug, the MacArthur, in October, 1942. The tug was a Coast Guard boat built in 1895 and used by it in harbor duties at Baltimore until 1939. It was then transferred to the Coast Guard base at Portland, Maine. , 327] In September, 1941, the Coast Guard advertised it for sale to the highest bidder. Respondent was the highest bidder, purchasing the tug in Maine on March 19, 1942, for $2,875. Thereafter he expended $5,699.78 on labor and materials in repairing and improving the vessel, an amount which would have been substantially greater had he not performed part of the work himself. In April, 1942, respondent received from the Department of Commerce a certificate designating the vessel as a towing steam vessel and authorizing him to employ it in the coasting trade for one year. Respondent then brought the tug to Staten Island, New York, where it remained until requisitioned by the War Shipping Administration on October 15, 1942. A survey by the Navy had indicated it was suitable as a steam- heating plant for heating and pumping fuel oil from oil barges into naval combat vessels. Its condition was said to be 'fair to good'; and its original cost was estimated to be $45,000; its replacement cost, $56,000; and its present value $9,000. It was used as a steam plant to heat oil for use in combat ships. The War Shipping Administration determined that $9,000 was 'just compensation' for the tug and offered that amount to respondent. Respondent accepted 75 per cent of the award, as he was permitted to do by 902(d) of the Act, and brought suit to recover the balance of the $20, 000 which he alleged was the 'just compensation' to which he was entitled, plus interest. Section 902(a) of the Act,1 after providing that the owner of any vessel requisitioned by the Commission shall , 328] be paid 'just compensation for the property taken or for the use of such property,' goes on to state 'but in no case shall the value of the property taken or used be deemed enhanced by the causes necessitating the taking or use.' It is around this latter clause that the present controversy turns. The Court of Claims found that the fair market value at the time of the taking was $15,500 and that respondent was entitled to receive that amount, less the sum already paid, plus interest. 75 F.Supp. 235, 110 Ct. Cl. 66. The importance of tha decision in the settlement of claims arising as a result of the requisitioning program during the period of recent hostilities led us to grant the petition for certiorari. The United States admitted liability for only $10,500, claiming that $ 5,000 of the market value was due to an enhancement brought about by its need for vessels which necessitated their taking. The Court of Claims found that at the time of the requisitioning there existed in and about the Port of New York 'a rising market and a strong demand for tugs of all types' due in part at least to the government's requisitioning program. It found that the , 329] market value of the tug had been enhanced $5,000 by October 15, 1942, due ( 1) to the great increase in shipping and harbor traffic because of the war and (2) to the government's need for vessels in the prosecution of the war. 2 But the Court of Claims held that an owner of property taken by the government was entitled to no , 330] less than he could have received on the market from others, which in the present case was $15,500. The Comptroller General has ruled that 902(a) prohibits the payment of compensation to the extent that it may be based on values in excess of those existing on the date of the President's proclamation of a limited national emergency (September 8, 1939),3 provided that such excess be determined as due to economic conditions directly caused by the national emergency. 4 The Advisory Board on Just Compensation5 formulated various rules for the guidance of the War Shipping Administration in its requisitioning program, including the following:'From the value at the time of taking, there should be deducted any enhancement due, to the Government's need of vessels which has necessitated the taking, to the previous taking of vessels of similar type, or to a prospective taking, reasonably probable, whether such need, taking, or prospect, occurred be- , 331] fore or after the declaration of the national emergency of May 27, 1941. Enhancement due to a general rise in prices or earnings, whenever occurring, should not be deducted. In the application of this rule neither the proclamation of limited emergency of September 8, 1939, nor the facts existing at that time, are in themselves of significance. The Board does not determine whether any enhancement after May 27, 1941, other than as enumerated above as deductible, should be excluded; since the Board is advised that the value of oceangoing vessels was higher on May 27, 1941, than at the time of taking, and that any enhancement since May 27, 1941, in vessels of other types, not deductible under the foregoing, is attributable to a general rise in prices or earnings, and should therefore not be deducted.' The Department of Justice agrees with both the Comptroller General and the Advisory Board that the enhancement which is excluded is not limited to that accruing in the period after the declaration of a national emergency on May 27, 19416 and contends for a construction which would eliminate any enhancement on values due to the war. It argues that the Act as so construed, though different from hitherto announced judicial rules of construction of 'just compensation' within the meaning of the Fifth Amendment, is nevertheless constitutional. Respondent, relying largely on Monongahela Navigation Co. v. United States, , argues that if that construction is adopted it makes the enhancement clause unconstitutional because it conflicts with the judicial construction of 'just compensation' and is therefore beyond the competence of Congress to prescribe. First. We need not reach the question whether the measure of compensation which Congress wrote into the , 332] Act is in all of its applications identical with the judicial standard. We are satisfied that on the present facts the two are coterminous. The Court in its construction of the constitutional provision has been careful not to reduce the concept of 'just compensation' to a formula. The political ethics reflected in the Fifth Amendment reject confiscation as a measure of justice. But the Amendment does not contain any definite standards of fairness by which the measure of 'just compensation' is to be determined. United States ex rel. and for Use of Tennessee Valley Authority v. Powelson, , 279-280, 1054-1055; United States v. Petty Motor Co., , 599. The Court in an endeavor to find working rules that will do substantial justice has adopted practical standards, including that of market value. United States v. Miller, , 280, 147 A.L.R. 55. But it has refused to make a fetish even of market value, since it may not be the best measure of value in some cases. At times some elements included in the criterion of market value have in fairness been excluded, as for example where the property has a special value to the owner because of its adaptability to his needs or where it has a special value to the taker because of its peculiar fitness for the taker's project. See United States v. Miller, supra, and cases cited. Moreover, where the government lays out a project involving the taking of lands, no increment of value arising by virtue of the fact that a particular tract is clearly or probably within the project may be added. Id., , 63 S. Ct. 281-282 and cases cited. Any increase in value due to that fact would reflect speculation as to what the government could be compelled to pay and hence in fairness should be excluded from the determination of what compensation would be just. Id., . The Court of Claims recognized these rules. But it concluded that they represented the only exceptions to the requirement that market value be paid, that they were , 333] inapplicable here, and that therefore there was no enhancement in the value of the vessel that should be excluded from the fair market value in making the award to respondent. We believe, however, that these exceptions are merely illustrations of a principle which excludes enhancement of value resulting from the government's special or extraordinary demand for the property. The special value to the condemner as distinguished from others who may or may not possess the power to condemn has long been excluded as an element from market value. See United States v. Chandler-Dunbar Water Power Co., , 677. In time of war or other national emergency the demand of the government for an article or commodity often causes the market to be an unfair indication of value. The special needs of the government create a demand that outruns the supply. The market, sensitive to the bullish pressure, responds with a spiraling of prices. The normal market price for the commodity becomes inflated. And so the market value of the commodity is enhanced by the special need which the government has for it. That seems to have been the situation in the present case. For as we have seen the Court of Claims found that at the time of the requisition there was 'a rising market and a strong demand for tugs of all types' in and around the Port of New York, due in part at least to the shortage of tugs resulting from the government's requisitioning program. It is not fair that the government be required to pay the enhanced price which its demand alone has created. That enhancement reflects elements of the value that was created by the urgency of its need for the article. It does not reflect what 'a willing buyer would pay in cash to a willing seller,' United States v. Miller, supra, , 147 A.L.R. 55, in a fair market. It represents what can be exacted from the government whose demands in the emergency have cre- , 334] ated a sellers' market. In this situation, as in the case of land included in a proposed project of the government, the enhanced value reflects speculation as to what the government can be compelled to pay. That is a hold-up value, not a fair market value. That is a value which the government itself created and hence in fairness should not be required to pay. Second. What we have said is in accord with our reading of the Report of the Advisory Board. Any enhancement of value must be deducted where it is due (a) 'to the Government's need of vessels which has necessitated the taking,' (b) 'to the previous taking of vessels of similar type,' or (c) 'to a prospective taking, reasonably probable. * * *' The government's need of vessels which has necessitated the taking is its need for the precise ship taken, for the type or class of ship taken, or for ships which perform the same or related functions. The government's need for cargo vessels may affect indirectly the price level of many commodities. It may, for example affect the price of rowboats. But if the government takes a rowboat, the enhancement to be excluded is that which results from the government's activities in the particular market. It is the government's demand in that market that is the measure of the 'causes necessitating the taking or use' in this situation. 7 We also agree with the Advisory Board that the enhancement which is excluded is that which arises before as well as after the declaration of the national emergency of May 27, 1941. Section 902(a) does not have any limiting factor so far as time is concerned. But we cannot say from this record whether any part of the $15,500 that the Court of Claims found to be the fair , 335] market value of the tug at the time of the taking includes any deductible enhancement in value. The Court of Claims found, to be sure, that there was no reasonable prospect of the condemnation of the tug and hence no enhancement in value due to that reason. Yet as we have seen, that is only one source of the enhancement in value which is deductible. There are no findings as to the effect on the market either of the previous taking, if any, of vessels of a similar type, or of the government's need of vessels necessitating the taking, as we have construed it. The only findings at all relevant to these factors are (1) that the increase in market values of 'nearly all vessels in and about the Port of New York' between September 8, 1939 and May 27, 1941 was due to 'the demand for vessels which followed the outbreak of war in Europe'; and (2) that such increase after May 27, 1941, and particularly after December 7, 1941, was due to 'the Government's need for vessels, which necessitated the taking of many vessels and to the great increase in shipping and in harbor traffic' during the war. 8 These findings, however, are not sufficiently discriminating. They do not show the effect on the market of the government's need for this particular ship, for this type or class of vessel, or for ships which perform the same or related functions. The findings as to the rising market for tugs in and about the Port of New York tell us that some of that enhancement is due to the government's need. But we are left in the dark as to how much it may be. In sum the findings do not tell us with sufficient particularity what was the effect of the government's activities in the particular market. Nor do we know whether increases in value of the vessel up to March 19, 1942, when the United States sold it to respondent were re- , 336] flected in the sale price. If they were, the United States has received any enhancement in value that resulted from its need up to that date. Finally, respondent argues that the actual basis for the increase in value of the vessel between March and October, 1942 (the period when respondent owned it) is due to causes other than the government's need. He points out that his total monetary expenditure on the vessel amounted to $ 8,574.78, of which $5,699.78 represented labor and materials. The latter amount, however, would have been substantially greater had not respondent himself performed part of the labor. Respondent plainly would be entitled to any increase in value due to that factor. Moreover, when respondent repaired and reconditioned the boat it was certificated as a towing steam vessel, a substantially new use for the tug. These two factors alone, plus the general price increase, are said to account for the $5,000 enhancement in value found by the Court of Claims. We start with findings that tell us that some of the enhancement in market value is due to the government's need. It is sheer speculation to say that there are offsets against that enhancement which so reduce it as to render the construction of the Act an abstract question. Cf. Ashwander v. Tennessee Valley Authority, , 472. The inadequacies in the findings are due to the erroneous construction of the Act by the Court of Claims. Reversed. Mr. Chief Justice VINSON dissents. Mr. Justice FRANKFURTER, with whom Mr. Justice JACKSON and Mr. Justice BURTON join, dissenting. We brought this case here on certiorari to the Court of Claims under 28 U.S.C. 1255(1), 28 U.S.C.A. 1255(1), because it seemed to present constitutional issues important in the award , 337] of compensation for vessels requisitioned by the Government during the recent national emergency under 902(a) of the Merchant Marine Act of 1936.1 The following facts are the basis of the claim that the scope and validity of that section of the Merchant Marine Act call for adjudication. The steam tug Guthrie was owned by the United States and operated by the Coast Guard continuously from 1895, when she was built, until 1941. In that year a special Board of Survey appointed to determine her condition found her in need of a new boiler and extensive repairs. In view of 'the present emergency and the great need of vessels,' the Board recommended that the necessary reconditioning be undertaken. The Coast Guard, however, directed that she be sold to the highest bidder. Respondent's was the highest bid received, and on March 19, 1942, the Guthrie was sold to him for $2,875. He , 338] proceeded to carry out the repairs that had been indicated by the Coast Guard survey, doing most of the work himself with the aid of a crew of four; the rest was done by a shipyard at Portland. His total expenditure on labor and materials was $5,699.78 but would have been substantially greater had he not been experienced in this type of work. On April 20 and 21, the Department of Commerce licensed the Guthrie as a 'towing steam vessel' permitted to navigate in 'bays, sounds, rivers and harbors' and also authorized respondent to employ her in the coasting trade. Respondent then brought her under her own power to New York where she was rechristened the MacArthur and where she remained inactive until September, 1942, when the Navy surveyed her for use as a steam-heating plant for heating and pumping fuel oil from barges into combat vessels. On October 15, 1942, the War Shipping Administration requisitioned the MacArthur for the Navy and later offered respondent $9,000 as compensation for her. This figure was based upon the Coast Guard survey, the Navy survey, and the rules adopted by the Advisory Board on Just Compensation which had been appointed to clarify the measure of compensation payable by the War Shipping Administration nder 902(a) of the Merchant Marine Act. 2 Respondent protested against , 339] the award and, as he was entitled to do under 902(d) of the Act, accepted 75% of it, and brought suit in the Court of Claims for the difference between the amount he had been offered and the amount he alleged to be due as just compensation. The Court of Claims found that the market value of the MacArthur on the date of taking was $15,500. 75 F.Supp. 235. 110 Ct.Cl. 66. The Government does not dispute that there was a market nor that value on the market was as found, but insists that there should have been deducted from it an amount representing enhancement 'by the causes necessitating the taking' under the terms of 902(a). It bases this contention on two findings of the Court of Claims. The first is that 'At the time of the requisition, there existed in and about the Port of New York a rising market and a strong demand for tugs of all types, including the MacArthur. This situation was due to the greatly increased traffic in the harbor during the period of war, and to the fact that the Government had been requisitioning tugs and to the resulting shortage of tugs.' 75 F.Supp. 235, 110 Ct.Cl. at pages 75-76. The second is that the market value of the MacArthur had been enhanced between September 8, 1939, when the President proclaimed a , 340] limited national emergency, and October 15, 1942, when she was requisitioned, by the sum of $5,000, part of which, after proclamation of a general national emergency on May 27, 1941, 'was due to the Government's need for vessels, which necessitated the taking of many vessels * * *.' Id. 75 F.Supp. 235, 110 Ct.Cl. at page 77. But the Court of Claims concluded that 'it is not possible to allocate to the (Government's need) a definite part of the increase in market value, but even if it were possible to do so, we do not think that the defendant is entitled to a deduction from market value on this account.' Id., 75 F.Supp. 235, 110 Ct.Cl. at page 78. The Government's arguments in support of its claim that all or part of the $5,000 enhancement in market value of the MacArthur should be deducted in computing just compensation to respondent ultimately reduce to two. The first is that there should be deducted any speculative increase of value due to the probability of the taking. It is clear that such a deduction must be made where the increase is traceable to the probability that the Government would take the particular property for which compensation is sought. United States v. Miller, , 147 A.L.R. 55. But the application of this principle is impossible here in the face of the Court of Claims' explicit finding that 'prior to the time that the defendant requisitioned the MacArthur there was no reasonable prospect that she would be requisitioned, and no part of the enhancement of her value was due to such a prospect.' It is arguable, however, that the rationale of the Miller case should be extended to property of a less unique character than land-property of a class any member of which would fulfill the taker's need more or less equally well. As to such property there may be speculative increase in value because of the dual expectation that some members of the class will be taken and that the taker may be forced to pay, , 341] when the time comes for the award of compensation, something more than what would have been market value had not speculation occurred. See McGovern v. City of New York, , 877, 46 L.R.A.,N.S., 391. And this might be true even though it could not be said that it was probable that a particular member of the class-in this case a particular tug-would be taken. 3 But this is a question we do not need to pass on now because, in addition to the finding that it was not probable that the MacArthur would be taken, the record , 342] contains evidence of the most conclusive kind that a taking was improbable: the Government had got rid of the tug only seven months before the taking, with complete awareness that she was capable of being adequately reconditioned. Among those whose dealings in tugs established market value, therefore, whatever may have been the tendency of their activities to bring about speculative increase in the value of tugs generally, it must have seemed so unlikely that the Government would reverse itself and take the MacArthur back that the market value found by the Court of Claims for this particular tug could hardly have reflected enhancement due to speculation at the expense of the Government's need for her. It may be suggested, to be sure, that the need which prompted this reversal might have been anticipated by one shrewd enough to foresee a growing shortage of tugs more accurately than those responsible for the Government's decisions in these matters. But whatever might conceivably be the effect on the market of the operations of such persons, it would be an effect so far beyond the possibility of measurement that it would be futile in the extreme to remand for a finding on the point, especially when it is remembered that the MacArthur was requisitioned not for use as a tug but as a heating plant. We must reject, therefore, speculation by purchasers of tugs at the expense of the Government's need as a factor contributing to the market value of the MacArthur at the time she was requisitioned. The only other way that has been suggested in which her market value could have been increased by the Government's need is as a result of the increase in demand presumably brought about by previous Government seizures of tugs during a period when, as the Court of Claims found, there was a shortage of tugs due to a great 'increase in shipping and , 343] harbor traffic.' In this indirect way, the Government's need can be regarded as a 'cause' of the increase in the MacArthur's market value. Because this need could be foreseen at least by the time of the declaration of limited national emergency on September 8, 1939, the Government argues that all enhancement in the value of vessels since that date should therefore be deducted from their market price in determining just compensation. In the alternative, it urges that there should be deducted that proportion of this increase which is allocable to the Government's intervention in the market. Whether regarded as founded upon 902(a) of the Merchant Marine Act or upon judicial principles of just compensation, both these contentions, in my judgment, must be rejected. When the Government first took out of commercial operation some of the tugs which had been thus employed, it could requisition them at a price uninfluenced by its own need. A subsequent increase in the market value, though precipitated by the shortage caused by the earlier taking, could be a direct result only of the tug operators' need for the remaining tugs, not of the Government's for those it had taken. Leaving enhancement attributable to speculation out of account, as the record obliges us to do, the Government could then requisition still more tugs at a market value at most no higher than the level at which the new price had settled. Unlike an increase due to speculation by buyers of tugs that awards for requisitioned tugs would exceed the price likely to be paid by commercial operators purchasing tugs for their own use, an increase due to shortage would affect the price to any purchaser and enhance value to any owner even though no further requisitions were anticipated and even though none were made. Exactly the same increase would result whether the shortage were induced by the expanded business of a commercial oper- , 344] ator or by Government requisition. It simply is not true, therefore, that the enhanced price resulting from shortage is a price which the need necessitating the taking, as opposed to need of the tug operators, created. The need of the tug operators, moreover, not merely for the tugs that had been taken, but for additional tugs, was in its turn only one factor in the complex which makes up demand in a period of high costs, high wages, shortages, and inflation. We speak, in referring to the interacting forces of such a period, of the 'inflationary spiral,' and although a requisition by the Government in the midst of this dynamic process undoubtedly has some effect in accelerating it, it is an effect which loses its ascertainable significance by being merged with countless other factors. Whatever may be the proper scope of the declaration in 902(a) that the value of vessels taken during the national emergency shall not 'be deemed enhanced by the causes necessitating the taking or use,' the wartime economy itself cannot be regarded as such a cause. Even assuming that there may be other circumstances than those of gambling on the result o an award in which a connection between the taker's intervention in the market and an enhancement of price might be traced, on this record it would be asking for the impossible to insist on an attempt to trace one. The Government has advanced no basis for the undertaking; it points to no evidence already offered which would justify it and suggests none that it might have offered. Under the circumstances, we should not require the Court of Claims to embark upon so murky a sea of speculation. Cf. International Harvester Co. of America v. Commonwealth of Kentucky, , 224, 855-856. If what I have said appeals to common sense, market values which have been increased as the result of the interaction of supply and demand in a wartime economy , 345] cannot be rejected as the applicable measure of just compensation merely because the competition of the Government, regarded from the point of view of an exercise in tracing ultimate causes, may theoretically be deemed to have contributed to the increase. Nor is it to make a fetish of market value to affirm its selection as a standard in a case where no other standard that offers the possibility of observance has been put forward. The record rules out any increase due to speculation, the only other suggested form of enhancement attributable to the Government's need. Since it is our duty to avoid constitutional adjudication, see the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, , 346 et seq., 480, 482, and Rescue Army v. Municipal Court, , 568 et seq., 1419, the decision below should be affirmed without reaching the constitutional issues raised by the Government's construction of 902(a). |
5 | The District Court on May 26, 1971, awarded to the successful plaintiff-petitioners, Negro parents and guardians, in this protracted litigation involving the desegregation of the Richmond, Virginia, public schools, expenses and attorneys' fees for services rendered from March 10, 1970, to January 29, 1971. On March 10, 1970, petitioners had moved in the District Court for additional relief under Green v. County School Board of New Kent County, , in which this Court held that a freedom-of-choice plan (like the one previously approved for the Richmond schools) was not acceptable where methods promising speedier and more effective conversion to a unitary school system were reasonably available. Respondent School Board then conceded that the plan under which it had been operating was not constitutional. After considering a series of alternative and interim plans, the District Court on April 5, 1971, approved the Board's third proposed plan, and the order allowing fees followed shortly thereafter. Noting the absence of any explicit statutory authorization for such an award in this type of case, the court predicated its ruling on the grounds (1) that actions taken and defenses made by the School Board during the relevant period resulted in an unreasonable delay in desegregation of the schools, causing petitioners to incur substantial expenditures to secure their constitutional rights, and (2) that plaintiffs in actions of this kind were acting as "private attorneys general," Newman v. Piggie Park Enterprises, Inc., , in leading the School Board into compliance with the law, thus effectuating the constitutional guarantees of nondiscrimination. The Court of Appeals reversed, stressing that "if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress and not by the courts." Following initial submission of the case to the Court of Appeals but before its decision, Congress enacted 718 of the Education Amendments of 1972, which granted a federal court authority to award the prevailing party a reasonable attorney's fee when appropriate upon entry of a final order in a school desegregation case, the applicability of which to this and other litigation the court then considered. In the other cases, the court held that 718 did not apply to services rendered prior to July 1, 1972, the effective date of 718, and in this case reasoned that there were no orders pending or appealable on either May 26, 1971, when the District Court made its fee award, or on July 1, 1972, and that therefore 718 could not be used to sustain the award. Held: Section 718 can be applied to attorneys' services that were rendered before that provision was enacted, in a situation like the one here involved where the propriety of the fee award was pending resolution on appeal when the statute became law. Pp. 710-724. (a) An appellate court must apply the law in effect at the time it renders its decision, Thorpe v. Housing Authority of the City of Durham, , unless such application would work a manifest injustice or there is statutory direction or legislative history to the contrary. Pp. 711-716. (b) Such injustice could result "in mere private cases between individuals," United States v. Schooner Peggy, 1 Cranch 103, 110, the determinative factors being the nature and identity of the parties, the nature of their rights, and the nature of the impact of the change in law upon those rights. Upon consideration of those aspects here (see infra, (c)-(e)), it cannot be said that the application of the statute would cause injustice. Pp. 716-721. (c) There was a disparity in the respective abilities of the parties to protect themselves, and the litigation did not involve merely private interests. Petitioners rendered substantial service to the community and to the Board itself by bringing it into compliance with its constitutional mandate and thus acting as a "private attorney general" in vindicating public policy. Pp. 718-719. (d) Application of 718 does not affect any matured or unconditional rights, the School Board having no unconditional right to the funds allocated to it by the taxpayers. P. 720. (e) No increased burden was imposed since the statute did not alter the Board's constitutional responsibility for providing pupils with a nondiscriminatory education, and there is no change in the substantive obligation of the parties. Pp. 720-721. (f) The Court of Appeals erred in concluding that 718 was inapplicable to the petitioners' request for fees because there was no final order pending unresolved on appeal, since the language of 718 is not to be read to mean that a fee award must be made simultaneously with the entry of a desegregation order, and a district court must have discretion in a school desegregation case to award fees and costs incident to the final disposition of interim matters. Pp. 721-723. (g) Since the District Court made an allowance for services to January 29, 1971, when petitioners were not yet the "prevailing party" within the meaning of 718, the fee award should be recomputed to April 5, 1971, or thereafter. Pp. 723-724. 472 F.2d 318, vacated and remanded.BLACKMUN, J., delivered the opinion of the Court, in which all Members joined except MARSHALL and POWELL, JJ., who took no part in the consideration or decision of the case.William T. Coleman, Jr., argued the cause for petitioners. With him on the briefs were Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, Charles Stephen Ralston, Eric Schnapper, and Louis R. Lucas.George B. Little argued the cause for respondents. With him on the brief were James K. Cluverius and Conard B. Mattox, Jr.* [Footnote *] Briefs of amici curiae urging reversal were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, and Gerald P. Norton for the United States, and by David S. Tatel and Armand Derfner for the Lawyers' Committee for Civil Rights Under Law.MR. JUSTICE BLACKMUN delivered the opinion of the Court.In this protracted school desegregation litigation, the District Court awarded the plaintiff-petitioners expenses and attorneys' fees for services rendered from March 10, 1970, to January 29, 1971. 53 F. R. D. 28 (ED Va. 1971). The United States Court of Appeals for the Fourth Circuit, one judge dissenting, reversed. 472 F.2d 318 (1972). We granted certiorari, , to determine whether the allowance of attorneys' fees was proper. Pertinent to the resolution of the issue is the enactment in 1972 of 718 of Title VII, the Emergency School Aid Act, 20 U.S.C. 1617 (1970 ed., Supp. II), as part of the Education Amendments of 1972, Pub. L. 92-318, 86 Stat. 235, 369.IThe suit was instituted in 1961 by 11 Negro parents and guardians against the School Board of the city of Richmond, Virginia, as a class action under the Civil Rights Act of 1871, 42 U.S.C. 1983, to desegregate the public schools. On March 16, 1964, after extended consideration,1 the District Court approved a "freedom of choice" plan by which every pupil was permitted to attend the school of the pupil's or the parents' choice, limited only by a time requirement for the transfer application and by lack of capacity at the school to which transfer was sought. On appeal, the Fourth Circuit, sitting en banc, affirmed, with two judges dissenting in part, and held that the plan satisfied the Board's constitutional obligations. 345 F.2d 310 (1965). The court saw no error in the trial court's refusal to allow the plaintiffs' attorneys more than a nominal fee ($75). Id., at 321. The dissenters referred to the fee as "egregiously inadequate." Id., at 324. On petition for a writ of certiorari, this Court, per curiam, , summarily held that the petitioners improperly had been denied a full evidentiary hearing on their claim that a racially based faculty allocation system rendered the plan constitutionally inadequate under Brown v. Board of Education, . In vacating the judgment of the Court of Appeals and in remanding the case, we expressly declined to pass on the merits of the desegregation plan and noted that further judicial review following the hearing was not precluded. 382 U.S., at 105.After the required hearing, the District Court, on March 30, 1966, approved a revised "freedom of choice" plan2 submitted by the Board and agreed to by the petitioners. App. 17a. It provided that if the steps taken by the Board "do not produce significant results during the 1966-67 school year, it is recognized that the freedom of choice plan will have to be modified." Id., at 23a. This plan was in operation about four years. While it was in effect, Green v. County School Board of New Kent County, , was decided. The Court there held that where methods promising speedier and more effective conversion to a unitary system were reasonably available, a freedom-of-choice plan was not acceptable. Id., at 439-441.Thereafter, on March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green, supra, in Alexander v. Holmes County Board of Education, , and in Carter v. West Feliciana Parish School Board, . Specifically, petitioners asked that the court "require the defendant school board forthwith to put into effect" a plan that would "promptly and realistically convert the public schools of the City of Richmond into a unitary non-racial system," and that the court "award a reasonable fee to [petitioners'] counsel." App. 25a. The court then ordered the Board to advise the court whether the public schools were being operated "in accordance with the constitutional requirements ... enunciated by the United States Supreme Court." Id., at 27a. The Board, by a statement promptly filed with the District Court, averred that it had operated the school system to the best of its knowledge and belief in accordance with the decree of March 30, 1966, but that it has "been advised" that the city schools were "not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court." Id., at 28a. It was also asserted that the Board had requested the Department of Health, Education, and Welfare to make a study and recommendation; that the Department had agreed to undertake to do this by May 1; and that the Board would submit a plan for the operation of the public school system not later than May 11. Ibid. Following a hearing, however, the District Court, on April 1, 1970, entered a formal order vacating its order of March 30, 1966, and enjoining the defendants "to disestablish the existing dual system" and to replace it "with a unitary system." See 317 F. Supp. 555, 558 (ED Va. 1970). Thereafter, the Board and several intervenors filed desegregation plans.The initial plan offered by the Board and HEW was held unacceptable by the District Court on June 26, 1970. Id., at 572. The court was concerned (a) with the fact that the Board had taken no voluntary action to change its freedom-of-choice plan after this Court's decision in Green two years before, id., at 560, (b) with the plan's failure to consider patterns of residential segregation in fixing school zone lines or to use transportation as a desegregation tool, despite the decision in Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (CA4 1970), aff'd as modified, , and (c) with its failure to consider racial factors in zoning, despite the approval thereof in Warner v. County School Board of Arlington County, 357 F.2d 452 (CA4 1966). 317 F. Supp., at 577-578. The District Court also rejected desegregation plans offered by intervenors and by the petitioners.3 A second plan submitted by the Board was also deemed to be unsatisfactory in certain respects. Nonetheless, on August 17 the court found its adoption on an interim basis for 1970-1971 to be necessary, since the school year was to begin in two weeks.4 Id., at 578. The court directed the defendants to file within 90 days a report setting out the steps taken "to create a unitary system ... and ... the earliest practical and reasonable date that any such system could be put into effect." Ibid.The Board then submitted three other desegregation plans. Hearings were held on these and on still another plan submitted by the petitioners.5 On April 5, 1971, the court adopted the Board's third plan, which involved pupil reassignments and extensive transportation within the city. 325 F. Supp. 828 (ED Va. 1971).6 Meanwhile, the Board had moved for leave to make the school boards and governing bodies of adjoining Chesterfield and Henrico Counties, as well as the Virginia State Board of Education, parties to the litigation, and to serve upon these entities a third-party complaint to compel them to take all necessary action to bring about the consolidation of the systems and the merger of the boards. The court denied the defense motion for the convening of a three-judge court. 324 F. Supp. 396 (ED Va. 1971).On January 10, 1972, the court ordered into effect a plan for the integration of the Richmond schools with those of Henrico and Chesterfield Counties. 338 F. Supp. 67 (ED Va. 1972). On appeal, the Fourth Circuit, sitting en banc, reversed, with one judge dissenting, holding that state-imposed segregation had been "completely removed" in the Richmond school district and that the consolidation was not justified in the absence of a showing of some constitutional violation in the establishment and maintenance of these adjoining and separate school districts. 462 F.2d 1058, 1069 (1972). We granted cross-petitions for writs of certiorari. . After argument, the Court of Appeals' judgment was affirmed by an equally divided Court. Richmond School Board v. Board of Education, .IIThe petitioners' request for a significant award of attorneys' fees was included, as has been noted, in their pivotal motion of March 10, 1970. App. 25a. That application was renewed on July 2. Id., at 66a. The District Court first suggested, by letter to the parties, that they attempt to reach agreement as to fees. When agreement was not reached, the court called for supporting material and briefs.7 In due course the court awarded counsel fees in the amount of $43,355 for services rendered from March 10, 1970, to January 29, 1971, and expenses of $13,064.65. 53 F. R. D. 28, 43-44 (ED Va. 1971).Noting the absence at that time of any explicit statutory authorization for an award of fees in school desegregation actions, id., at 34, the court based the award on two alternative grounds rooted in its general equity power.8 First, the court observed that prior desegregation decisions demonstrated the propriety of awarding counsel fees when the evidence revealed obstinate noncompliance with the law or the use of the judicial process for purposes of harassment or delay in affording rights clearly owed.9 Applying the test enunciated by the Fourth Circuit in 345 F.2d, at 321, the court sought to determine whether "the bringing of the action should have been unnecessary and was compelled by the school board's unreasonable, obdurate obstinacy." Examining the history of the litigation, the court found that at least since 1968 the Board clearly had been in default in its constitutional duty as enunciated in Green. While reluctant to characterize the litigation engendered by that default as unnecessary in view of the ongoing development of relevant legal standards, the court observed that the actions taken and the defenses asserted by the Board had caused an unreasonable delay in the desegregation of the schools and, as a result, had caused the plaintiffs to incur substantial expenditures of time and money to secure their constitutional rights.10 As an alternative basis for the award, the District Court observed that the circumstances that persuaded Congress to authorize by statute the payment of counsel fees under certain sections of the Civil Rights Act of 196411 were present in even greater degree in school desegregation litigation. In 1970-1971, cases of this kind were characterized by complex issues pressed on behalf of large classes and thus involved substantial expenditures of lawyers' time with little likelihood of compensation or award of monetary damages. If forced to bear the burden of attorneys' fees, few aggrieved persons would be in a position to secure their and the public's interests in a nondiscriminatory public school system. Reasoning from this Court's per curiam decision in Newman v. Piggie Park Enterprises, Inc., , the District Judge held that plaintiffs in actions of this kind were acting as private attorneys general in leading school boards into compliance with the law, thereby effectuating the constitutional guarantee of nondiscrimination and rendering appropriate the award of counsel fees. 53 F. R. D., at 41-42.The Court of Appeals, in reversing, emphasized that the Board was not operating "in an area where the practical methods to be used were plainly illuminated or where prior decisions had not left a `lingering doubt' as to the proper procedure to be followed," particularly in the light of uncertainties existing prior to this Court's then impending decision in Swann v. Charlotte-Mecklenburg Board of Education, . 472 F.2d, at 327. It felt that by the failure of Congress to provide specifically for counsel fees "in a statutory scheme designed to further a public purpose, it may be fairly accepted that it did so purposefully," and that "if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress and not by the courts." Id., at 330-331.After initial submission of the case to the Court of Appeals, but prior to its decision, the Education Amendments of 1972, of which 718 of Title VII of the Emergency School Aid Act is a part, became law. Section 718, 20 U.S.C. 1617 (1970 ed., Supp. II), grants authority to a federal court to award a reasonable attorney's fee when appropriate in a school desegregation case.12 The Court of Appeals, sitting en banc, then heard argument as to the applicability of 718 to this and other litigation.13 In the other cases it held that only legal services rendered after July 1, 1972, the effective date of 718, see Pub. L. 92-318, 2 (c) (1), 86 Stat. 236, were compensable under that statute. Thompson v. School Board of the City of Newport News, 472 F.2d 177 (CA4 1972). In the instant case the court held that, because there were no orders pending or appealable on either May 26, 1971, when the District Court made its fee award, or on July 1, 1972, when the statute became effective, 718 did not sustain the allowance of counsel fees.IIIIn Northcross v. Board of Education of the Memphis City Schools, , we held that under 718 "the successful plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" We decide today a question left open in Northcross, namely, "whether 718 authorizes an award of attorneys' fees insofar as those expenses were incurred prior to the date that that section came into effect." Id., at 429 n. 2.The District Court in this case awarded counsel fees for services rendered from March 10, 1970, when petitioners filed their motion for further relief, to January 29, 1971, when the court declined to implement the plan proposed by the petitioners. It made its award on May 26, 1971, after it had ordered into effect the non-interim desegregation plan which it had approved. The Board appealed from that award, and its appeal was pending when Congress enacted 718. The question, properly viewed, then, is not simply one relating to the propriety of retroactive application of 718 to services rendered prior to its enactment, but rather, one relating to the applicability of that section to a situation where the propriety of a fee award was pending resolution on appeal when the statute became law.This Court in the past has recognized a distinction between the application of a change in the law that takes place while a case is on direct review, on the one hand, and its effect on a final judgment14 under collateral attack,15 on the other hand. Linkletter v. Walker, . We are concerned here only with direct review.AWe anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.The origin and the justification for this rule are found in the words of Mr. Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103 (1801): "It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional ... I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns ... the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." Id., at 110.16 In the wake of Schooner Peggy, however, it remained unclear whether a change in the law occurring while a case was pending on appeal was to be given effect only where, by its terms, the law was to apply to pending cases, as was true of the convention under consideration in Schooner Peggy, or, conversely, whether such a change in the law must be given effect unless there was clear indication that it was not to apply in pending cases. For a very long time the Court's decisions did little to clarify this issue.17 Ultimately, in Thorpe v. Housing Authority of the City of Durham, , the broader reading of Schooner Peggy was adopted, and this Court ruled that "an appellate court must apply the law in effect at the time it renders its decision." Id., at 281. In that case, after the plaintiff Housing Authority had secured a state court eviction order, and it had been affirmed by the Supreme Court of North Carolina, Housing Authority of the City of Durham v. Thorpe, 267 N.C. 431, 148 S. E. 2d 290 (1966), and this Court had granted certiorari, , the Department of Housing and Urban Development ordered a new procedural prerequisite for an eviction. Following remand by this Court for such further proceedings as might be appropriate in the light of the new directive, , the state court adhered to its decision. 271 N.C. 468, 157 S. E. 2d 147 (1967).18 This Court again granted certiorari. . Upon review, we held that, although the circular effecting the change did not indicate whether it was to be applied to pending cases or to events that had transpired prior to its issuance,19 it was, nonetheless, to be applied to anyone residing in the housing project on the date of its promulgation. The Court recited the language in Schooner Peggy, quoted above, and noted that that reasoning "has been applied where the change was constitutional, statutory, or judicial," 393 U.S., at 282 (footnotes omitted), and that it must apply "with equal force where the change is made by an administrative agency acting pursuant to legislative authorization." Ibid. Thorpe thus stands for the proposition that even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect.Accordingly, we must reject the contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature.20 While neither our decision in Thorpe nor our decision today purports to hold that courts must always thus apply new laws to pending cases in the absence of clear legislative direction to the contrary,21 we do note that insofar as the legislative history of 718 is supportive of either position,22 it would seem to provide at least implicit support for the application of the statute to pending cases.23 BThe Court in Thorpe, however, observed that exceptions to the general rule that a court is to apply a law in effect at the time it renders its decision "had been made to prevent manifest injustice," citing Greene v. United States, .24 Although the precise category of cases to which this exception applies has not been clearly delineated, the Court in Schooner Peggy suggested that such injustice could result "in mere private cases between individuals," and implored the courts to "struggle hard against a construction which will, by a retrospective operation, affect the rights of parties." 1 Cranch, at 110. We perceive no such threat of manifest injustice present in this case. We decline, accordingly, to categorize it as an exception to Thorpe's general rule.The concerns expressed by the Court in Schooner Peggy and in Thorpe relative to the possible working of an injustice center upon (a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights. In this case the parties consist, on the one hand, of the School Board, a publicly funded governmental entity, and, on the other, a class of children whose constitutional right to a nondiscriminatory education has been advanced by this litigation. The District Court rather vividly described what it regarded as the disparity in the respective abilities of the parties adequately to present and protect their interests.25 Moreover, school desegregation litigation is of a kind different from "mere private cases between individuals." With the Board responsible for the education of the very students who brought suit against it to require that such education comport with constitutional standards, it is not appropriate to view the parties as engaged in a routine private lawsuit. In this litigation the plaintiffs may be recognized as having rendered substantial service both to the Board itself, by bringing it into compliance with its constitutional mandate, and to the community at large by securing for it the benefits assumed to flow from a nondiscriminatory educational system.26 Brown v. Board of Education, 347 U.S., at 494. In Northcross we construed, as in pari passu, 718 and 204 (b) of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3 (b), providing for an award of counsel fees to a successful plaintiff under the public accommodation subchapter of that Act. Our discussion of the latter provision in Piggie Park is particularly apt in the context of school desegregation litigation: "When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts." 390 U.S., at 401-402 (footnotes omitted). Application of 718 to such litigation would thus appear to have been anticipated by Mr. Chief Justice Marshall in Schooner Peggy when he noted that in "great national concerns... the court must decide according to existing laws." 1 Cranch, at 110. Indeed, the circumstances surrounding the passage of 718, and the numerous expressions of congressional concern and intent with respect to the enactment of that statute, all proclaim its status as having to do with a "great national concern."27 The second aspect of the Court's concern that injustice may arise from retrospective application of a change in law relates to the nature of the rights effected by the change. The Court has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional. See Greene v. United States, 376 U.S., at 160; Claridge Apartments Co. v. Commissioner, ; Union Pacific R. Co. v. Laramie Stock Yards Co., . We find here no such matured or unconditional right affected by the application of 718. It cannot be claimed that the publicly elected School Board had such a right in the funds allocated to it by the taxpayers. These funds were essentially held in trust for the public, and at all times the Board was subject to such conditions or instructions on the use of the funds as the public wished to make through its duly elected representatives.The third concern has to do with the nature of the impact of the change in law upon existing rights, or, to state it another way, stems from the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard. In Thorpe, we were careful to note that by the circular the "respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged... . Likewise, the lease agreement between the Authority and petitioner remains inviolate." 393 U.S., at 279. Here no increased burden was imposed since 718 did not alter the Board's constitutional responsibility for providing pupils with a nondiscriminatory education. Also, there was no change in the substantive obligation of the parties. From the outset, upon the filing of the original complaint in 1961, the Board engaged in a conscious course of conduct with the knowledge that, under different theories, discussed by the District Court and the Court of Appeals, the Board could have been required to pay attorneys' fees. Even assuming a degree of uncertainty in the law at that time regarding the Board's constitutional obligations, there is no indication that the obligation under 718, if known, rather than simply the common-law availability of an award, would have caused the Board to order its conduct so as to render this litigation unnecessary and thereby preclude the incurring of such costs.The availability of 718 to sustain the award of fees against the Board therefore merely serves to create an additional basis or source for the Board's potential obligation to pay attorneys' fees. It does not impose an additional or unforeseeable obligation upon it.Accordingly, upon considering the parties, the nature of the rights, and the impact of 718 upon those rights, it cannot be said that the application of the statute to an award of fees for services rendered prior to its effective date, in an action pending on that date, would cause "manifest injustice," as that term is used in Thorpe, so as to compel an exception of the case from the rule of Schooner Peggy.CFinally, we disagree with the Court of Appeals' conclusion that 718 by its very terms is inapplicable to the petitioners' request for fees "because there was no `final order' pending unresolved on appeal," 472 F.2d, at 331, when 718 became effective, or on May 26, 1971, when the District Court made its award.It is true that when the District Court entered its order, it was at least arguable that the petitioners had not yet become "the prevailing party," within the meaning of 718. The application for fees had been included in their March 10, 1970, motion for further relief in the light of developments indicated by the decision two years before in Green. The Board's first plan was disapproved by the District Court on June 26. Its second plan was also disapproved but was ordered into effect on an interim basis on August 17 for the year about to begin. The third plan was ultimately approved on April 5, 1971, and the order allowing fees followed shortly thereafter.Surely, the language of 718 is not to be read to the effect that a fee award must be made simultaneously with the entry of a desegregation order. The statute, instead, expectedly makes the existence of a final order a prerequisite to the award. The unmanageability of a requirement of simultaneity is apparent when one considers the typical course of litigation in a school desegregation action. The history of this litigation from 1970 to 1972 is illustrative. The order of June 20, 1970, suspending school construction, the order of August 17 of that year placing an interim plan in operation, and the order of April 5, 1971, ordering the third plan into effect, all had become final when the fee award was made on May 26, 1971.28 Since most school cases can be expected to involve relief of an injunctive nature that must prove its efficacy only over a period of time and often with frequent modifications, many final orders may issue in the course of the litigation. To delay a fee award until the entire litigation is concluded would work substantial hardship on plaintiffs and their counsel, and discourage the institution of actions despite the clear congressional intent to the contrary evidenced by the passage of 718. A district court must have discretion to award fees and costs incident to the final disposition of interim matters. See 6 J. Moore, Federal Practice § 54.70 (5) (1974 ed.). Further, the resolution of the fee issue may be a matter of some complexity and require, as here, the taking of evidence and briefing. It would therefore be undesirable to delay the implementation of a desegregation plan in order to resolve the question of fees simultaneously. The District Court properly chose not to address itself to the question of the award until after it had approved the noninterim plan for achievement of the unitary school system in Richmond on April 5, 1971.We are in agreement, however, with the dissenting judge of the Court of Appeals when he observed, 472 F.2d, at 337, that the award made by the District Court for services from March 10, 1970, to January 29, 1971, did not precisely fit 718's requirement that the beneficiary of the fee order be "the prevailing party." In January 1971 the petitioners had not yet "prevailed" and realistically did not do so until April 5. Consequently, any fee award was not appropriately to be made until April 5. Thereafter, it may include services at least through that date. This, of course, will be attended to on remand.Accordingly, we hold that 718 is applicable to the present situation, and that in this case the District Court in its discretion may allow the petitioners reasonable attorneys' fees for services rendered from March 10, 1970, to or beyond April 5, 1971. The judgment of the Court of Appeals is vacated and the case is remanded for further proceedings consistent with this opinion. It is so ordered.MR. JUSTICE MARSHALL and MR. JUSTICE POWELL took no part in the consideration or decision of this case. |
1 | In determining whether a family's income disqualifies it from receiving benefits under the Aid to Families With Dependent Children (AFDC) program of Part A of Title IV of the Social Security Act, the appropriate agency of a participating State is required to "disregard the first $50 of any child support payments" received by the family in any month for which benefits are sought. 42 U.S.C. 602(a)(8)(A)(vi). Under this provision, petitioner Secretary of Health and Human Services has declined to "disregard" the first $50 of "child's insurance benefits" received under Title II of the Act, reasoning that such benefits are not "child support" because that term, as used throughout Title IV, invariably refers to payments from absent parents. The District Court granted summary judgment for respondents, custodial parents receiving AFDC benefits, in their suit challenging the Secretary's interpretation of 602(a)(8) (A)(vi). The Court of Appeals affirmed, reasoning that, since AFDC applicants receiving Title II benefits are burdened by the same eligibility constraints as those receiving payments directly from absent parents, no rational basis exists for according one class of families the mitigating benefit of the disregard while depriving the other of that benefit. The court added that to construe 602(a)(8)(A)(vi) to exclude the Title II benefits from the disregard would raise constitutional equal protection concerns.Held: Title II "child's insurance benefits" do not constitute "child support" within the meaning of 602(a)(8)(A)(vi). The clear and unambiguous language of the statute demonstrates that Congress used "child support" throughout Title IV as a term of art referring exclusively to payments from absent parents. See, e. g., 651, the first provision in Part D of Title IV, which is devoted exclusively to "Child Support and Enforcement of Paternity." Since the statute also makes plain that Congress meant for the Part D program to work in tandem with the Part A AFDC program to provide uniform levels of support for children of equal need, see 602(a)(26), 602(a)(27), 654(5), the phrase "child support" as used in the two Parts must be given the same meaning. See, e. g., Sorenson v. Secretary of Treasury, . Thus, although governmentally funded Title II child's insurance benefits might be characterized as "support" in the generic sense, they are not the sort of child support payments from absent parents envisioned by Title IV. This is the sort of statutory distinction that does not violate the Equal Protection Clause "if any state of facts reasonably may be conceived to justify it," Bowen v. Gilliard, , and it is justified by Congress' intent to encourage the making of child support payments by absent parents. Pp. 481-485. 870 F.2d 969, reversed.REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 485. STEVENS, J., filed a dissenting opinion, post, p. 496.Clifford M. Sloan argued the cause for petitioner. With him on the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Merrill, and Robert D. Kamenshine. Mary Sue Terry, Attorney General of Virginia, R. Claire Guthrie, Deputy Attorney General, John A. Rupp, Senior Assistant Attorney General, and Thomas J. Czelusta, Assistant Attorney General, filed a brief for Larry D. Jackson as respondent under this Court's Rule 12.4, in support of petitioner.Jamie B. Aliperti argued the cause for respondents. With her on the brief for respondents Elizabeth Stroop et al. was Claire E. Curry.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In this case we review a determination by petitioner, the Secretary of Health and Human Services, that "child's insurance benefits" paid pursuant to Title II of the Social Security Act, see 49 Stat. 623, as amended, 42 U.S.C. 402(d) (1982 ed. and Supp. V), do not constitute "child support" as that term is used in a provision in Title IV of the Act governing eligibility for Aid to Families With Dependent Children (AFDC). See 42 U.S.C. 602(a)(8)(A)(vi) (1982 ed., Supp. V). We uphold the Secretary's determination and reverse the contrary holding of the United States Court of Appeals for the Fourth Circuit.Title IV requires the applicable agencies of States participating in the AFDC program to consider "other income and resources of any child or relative claiming" AFDC benefits "in determining need" for benefits. 602(a)(7)(A). The state agencies "shall determine ineligible for aid any family the combined value of whose resources ... exceeds" the level specified in the Act. 602(a)(7)(B). Central to this case is one of the amendments to Title IV in the Deficit Reduction Act of 1984 (DEFRA), Pub. L. 98-369, 2640, 98 Stat. 1145-1146, affecting eligibility for AFDC benefits. This amendment provides:"... [W]ith respect to any month, in making the determination under [ 602(a)(7)], the State agency - ... . . "shall disregard the first $50 of any child support payments received in such month with respect to the dependent child or children in any family applying for or receiving aid to families with dependent children (including support payments collected and paid to the family under section 657(b) of this title)... ." 42 U.S.C. 602(a) (8)(A)(vi) (1982 ed., Supp. V) (emphasis added). The Secretary has declined to "disregard" under this provision the first $50 of Title II Social Security child's insurance benefits paid on behalf of children who are members of families applying for AFDC benefits. In the Secretary's view, the Government-funded child's insurance benefits are not "child support" for purposes of 602(a)(8)(A)(vi) because that term, as used throughout Title IV, "invariably refers to payments from absent parents." Brief for Petitioner 13.Respondents are custodial parents receiving AFDC benefits who are aggrieved by the implementation of the DEFRA amendments. They sued in the United States District Court for the Eastern District of Virginia challenging petitioner's interpretation of the disregard on statutory and constitutional grounds. See Complaint, App. 31-33. The District Court granted summary judgment for respondents on the basis of their statutory challenge and thereby avoided reaching the constitutional challenge. App. to Pet. for Cert. 22a.The United States Court of Appeals for the Fourth Circuit affirmed the District Court. Stroop v. Bowen, 870 F.2d 969, 975 (1989). According to the Court of Appeals, Congress nowhere explicated its use of the term "child support" in 602(a)(8)(A)(vi) and the only known discussion of the purpose of the disregard provision is in our decision in Bowen v. Gilliard, . As read by the Court of Appeals, Bowen noted that "the disregard of the first $50 paid by a father serves to mitigate the burden of the changes wrought by the DEFRA amendments." 870 F.2d, at 974 (citing 483 U.S., at 594). The court reasoned that although we had not considered the question of Title II child's insurance payments in Bowen, the disregarding of the first $50 of such payments, "received in lieu of payments made by a father," would serve the same purpose of mitigating the harshness of the DEFRA amendments. 870 F.2d, at 974. Since AFDC applicants receiving Title II child's insurance benefits are burdened by the DEFRA amendments no less than applicants receiving payments directly from noncustodial parents, no rational basis exists for according one class of families the mitigating benefit of the disregard while depriving another indistinguishable class of families of the same benefit. The court thus rejected the Secretary's interpretation of the disregard and added that to construe 602(a)(8)(A)(vi) to exclude the Title II benefits from the disregard would raise constitutional equal protection concerns. Id., at 975. We granted certiorari, , to resolve the conflict between the decision of the Fourth Circuit and the contrary holding of the Court of Appeals for the Eighth Circuit in Todd v. Norman, 840 F.2d 608 (1988).We think the Secretary's construction is amply supported by the text of the statute which shows that Congress used "child support" throughout Title IV of the Social Security Act and its amendments as a term of art referring exclusively to payments from absent parents. This being the case, we need go no further:"`If the statute is clear and unambiguous "that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." ... In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.'" K mart Corp. v. Cartier, Inc., (internal citations omitted). As an initial matter, the common usage of "child support" refers to legally compulsory payments made by parents. Black's Law Dictionary 217 (5th ed. 1979) defines "child support" as"[t]he legal obligation of parents to contribute to the economic maintenance, including education, of their children; enforceable in both civil and criminal contexts. In a dissolution or custody action, money paid by one parent to another toward the expenses of children of the marriage." Attorneys who have practiced in the area of domestic relations law will immediately recognize this definition. Respondents insist, however, that we have traditionally "turned to authorities of general reference, not to legal dictionaries, to [give] `ordinary meaning to ordinary words.'" Brief for Respondents 20 (citing Sullivan v. Everhart, ). But the general reference work upon which respondents principally rely defines "child support" as "money paid for the care of one's minor child, esp[ecially] payments to a divorced spouse or a guardian under a decree of divorce." Random House Dictionary of the English Language 358 (2d ed. 1987) (emphasis added) (cited at Brief for Respondents 20). Respondents also seek to bolster their view with definitions of the word "support" from other dictionaries. Ibid. But where a phrase in a statute appears to have become a term of art, as is the case with "child support" in Title IV, any attempt to break down the term into its constituent words is not apt to illuminate its meaning.Congress' use of "child support" throughout Title IV shows no intent to depart from common usage. As previously noted, the provisions governing eligibility for AFDC benefits, including the "disregard" provision in issue here, are contained in Title IV of the Social Security Act. 42 U.S.C. 601-679a (1982 ed. and Supp. V). Title IV, as its heading discloses, establishes a unified program of grants "For Aid and Services to Needy Families With Children and For Child-Welfare Services" to be implemented through cooperative efforts of the States and the Federal Government. Part D of Title IV is devoted exclusively to "Child Support and Establishment of Paternity." See 651-667. The first provision in Part D authorizes appropriations "[f]or the purpose of enforcing the support obligations owed by absent parents to their children and the spouse (or former spouse) with whom such children are living, [and] locating absent parents ..." 42 U.S.C. 651 (1982 ed., Supp. V) (emphasis added). The remainder of Part D, 42 U.S.C. 652-667 (1982 ed. and Supp. V), abounds with references to "child support" in the context of compulsory support funds from absent parents. See, e. g., 652(a)(1), 652(a)(7), 652(a)(10)(B), 652(a)(10)(C), 652(b), 653(c)(1), 654, 654(6), 654(19)(A), 654(19)(B), 656(b), 657(a), 659(a), 659(b), 659(d), 661(b)(3), 662(b). Section 653, indeed, creates an absent parent "Locator Service."The statute also makes plain that Congress meant for the Part D Child Support program to work in tandem with the AFDC program which constitutes Part A of Title IV, 601-615. Section 602(a)(27) requires state plans for AFDC participation to "provide that the State has in effect a plan approved under part D ... and operates a child support program in substantial compliance with such plan." Section 602(a)(26) requires State AFDC plans to"provide that, as a condition of eligibility for [AFDC benefits], each applicant or recipient will be required - "(A) to assign the State any rights to support from any other person such applicant may have (i) in his own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid, ... [and] "(B) to cooperate with the State ... (ii) in obtaining support payments for such applicant and for a child with respect to whom such aid is claimed ... ." Part D, in turn, requires state plans implementing Title IV Child Support programs to"provide that (A) in any case in which support payments are collected for an individual with respect to whom an assignment under section 602(a)(26) [in Part A] of this title is effective, such payments shall be made to the State for distribution pursuant to section 657 [in Part D] of this title ... ." 654(5). These cross-references illustrate Congress' intent that the AFDC and Child Support programs operate together closely to provide uniform levels of support for children of equal need. That intent leads to the further conclusion that Congress used the term "child support" in 602(a)(8)(A)(vi), and in Part A generally, in the limited sense given the term by its repeated use in Part D. The substantial relation between the two programs presents a classic case for application of the "normal rule of statutory construction that `"identical words used in different parts of the same act are intended to have the same meaning."'" Sorenson v. Secretary of Treasury, (quoting Helvering v. Stockholms Enskilda Bank, (in turn quoting Atlantic Cleaners & Dyers, Inc. v. United States, )). Since the Secretary's interpretation of the 602(a)(8)(A) (vi) disregard incorporates the definition of "child support" that we find plain on the face of the statute, our statutory inquiry is at an end. The disregard, accordingly, does not admit of the interpretation advanced by respondents and accepted by both courts below. Though Title II child's insurance benefits might be characterized as "support" in the generic sense, they are not the sort of child support payments from absent parents envisioned in the Title IV scheme. The Title II payments are explicitly characterized in 402(d) as "insurance" benefits and are paid out of the public treasury to all applicants meeting the statutory criteria. Thus no portion of any 402(d) payments may be disregarded under 602(a)(8)(A)(vi).The Court of Appeals construed the statute the way it did in part because it felt the construction we adopt would raise a serious doubt as to its constitutionality. App. to Pet. for Cert. 12a. We do not share that doubt. We agree with the Secretary that Congress' desire to encourage the making of child support payments by absent parents, see, e. g., 42 U.S.C. 602(a)(26)(B)(ii) and 654(5) (1982 ed., Supp. V) (requiring AFDC recipients to assist in the collection of child support payments for distribution by the States under Part D)), affords a rational basis for applying the disregard to payments from absent parents, but not to Title II insurance payments which are funded by the Government. This sort of statutory distinction does not violate the Equal Protection Clause "if any state of facts reasonably may be conceived to justify it." Bowen v. Gilliard, 483 U.S., at 601.The judgment of the Court of Appeals is therefore Reversed. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.Today the Court holds that the plain language of a statute applicable by its terms to "any child support payments" compels the conclusion that the statute does not apply to benefits paid to the dependent child of a disabled, retired, or deceased parent for the express purpose of supporting that child. Because I am persuaded that this crabbed interpretation of the statute is neither compelled by its language nor consistent with its purpose, and arbitrarily deprives certain families of a modest but urgently needed welfare benefit, I dissent.II begin, as does the majority, with the plain language of the disregard provision. It refers to "any child support payments received ... with respect to the dependent child or children in any family applying for or receiving aid to families with dependent children (including support payments collected and paid to the family under section 657(b) of this title)."1 42 U.S.C. 602(a)(8)(A)(vi) (1982 ed., Supp. V) (emphasis added). This language does not support the majority's narrow interpretation. The word "any" generally means all forms or types of the thing mentioned. When coupled with the parenthetical phrase "including ...," it indicates that "support payments collected and paid" by the State constitute one type within the larger universe of "child support payments." As the majority recognizes, 602(a)(26)(A) requires all applicants for AFDC to "assign the State any rights to support from any other person ... ." Thus, support payments from absent parents will almost always fall within the parenthetical clause referring to "support payments collected and paid" by the State. The plain words of the disregard provision indicate that such payments are only one of various types of child support payments; limiting the meaning of child support to an absent parent's payments renders the statutory language "any child support payments ... including ..." meaningless.The majority's insistence that the ordinary meaning of the term "child support" excludes Title II payments makes little sense. Title II is a program of mandatory wage deductions, designed to ensure that a worker's dependents will have some income, should the worker retire, die, or become disabled. Califano v. Boles, (Title II "attempts to obviate, through a program of forced savings, the economic dislocations that may otherwise accompany old age, disability, or the death of a breadwinner"). Thus, the worker is legally compelled to set aside a portion of his wages in order to earn benefits used to support his dependent children in the event he becomes unable to do so himself. A child is entitled to Title II payments only if he or she lived with, or received financial support from, the insured worker - that is, only if the relationship between the child and the insured worker would (or did) give rise to a legally enforceable support obligation. 42 U.S.C. 402(d) (1982 ed. and Supp. V). The sole and express purpose of Title II children's benefits is to support dependent children. Jimenez v. Weinberger, ("[T]he primary purpose of the ... Social Security scheme is to provide support for dependents of a disabled wage earner"); Mathews v. Lucas, ("[T]he Secretary explains the design of the statutory scheme ... as a program to provide for all children of deceased [or disabled] insureds who can demonstrate their `need' in terms of dependency"); see also Mathews v. De Castro, , and n. 6 (1976). It is unlawful to use Title II payments for any other purpose. 42 U.S.C. 408(e) (1982 ed.).2 How are Title II payments different from court-ordered payments by an absent parent? Their source is the same: a parent's wages or assets.3 Their purpose is the same: to provide for the needs of a dependent child, in lieu of the support of a working parent living in the home. The majority does not even attempt to explain why the common usage and understanding of the term "child support" would include all the types of payments the Secretary says the disregard provision covers - legally compulsory payments from absent parents, voluntary payments,4 and even spousal support payments5 - but would exclude Title II payments.Nonetheless, the majority insists that Title II payments do not constitute "child support." The majority points to the use of the term "child support" in Part D of Title IV to refer to court-ordered support payments by absent parents. This begs the question. Naturally, Congress was referring to compulsory support payments in Part D, because that part of the statute is concerned with "enforcing the support obligations owed by absent parents to their children." 42 U.S.C. 651 (1982 ed., Supp. V). Other types of child support, such as payments voluntarily made by absent parents, or payments made by the Government on behalf of dead, disabled, or retired parents, do not involve the same problems of enforcement.6 Nowhere in Part D did Congress actually define "child support," nor does Part D or any other provision of Title IV indicate that Congress thought the term "child support" referred only to compulsory payments or only to payments made directly by the absent parent.The majority relies on the maxim of statutory construction that identical words in two related statutes, or in different parts of the same statute, are intended to have the same meaning. Ante, at 484. Like all such maxims, however, this is merely a general assumption, and is not always valid or applicable. In Erlenbaugh v. United States, , for example, the Court declined to follow this maxim, because it was invoked not simply to resolve any ambiguities or doubts in the statutory language, but, as in this case, "to introduce an exception to the coverage of the [statute] where none is now apparent." Id., at 245. The Court commented: "This might be a sensible construction of the two statutes if they were intended to serve the same function, but plainly they were not." Ibid. It went on to explain that the two statutes had different purposes, and the reason for the limited scope of one was absent in the context of the other. Id., at 245-247. See also District of Columbia v. Carter, ("At first glance, it might seem logical simply to assume ... that identical words used in two related statutes were intended to have the same effect. Nevertheless ... the meaning well may vary to meet the purposes of the law") (internal quotation marks omitted); Helvering v. Stockholms Enskilda Bank, ("[S]ince most words admit of different shades of meaning, susceptible of being expanded or abridged to conform to the sense in which they are used, the presumption readily yields [when] the words, though in the same act, are found in ... dissimilar connections"). This Court's articulation of the limits of the maxim in Atlantic Cleaners & Dyers, Inc. v. United States, , bears repeating, for it remains true today:"But the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent ... . [T]he meaning well may vary to meet the purposes of the law, to be arrived at by a consideration of the language in which those purposes are expressed, and of the circumstances under which the language was employed... . "It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance." Id., at 433. I conclude that the plain language of the statute does not unequivocally support the Secretary's interpretation. It is equally consistent with the opposite conclusion that Title II payments fall within the broad, inclusive phrase "any child support payments." It is therefore proper to turn to the purpose and history of the disregard provision for aid in construing that provision.IIThe majority, in its conservatively restrictive approach, makes only passing reference to the hardship brought about by the DEFRA amendments. A closer look at the effect of these amendments is necessary to understand the function of the disregard provision. DEFRA changed the AFDC statutes in two ways relevant here. First, it established the "mandatory filing unit" requirement that a family's application for AFDC benefits must take into account any income received by any member of the family, including all children living in the same household. 42 U.S.C. 602(a)(38) (1982 ed., Supp. V). See Bowen v. Gilliard, .Under prior law, parents could choose to exclude from their AFDC applications children who received income from other sources. This exclusion, in some circumstances, was advantageous to the family; although the family then would not receive AFDC funds for the excluded child, that child's income would not be considered in determining its overall AFDC eligibility. Thus, in situations where a child's separate income was greater than the incremental amount of AFDC benefits the family would receive for that child, the family was better off not counting the child in its AFDC application.Along with the new requirement, however, Congress enacted the provision at issue here. The Court in Gilliard explained: "Because the 1984 amendments forced families to include in the filing unit children for whom support payments were being received, the practical effect was that many families' total income was reduced. The burden of the change was mitigated somewhat by a separate amendment providing that the first $50 of child support collected by the State must be remitted to the family and not counted as income for the purpose of determining its benefit level." Id., at 594.7 The legislative history of the DEFRA amendments supports the conclusion that the disregard provision was intended to mitigate the harsh effects of the amendments. The mandatory filing-unit provision was first proposed by the Secretary in 1982, but it was dropped in Conference because of opposition in the House. See H. R. Conf. Rep. No. 97-760, p. 446 (1982). In 1983, the Secretary again proposed this provision, and it was approved by the Senate. S. Rep. No. 98-300, p. 165 (1983). Again, there was opposition in the House, and consideration of the provision was carried over to the next session. House Committee on Ways and Means, Description of the Administration's Fiscal Year 1985 Budget, Comm. Print No. 98-24, pp. 25, 29-30 (1984). In 1984, the provision was added by the Senate amendments to H. R. 4170, the bill that became the Deficit Reduction Act of 1984 (DEFRA). The Report of the House-Senate Conference Committee explains:"The conference agreement follows the Senate amendment with the following modification: a monthly disregard of $50 of child support received by a family is established." H. R. Conf. Rep. No. 98-861, p. 1407 (1984). Neither the House bill nor the Senate bill had contained a disregard provision prior to the Conference, nor is there any discussion in the legislative history of such a provision. The only plausible explanation for its sudden appearance is that it was meant to assuage the concerns of some Members of Congress about the harsh impact of the DEFRA amendments and thus to facilitate the passage of the mandatory filing-unit requirement.The burden of the DEFRA amendments falls equally on families with children receiving Title II benefits and on those with children receiving court-ordered support payments. The mitigating purpose of the disregard provision therefore applies equally to both categories of families. The purpose and history of the disregard provision support the Court of Appeals' interpretation of that provision and resolve any ambiguity as to the meaning of the statutory words "any child support payments."Since the Secretary's interpretation of the disregard rule is not compelled by the language of the statute and is not supported by its purpose and legislative history, it is not entitled to deference and should be rejected by this Court. See NLRB v. Food & Commercial Workers, ("On a pure question of statutory construction, our first job is to try to determine congressional intent, using `traditional tools of statutory construction.' If we can do so, then that interpretation must be given effect, and the regulations at issue must be fully consistent with it"); Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., , n. 9 (1984) ("The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent ... . If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect").IIIEven if the meaning of "child support" in the disregard provision were ambiguous, however, the Secretary's interpretation should still be rejected because it is so arbitrary as not to reflect a "permissible construction of the statute." Id., at 843. The Secretary's position is that the disregard applies to legally compulsory child support payments, voluntary child support payments, and spousal support payments by absent parents, but not to Title II payments. See nn. 4 and 5, supra.Consider, for example, a family consisting of a mother and three children. One of the children is of a prior marriage and receives support from her absent father. The father voluntarily sets aside a portion of his wages every month and sends them to the mother for the child's support. The disregard provision applies. See n. 4, supra. Then the father retires and stops his voluntary contributions, but the child now receives Title II benefits each month. The disregard provision, according to the Secretary, does not apply. But then the mother obtains a court order obligating the father to make child support payments each month, and he does so. The disregard provision applies. Then the father asks the court to amend the support order, so that the Title II benefits are used to satisfy his support obligation. See n. 2, supra. The disregard provision, according to the Secretary, does not apply.Throughout this example, the child's and her family's financial needs remain the same. The impact of the mandatory filing-unit requirement, forcing the family to count the child's income in its AFDC application and thus reducing the level of its benefits, remains the same. The source of the child's income - her father's earnings - and the purpose of that income - to fulfill his duty to provide for the needs of his dependent child - remain the same. But the applicability of the disregard provision changes with the vagaries of the Secretary's regulations.The Secretary argues that his interpretation of the disregard provision is rational because the disregard serves as an incentive for absent parents to make support payments and for custodial parents to cooperate in enforcement efforts (since $50 of those payments directly benefits the family and does not merely reimburse the State for AFDC). But there is simply no indication that Congress intended to limit the applicability of the disregard provision to situations in which it would serve as an incentive. There is no mention of such a purpose in the legislative history of the provision; moreover, the Secretary points to no discussion of the need for such an incentive anywhere in the legislative history of the DEFRA amendments.8 Even if the disregard rule were intended to serve as an incentive, that does not justify applying the disregard to all court-ordered support payments, but not to Title II benefits. Not all court-ordered support payments depend on the voluntary compliance of the absent parent; some are deducted directly from the absent parent's wages - just like Title II deductions. See n. 3, supra. Also, insofar as the disregard serves as an incentive for the custodial parent to help collect support payments, that purpose applies to Title II benefits as well as to court-ordered support payments. To qualify for Title II benefits, the custodial parent, on behalf of the child, must complete an application and, if necessary, establish paternity. If the disregard does not apply to Title II benefits, so that they serve only to reduce a family's AFDC eligibility, the custodial parent has no financial incentive to apply for them.Thus, I believe that the Secretary cannot provide any rational explanation for his view that the disregard provision does not apply to Title II payments. Even assuming that the provision is ambiguous and that Chevron deference is to be considered, I cannot in good conscience defer to an administrative interpretation that results in an arbitrary and irrational reduction of welfare benefits to certain needy families. I view with regret the Court's acquiescence in an administrative effort to cut the costs of the AFDC program by any means that are available.I dissent. |
0 | In connection with a labor dispute, a Tennessee county chancery court issued an injunction which, inter alia, barred inflicting harm or damage to respondent company's employees. About a month later, a shot was fired from a car at the house of one of respondent's nonstriking employees. A deputy sheriff, presumably informed of the crime but without a description of the car or further details, pursued a suspicious car which raced away but was ultimately stopped by policemen, who arrested petitioners, the car's occupants, apparently for reckless driving. The deputy sheriff arrived, and he and the policemen noted a fresh bullet hole in the car. They took petitioners to jail, and the policemen parked the car on the street outside, apparently as a convenience to the car's owner. The deputy sheriff and several policemen made a warrantless search of the car and found an air rifle under the front seat. Over petitioners' objection evidence about the gun was admitted at their trial before the chancellor for criminal contempt for violating the injunction. Petitioners were found guilty and given the maximum sentence of 10 days in jail and a $50 fine. The State Supreme Court affirmed, rejecting petitioners' contentions that the convictions violated their constitutional rights because a jury trial was denied and because evidence concerning the gun, which they claimed had been illegally seized, had been admitted. Held: 1. In the light of the maximum sentence which the Tennessee statutes allowed, the criminal contempt for which petitioners were convicted was a "petty offense," to which the federal constitutional right of a jury trial does not extend. Pp. 219-220. 2. The evidence in the record is insufficient to justify the conclusion that the officers before they began their warrantless search of the car had "reasonable or probable cause" to believe that they would find an instrumentality of a crime or evidence pertaining to a crime. The applicability of Brinegar v. United States, , to a warrantless search of a parked automobile upon probable cause therefore need not be decided, and petitioners' claim must be sustained that the gun was illegally seized and evidence concerning it should not have been admitted at their trial. Pp. 220-222. 219 Tenn. 472, 410 S. W. 2d 881, reversed and remanded.Michael H. Gottesman argued the cause for petitioners. With him on the briefs were Bernard Kleiman, Elliot Bredhoff, George H. Cohen, George Longshore, and Tom J. Taylor.Allen H. Carter argued the cause for respondent. With him on the brief were Foster D. Arnett and S. Randolph Ayres.MR. JUSTICE WHITE delivered the opinion of the Court.Petitioners, Wayne Dyke, Ed McKinney, and John Blackwell, were found guilty of criminal contempt by the Chancery Court of McMinn County, Tennessee. All three were given the maximum sentence authorized by statute, 10 days in jail and a $50 fine.1 The Tennessee Supreme Court affirmed,2 rejecting contentions that the convictions violated the Federal Constitution because a jury trial was denied3 and because testimony concerning a gun, allegedly discovered during an unconstitutional search, was admitted at trial. Petitioners raised both challenges in their petition for a writ of certiorari, and we granted the writ. .In connection with a labor dispute, McMinn County Chancery Court issued, on January 24, 1966, an injunction against, inter alia,"inflicting harm or damage upon the persons or property of [respondent Taylor Implement Company's] employees, customers, visitors or any other persons." On the night of February 25, 1966, a car was seen to drive past the home of Lloyd Duckett, a nonstriking Taylor Implement employee who lived in Monroe County, which adjoins McMinn. Shots were fired from the car at or into the Duckett home. Robert Wayne Ellis, Duckett's son-in-law, was standing in the front yard with another son-in-law, Dale Harris; Ellis fired back at the car with a pistol, and thought his first shot hit the back of the car. Ellis informed Monroe County Sheriff Howard Kirkpatrick by telephone, and soon after, Monroe Deputy Sheriff Loyd Powers, contacted by Kirkpatrick on his radio and presumably told of the crime, spotted a suspicious car and began following it. The car raced away but was stopped by Athens, Tennessee, policemen, notified by Powers of a speeding car heading for Athens. When Powers reached the stopped car, which contained the three petitioners, he and the Athens policemen took them to McMinn County jail,4 and parked their car outside the jail. While petitioners were waiting inside the jail, Powers and several Athens policemen searched the car. Under the front seat they found an air rifle. At trial there was testimony that Ellis and Harris had recognized the car from which shots were fired as a two-tone 1960 or 1961 Dodge, that Ellis thought he hit the back of the Dodge with one shot, that the car stopped in Athens was a 1960 Dodge with a fresh bullet hole through the trunk lid, that an air rifle pellet was found the next day outside the Duckett home, and that an air rifle was found under the car's seat.5 The chancellor noted that the case against petitioners was "premised entirely upon circumstantial evidence" but that nonetheless he had "no trouble at all with the proof which I have heard and I have weighed it in its severest form, that the charges made must be proven beyond a reasonable doubt." The three petitioners were found guilty.Petitioners' first claim is that the Fourteenth Amendment was violated when their request for trial by jury was denied. We have held today, in Duncan v. Louisiana, ante, p. 145, that the Fourteenth Amendment imposes upon the States the requirement of Article III and the Sixth Amendment that jury trials be available to criminal defendants. We have also held, in Bloom v. Illinois, ante, p. 194, that prosecutions for criminal contempt are within the constitutional guarantee. The Bloom and Duncan cases, however, have reaffirmed the view that the guarantee of jury trial does not extend to petty crimes. As Bloom makes clear, supra, at 195-200, criminal contempt has always been thought not to be a crime of the sort that requires a jury trial regardless of the penalty authorized. Alleged criminal contemnors must be given a jury trial, therefore, unless the legislature has authorized a maximum penalty within the "petty offense" limit or, if the legislature has made no judgment about the maximum penalty that can be imposed, unless the penalty actually imposed is within that limit. This Court has not had occasion to state precisely where the line falls between punishments that can be considered "petty" and those that cannot be. From Cheff v. Schnackenberg, , it is clear that a six-month sentence is short enough to be "petty." That holding is sufficient for resolution of this case. Here the maximum penalty which Tennessee statutes permitted the chancellor to impose was 10 days in jail and a fine of $50. The contempt was therefore a "petty offense," and petitioners had no federal constitutional right to a jury trial.Petitioners next contend that admission at trial, over timely objection, of evidence concerning the discovery of an air rifle under the seat of the car in which they were riding when arrested violated the Fourth and Fourteenth Amendments. The State concedes that the search was without a warrant, but asserts that it was not in violation of the Constitution because "reasonable." While the record is not entirely clear, petitioners appear to have been arrested for reckless driving. Whether or not a car may constitutionally be searched "incident" to arrest for a traffic offense, the search here did not take place until petitioners were in custody inside the courthouse and the car was parked on the street outside. Preston v. United States, , holds that under such circumstances a search is "too remote in time or place to [be] incidental to the arrest ... ." 376 U.S., at 368.The search in question here is not saved by Cooper v. California, , which upheld a warrantless search of a car impounded "as evidence" pursuant to a state statute. The police there were required to seize the car and to keep it until forfeiture proceedings could be completed. In those circumstances, said the Court, "[i]t would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it." 386 U.S., at 61-62. In the instant case there is no indication that the police had purported to impound or to hold the car, that they were authorized by any state law to do so, or that their search of the car was intended to implement the purposes of such custody. Here the police seem to have parked the car near the courthouse merely as a convenience to the owner, and to have been willing for some friend or relative of McKinney (or McKinney himself if he were soon released from custody) to drive it away. The reasons that made the warrantless search in Cooper reasonable thus do not apply to the search here. The Court discussed in Cooper, 386 U.S., at 61, the reasons why that case was distinguishable from Preston. The case before us is like Preston and unlike Cooper according to each of the distinguishing tests set forth in the Cooper opinion.Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v. United States, ; Carroll v. United States, . The cases so holding have, however, always insisted that the officers conducting the search have "reasonable or probable cause" to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. The record before us does not contain evidence that Sheriff Kirkpatrick, Deputy Sheriff Powers, or the officers who assisted in the search had reasonable or probable cause to believe that evidence would be found in petitioners' car. Powers had not been told that Harris and Ellis had identified the car from which shots were fired as a 1960 or 1961 Dodge. He testified:"All I got is just that it would be an old make model car. Kinda old make model car." The record also contains no suggestion that Ellis told Sheriff Kirkpatrick, Deputy Sheriff Powers, or any other law enforcement official that he had fired at the Dodge or that he thought he had hit it with one bullet. As far as this record shows, Powers knew only that the car he chased was "an old make model car," that it speeded up when he chased it, and that it contained a fresh bullet hole. The evidence placed upon the record is insufficient to justify a conclusion that McKinney's car was searched with "reasonable or probable cause" to believe the search would be fruitful.Since the search was not shown to have been based upon sufficient cause, we need not reach the question whether Carroll and Brinegar, supra, extend to a warrantless search, based upon probable cause, of an automobile which, having been stopped originally on a highway, is parked outside a courthouse.Because evidence was admitted without a satisfactory showing that it was obtained in compliance with the Fourth and Fourteenth Amendments, the judgment below is reversed and the case is remanded to the Tennessee Supreme Court for disposition not inconsistent with this opinion. Reversed and remanded. |
6 | Per Curiam. State courts rather than federal courts are most frequently called upon to apply the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., including the Act's national policy favoring arbitration. It is a matter of great importance, therefore, that state supreme courts adhere to a correct interpretation of the legislation. Here, the Oklahoma Supreme Court failed to do so. By declaring the noncompetition agreements in two employment contracts null and void, rather than leaving that determination to the arbitrator in the first instance, the state court ignored a basic tenet of the Act's substantive arbitration law. The decision must be vacated.* * * This dispute arises from a contract between petitioner Nitro-Lift Technologies, L. L. C., and two of its former employees. Nitro-Lift contracts with operators of oil and gas wells to provide services that enhance production. Respondents Eddie Lee Howard and Shane D. Schneider entered a confidentiality and noncompetition agreement with Nitro-Lift that contained the following arbitration clause:" 'Any dispute, difference or unresolved question between Nitro-Lift and the Employee (collectively the "Disputing Parties") shall be settled by arbitration by a single arbitrator mutually agreeable to the Disputing Parties in an arbitration proceeding conducted in Houston, Texas in accordance with the rules existing at the date hereof of the American Arbitration Association.' " Pet. for Cert. 5.After working for Nitro-Lift on wells in Oklahoma, Texas, and Arkansas, respondents quit and began working for one of Nitro-Lift's competitors. Claiming that respondents had breached their noncompetition agreements, Nitro-Lift served them with a demand for arbitration. Respondents then filed suit in the District Court of Johnston County, Oklahoma, asking the court to declare the noncompetition agreements null and void and to enjoin their enforcement. The court dismissed the complaint, finding that the contracts contained valid arbitration clauses under which an arbitrator, and not the court, must settle the parties' disagreement. The Oklahoma Supreme Court retained respondents' appeal and ordered the parties to show cause why the matter should not be resolved by application of Okla. Stat., Tit. 15, §219A (West 2011), which limits the enforceability of noncompetition agreements. Nitro-Lift argued that any dispute as to the contracts' enforceability was a question for the arbitrator. It relied for support-as it had done before the trial court — upon several of this Court's cases interpreting the FAA, and noted that under Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 446 (2006), "this arbitration law applies in both state and federal courts." Record in No. 109,003 (Okla.), p. 273. The Oklahoma Supreme Court was not persuaded. It held that despite the "[U. S.] Supreme Court cases on which the employers rely," the "existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement." 2011 OK 98, ¶15, n. 20, ¶16, 273 P. 3d 20, 26, n. 20, 27. For that proposition, the court relied on the "exhaustive overview of the United States Supreme Court decisions construing the Federal Arbitration Act" in Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P. 3d 16, which found Supreme Court jurisprudence "not to inhibit our review of the underlying contract's validity." 273 P. 3d, at 26. Finding the arbitration clauses no obstacle to its review, the court held that the noncompetition agreements were "void and unenforceable as against Oklahoma's public policy," expressed in Okla. Stat., Tit. 15, §219A. 273 P. 3d, at 27. The Oklahoma Supreme Court declared that its decision rests on adequate and independent state grounds. Id., at 23-24, n. 5. If that were so, we would have no jurisdiction over this case. See Michigan v. Long, 463 U. S. 1032, 1037-1044 (1983). It is not so, however, because the court's reliance on Oklahoma law was not "independent"--it necessarily depended upon a rejection of the federal claim, which was both " 'properly presented to' " and " 'addressed by' " the state court. Howell v. Mississippi, 543 U. S. 440, 443 (2005) (per curiam) (quoting Adams v. Robertson, 520 U. S. 83, 86 (1997) (per curiam)). Nitro-Lift claimed that the arbitrator should decide the contract's validity, and raised a federal-law basis for that claim by relying on Supreme Court cases construing the FAA. " '[A] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief . . . by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds . . . .' " Howell, supra, at 444 (quoting Baldwin v. Reese, 541 U. S. 27, 32 (2004); emphasis added). The Oklahoma Supreme Court acknowledged the cases on which Nitro-Lift relied, as well as their relevant holdings, but chose to discount these controlling decisions. Its conclusion that, despite this Court's jurisprudence, the underlying contract's validity is purely a matter of state law for state-court deter-mination is all the more reason for this Court to assert jurisdiction. The Oklahoma Supreme Court's decision disregards this Court's precedents on the FAA. That Act, which "declare[s] a national policy favoring arbitration," Southland Corp. v. Keating, 465 U. S. 1, 10 (1984), provides that a "written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. §2. It is well settled that "the substantive law the Act created [is] applicable in state and federal courts." Southland Corp., supra, at 12; see also Buckeye, supra, at 446. And when parties commit to arbitrate contractual disputes, it is a mainstay of the Act's substantive law that attacks on the validity of the contract, as distinct from attacks on the validity of the arbitration clause itself, are to be resolved "by the arbitrator in the first instance, not by a federal or state court." Preston v. Ferrer, 552 U. S. 346, 349 (2008); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967). For these purposes, an "arbitration provision is severable from the remainder of the contract," Buckeye, supra, at 445, and its validity is subject to initial court determination; but the validity of the remainder of the contract (if the arbitration provision is valid) is for the arbitrator to decide. This principle requires that the decision below be va-cated. The trial court found that the contract contained a valid arbitration clause, and the Oklahoma Supreme Court did not hold otherwise. It nonetheless assumed the arbitrator's role by declaring the noncompetition agreements null and void. The state court insisted that its "[own] jurisprudence controls this issue" and permits review of a "contract submitted to arbitration where one party assert[s] that the underlying agreement [is] void and unenforceable." 273 P. 3d, at 26. But the Oklahoma Supreme Court must abide by the FAA, which is "the supreme Law of the Land," U. S. Const., Art. VI, cl. 2, and by the opinions of this Court interpreting that law. "It is this Court's responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law." Rivers v. Roadway Express, Inc., 511 U. S. 298, 312 (1994). Our cases hold that the FAA forecloses precisely this type of "judicial hostility towards arbitration." AT&T Mobility LLC v. Concepcion, 563 U. S. ___, ___ (2011) (slip op., at 8). The state court reasoned that Oklahoma's statute "addressing the validity of covenants not to compete, must govern over the more general statute favoring arbitration." 273 P. 3d, at 26, n. 21. But the ancient interpretive principle that the specific governs the general (generalia specialibus non derogant) applies only to conflict between laws of equivalent dignity. Where a specific statute, for example, conflicts with a general constitutional provision, the latter governs. And the same is true where a specific state statute conflicts with a general federal statute. There is no general-specific exception to the Supremacy Clause, U. S. Const. Art. VI, cl. 2. " '[W]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.' " Marmet Health Care Center, Inc. v. Brown, 565 U. S. ___, ___-___ (2012) (per curiam) (slip op., at 3-4) (quoting AT&T Mobility LLC, supra, at ___-___ (slip op., at 6-7)). Hence, it is for the arbitrator to decide in the first instance whether the covenants not to compete are valid as a matter of applicable state law. See Buckeye, 546 U. S., at 445-446. For the foregoing reasons, the petition for certiorari is granted. The judgment of the Supreme Court of Oklahoma is vacated, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered.NITRO-LIFT TECHNOLOGIES, L. L. C. v. EDDIE LEE HOWARD et al.on petition for writ of certiorari to the supreme court of oklahomaNo. 11-1377. Decided November 26, 2012 Per Curiam. State courts rather than federal courts are most frequently called upon to apply the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., including the Act's national policy favoring arbitration. It is a matter of great importance, therefore, that state supreme courts adhere to a correct interpretation of the legislation. Here, the Oklahoma Supreme Court failed to do so. By declaring the noncompetition agreements in two employment contracts null and void, rather than leaving that determination to the arbitrator in the first instance, the state court ignored a basic tenet of the Act's substantive arbitration law. The decision must be vacated.* * * This dispute arises from a contract between petitioner Nitro-Lift Technologies, L. L. C., and two of its former employees. Nitro-Lift contracts with operators of oil and gas wells to provide services that enhance production. Respondents Eddie Lee Howard and Shane D. Schneider entered a confidentiality and noncompetition agreement with Nitro-Lift that contained the following arbitration clause:" 'Any dispute, difference or unresolved question between Nitro-Lift and the Employee (collectively the "Disputing Parties") shall be settled by arbitration by a single arbitrator mutually agreeable to the Disputing Parties in an arbitration proceeding conducted in Houston, Texas in accordance with the rules existing at the date hereof of the American Arbitration Association.' " Pet. for Cert. 5.After working for Nitro-Lift on wells in Oklahoma, Texas, and Arkansas, respondents quit and began working for one of Nitro-Lift's competitors. Claiming that respondents had breached their noncompetition agreements, Nitro-Lift served them with a demand for arbitration. Respondents then filed suit in the District Court of Johnston County, Oklahoma, asking the court to declare the noncompetition agreements null and void and to enjoin their enforcement. The court dismissed the complaint, finding that the contracts contained valid arbitration clauses under which an arbitrator, and not the court, must settle the parties' disagreement. The Oklahoma Supreme Court retained respondents' appeal and ordered the parties to show cause why the matter should not be resolved by application of Okla. Stat., Tit. 15, §219A (West 2011), which limits the enforceability of noncompetition agreements. Nitro-Lift argued that any dispute as to the contracts' enforceability was a question for the arbitrator. It relied for support-as it had done before the trial court — upon several of this Court's cases interpreting the FAA, and noted that under Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 446 (2006), "this arbitration law applies in both state and federal courts." Record in No. 109,003 (Okla.), p. 273. The Oklahoma Supreme Court was not persuaded. It held that despite the "[U. S.] Supreme Court cases on which the employers rely," the "existence of an arbitration agreement in an employment contract does not prohibit judicial review of the underlying agreement." 2011 OK 98, ¶15, n. 20, ¶16, 273 P. 3d 20, 26, n. 20, 27. For that proposition, the court relied on the "exhaustive overview of the United States Supreme Court decisions construing the Federal Arbitration Act" in Bruner v. Timberlane Manor Ltd. Partnership, 2006 OK 90, 155 P. 3d 16, which found Supreme Court jurisprudence "not to inhibit our review of the underlying contract's validity." 273 P. 3d, at 26. Finding the arbitration clauses no obstacle to its review, the court held that the noncompetition agreements were "void and unenforceable as against Oklahoma's public policy," expressed in Okla. Stat., Tit. 15, §219A. 273 P. 3d, at 27. The Oklahoma Supreme Court declared that its decision rests on adequate and independent state grounds. Id., at 23-24, n. 5. If that were so, we would have no jurisdiction over this case. See Michigan v. Long, 463 U. S. 1032, 1037-1044 (1983). It is not so, however, because the court's reliance on Oklahoma law was not "independent"--it necessarily depended upon a rejection of the federal claim, which was both " 'properly presented to' " and " 'addressed by' " the state court. Howell v. Mississippi, 543 U. S. 440, 443 (2005) (per curiam) (quoting Adams v. Robertson, 520 U. S. 83, 86 (1997) (per curiam)). Nitro-Lift claimed that the arbitrator should decide the contract's validity, and raised a federal-law basis for that claim by relying on Supreme Court cases construing the FAA. " '[A] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief . . . by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds . . . .' " Howell, supra, at 444 (quoting Baldwin v. Reese, 541 U. S. 27, 32 (2004); emphasis added). The Oklahoma Supreme Court acknowledged the cases on which Nitro-Lift relied, as well as their relevant holdings, but chose to discount these controlling decisions. Its conclusion that, despite this Court's jurisprudence, the underlying contract's validity is purely a matter of state law for state-court deter-mination is all the more reason for this Court to assert jurisdiction. The Oklahoma Supreme Court's decision disregards this Court's precedents on the FAA. That Act, which "declare[s] a national policy favoring arbitration," Southland Corp. v. Keating, 465 U. S. 1, 10 (1984), provides that a "written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. §2. It is well settled that "the substantive law the Act created [is] applicable in state and federal courts." Southland Corp., supra, at 12; see also Buckeye, supra, at 446. And when parties commit to arbitrate contractual disputes, it is a mainstay of the Act's substantive law that attacks on the validity of the contract, as distinct from attacks on the validity of the arbitration clause itself, are to be resolved "by the arbitrator in the first instance, not by a federal or state court." Preston v. Ferrer, 552 U. S. 346, 349 (2008); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967). For these purposes, an "arbitration provision is severable from the remainder of the contract," Buckeye, supra, at 445, and its validity is subject to initial court determination; but the validity of the remainder of the contract (if the arbitration provision is valid) is for the arbitrator to decide. This principle requires that the decision below be va-cated. The trial court found that the contract contained a valid arbitration clause, and the Oklahoma Supreme Court did not hold otherwise. It nonetheless assumed the arbitrator's role by declaring the noncompetition agreements null and void. The state court insisted that its "[own] jurisprudence controls this issue" and permits review of a "contract submitted to arbitration where one party assert[s] that the underlying agreement [is] void and unenforceable." 273 P. 3d, at 26. But the Oklahoma Supreme Court must abide by the FAA, which is "the supreme Law of the Land," U. S. Const., Art. VI, cl. 2, and by the opinions of this Court interpreting that law. "It is this Court's responsibility to say what a statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law." Rivers v. Roadway Express, Inc., 511 U. S. 298, 312 (1994). Our cases hold that the FAA forecloses precisely this type of "judicial hostility towards arbitration." AT&T Mobility LLC v. Concepcion, 563 U. S. ___, ___ (2011) (slip op., at 8). The state court reasoned that Oklahoma's statute "addressing the validity of covenants not to compete, must govern over the more general statute favoring arbitration." 273 P. 3d, at 26, n. 21. But the ancient interpretive principle that the specific governs the general (generalia specialibus non derogant) applies only to conflict between laws of equivalent dignity. Where a specific statute, for example, conflicts with a general constitutional provision, the latter governs. And the same is true where a specific state statute conflicts with a general federal statute. There is no general-specific exception to the Supremacy Clause, U. S. Const. Art. VI, cl. 2. " '[W]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.' " Marmet Health Care Center, Inc. v. Brown, 565 U. S. ___, ___-___ (2012) (per curiam) (slip op., at 3-4) (quoting AT&T Mobility LLC, supra, at ___-___ (slip op., at 6-7)). Hence, it is for the arbitrator to decide in the first instance whether the covenants not to compete are valid as a matter of applicable state law. See Buckeye, 546 U. S., at 445-446. For the foregoing reasons, the petition for certiorari is granted. The judgment of the Supreme Court of Oklahoma is vacated, and the case is remanded for proceedings not inconsistent with this opinion.It is so ordered. |
7 | Petitioner manufactures in Tennessee products which it sends in trucks to customers in nearly states. Finding that driver-owners carrying those products in Arkansas, who allegedly had leased their vehicles to petitioner, were in reality transporting petitioner's goods as "contract carriers" for which a state Act required a permit, the State Supreme Court dismissed petitioner's bill praying that enforcement of the Act be enjoined. Neither petitioner nor the drivers had obtained any kind of authority from the Interstate Commerce Commission. Held: 1. The finding of the State Supreme Court that the driver-owners were in reality transporting petitioner's goods as contract carriers is not without factual foundation and is accepted by this Court. Pp. 159-160. 2. The State's requirement of a permit in such circumstances is not an undue burden on interstate commerce, and does not conflict with the Commerce Clause of the Federal Constitution nor with the Federal Motor Carrier Act. Pp. 161-162. 3. Buck v. Kuykendall, , distinguished. Pp. 161-162. 4. It is unnecessary here to consider apprehended burdensome conditions which the State has not attempted to enforce. Pp. 162-163. 5. The State is not without power to require interstate motor carriers to identify themselves as users of the State's highways. P. 163. 219 Ark. 553, 244 S. W. 2d 147, affirmed. In an action brought by petitioner in an Arkansas state court to enjoin enforcement of the Arkansas Motor Carrier Act, the State Supreme Court ordered dismissal of the bill. 219 Ark. 553, 244 S. W. 2d 147. This Court granted certiorari. . Affirmed, p. 163. Glenn M. Elliott argued the cause for petitioner. With him on the brief was James W. Wrape.John R. Thompson and Eugene R. Warren submitted on brief for respondents.MR. JUSTICE BLACK delivered the opinion of the Court.The petitioner, Lloyd A. Fry Roofing Company, manufactures asphalt roofing products in Memphis, Tennessee, and sends them in trucks to customers in nearby states. Some of these trucks are driven by their owners who have allegedly leased them to the petitioner. Five of these driver-owners while carrying Fry's interstate shipments on Arkansas highways were arrested for having failed to obtain a permit as required of all contract carriers by 11 of the Arkansas Motor Act.1 Petitioner brought this action in an Arkansas state court to enjoin the state's Public Service Commission from further molestation or prosecution of the drivers. The bill asserted both state and federal grounds for denying that the state law could be applied to require a permit. The state grounds alleged were: Neither petitioner Fry Roofing Company nor the truck drivers could be required to get a state permit, because the state law exempted "private" carriers from that duty, and petitioner was such a "private carrier" - that is, a commercial enterprise, carrying its own products exclusively in its own leased trucks operated by its own bona fide driver-employees. Since, petitioner claimed, the drivers were its bona fide employees, it necessarily followed that they need not get state permits as "contract carriers" because they were not in the business of transporting goods for hire.2 The federal ground asserted by petitioner to prevent application of the state statute was that requiring either Fry or the drivers to get state permits would unduly burden interstate commerce in violation of the United States Constitution and would invade a field of regulation pre-empted by the Federal Motor Carrier Act.3 Answering the bill, the State Commission asked the court to dismiss it, strongly urging that petitioner's alleged lease of trucks and operation of them by its own employees were mere pretenses, a subterfuge to enable petitioner and others to evade and escape the regulatory provisions of the Arkansas Motor Act. After lengthy hearings the trial court found that the arrested drivers were in fact bona fide employees of petitioner, that the truck leases were also bona fide, and that petitioner was therefore transporting its own goods as a private carrier exempt from the state Act. For this reason the court held that the Act did not require either petitioner or its drivers to get a permit. Accordingly the Commission was enjoined as prayed. Reviewing the facts for itself the State Supreme Court found that the arrested truck drivers were not petitioner's employees, that the truck lease arrangements were shams, and that petitioner was therefore a shipper - not a carrier of any kind. In this situation the court found that the driver-owners were in reality transporting petitioner's goods as "contract carriers" for hire, engaged in the very kind of business for which 11 of the state Act required a permit. The court then dismissed the bill and denied a rehearing, thereby rejecting the federal questions raised. 219 Ark. 553, 244 S. W. 2d 147. Certiorari was granted because of the Commerce Clause and Federal Motor Carrier Act questions. .We are urged to set aside the findings of the State Supreme Court before passing upon the constitutional questions presented. Petitioner contends that these findings are without evidential support and that the subsidiary findings do not support the ultimate conclusion that the leases were shams. Whether rejection of these findings would place petitioner's Commerce Clause contentions in a more favorable position, we need not consider. For there is much record evidence, both oral and written, some of which tends to support petitioner's contention of good-faith arrangements and some the contrary. Some details of petitioner's conduct resemble and some details differ from patterns of conduct found by courts in other cases to have been contrived to avoid legal regulation. See, e. g., United States v. La Tuff Transfer Service, 95 F. Supp. 375, and cases there cited. There are no exceptional circumstances of any kind that would justify us in rejecting the Supreme Court's findings; they are not without factual foundation, and we accept them.The finding that the arrested drivers own and operate the trucks for hire makes them contract carriers as defined in the State Act. Section 11 of that Act requires contract carriers to get a permit and outlines certain considerations the State Commission may weigh in granting or refusing the permit. Among these matters is the adequacy of transportation services already being performed by "any railroad, street railway or motor carrier." Refusal of a state certificate based on such grounds was held to be an unconstitutional obstruction of interstate commerce in Buck v. Kuykendall, . To deny these interstate carriers an Arkansas permit for such reasons would conflict with the Buck holding.Unlike the situation in the Buck case, Arkansas has not refused to grant a permit for interstate carriage of goods on state highways. It has asked these driver-owners to do nothing except apply for a permit as contract carriers are required to do by the State Act. And the State Commission here expressly disclaims any "discretionary right to refuse to grant a permit for contract carriage where that carriage is in interstate commerce." The state asserts no power or purpose to require the drivers to do more than register with the appropriate agency.4 Such an identification is necessary, the Commission urges, in order that it may properly apply the state's valid police, welfare, and safety regulations to motor carriers using its highways. Nor is there any showing whatever that the Commission has attempted or will attempt to attach any burdensome conditions to the grant of a permit, or conditions that would in any manner conflict with the National Motor Carrier Act or any Interstate Commerce Commission regulations issued thereunder. Moreover, the Arkansas Act imposes upon its Commission the duty of reconciling state regulation with that of the Interstate Commerce Commission, just as the Interstate Commerce Act requires federal officials to cooperate with the states and their duly authorized state officials. Here neither petitioner nor the drivers have obtained any kind of authority from the Interstate Commerce Commission. Indeed, petitioner's whole case has been built on the premise that neither it nor the drivers must get a permit from the state or the national regulatory agency. In this situation our prior cases make clear that a state can regulate so long as no undue burden is imposed on interstate commerce, and that a mere requirement for a permit is not such a burden.5 It will be time enough to consider apprehended burdensome conditions when and if the state attempts to impose and enforce them. At present we hold only that Arkansas is not powerless to require interstate motor carriers to identify themselves as users of that state's highways. Affirmed. |
8 | 1. The Interstate Commerce Commission has the power under the Interstate Commerce Act to fix the point at which line-haul or carrier transportation service begins and ends. Pp. 190, 193, 197.2. The convenient points at which line-haul or carrier transportation service begins and ends are questions of fact to be determined by the Commission; and its findings on those questions will not be disturbed by the courts if supported by substantial evidence. P. 193.3. In this proceeding, the Commission's determination of the points at which line-haul or carrier transportation service begins and ends at the smelting companies' plants is supported by substantial evidence and must be sustained. Pp. 188-194.4. When the Commission has determined the point at which line-haul or carrier transportation service begins and ends at a particular plant, the line-haul charge thereafter must be to that point and not to a further point fixed in a carrier tariff, since transportation to the latter point at the line-haul rate would be preferential and would violate 6 (7) of the Interstate Commerce Act. Pp. 194-197.5. The contention that to require the carriers to conform to the Commission's orders in this case would require the smelting companies to pay twice for their services misconceives the scope of this proceeding, which was solely to define what is embraced in line-haul transportation, and not to determine whether the charge made for the service was compensatory. Pp. 197-198.6. The Commission has authority to exclude rate questions from this proceeding. P. 198.7. The fact that there was no appeal from an earlier judgment of the District Court granting a temporary injunction and remanding the case to the Commission (the court having found that there was no evidence to sustain a Commission finding that the line-haul rates were not compensatory for the services rendered) does not require that the judgment here appealed from be affirmed under the rule of "law of the case," since the earlier judgment was not a final judgment. Pp. 198-199. Reversed. In a suit to enjoin the enforcement of orders of the Interstate Commerce Commission, the District Court held the orders unlawful and permanently enjoined their enforcement. On direct appeal to this Court, reversed, p. 199.Joseph W. Bishop, Jr. argued the cause for the United States, appellant. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bergson and J. Roger Wollenberg. Edward Dumbauld was also of counsel.Allen Crenshaw argued the cause for the Interstate Commerce Commission, appellant. With him on the brief was Daniel W. Knowlton.Charles A. Horsky argued the cause for the United States Smelting Refining & Mining Co., appellee. With him on the brief was Paul B. Cannon.Otis J. Gibson argued the cause and was on the brief for the Denver & Rio Grande Western Railroad Co., appellee.Elmer B. Collins argued the cause and was on the brief for the Union Pacific Railroad Co., appellee.John F. Finerty argued the cause and was on the brief for the American Smelting & Refining Co., appellee.The cause was submitted on briefs by Clinton D. Vernon, Attorney General, for intervenors State of Utah et al.; Walter R. McDonald for intervenor Public Utilities Commission of Colorado; Stanley T. Wallbank for intervenor Colorado Mining Association; and S. J. Quinney for intervenor Utah Mining Association, appellees. MR. JUSTICE MINTON delivered the opinion of the Court.The Interstate Commerce Commission instituted the proceedings leading to the orders here involved as its Seventy-fifth and Seventy-sixth Supplemental Reports to Ex parte 104, Practices of Carriers Affecting Operating Revenues or Expenses, Part II, Terminal Services, 209 I. C. C. 11. The proceedings concerned the switching and spotting services rendered by appellee-carriers at the Garfield and Murray, Utah, and Leadville, Colorado, plants of the American Smelting Company, and the Midvale, Utah, plant of the United States Smelting Company. Extensive hearings were held in these supplemental proceedings for the purpose of determining the respective points at which the carriers' line-haul transportation service ended and the extent of the service the carriers might render in the discharge of their obligation to deliver the freight at these four plants.It will not be necessary to detail the physical characteristics of each of the plants involved here. Each has a receiving yard or interchange tracks upon which incoming and outgoing freight is switched. Beyond the interchange tracks switching services are numerous and extensive within the plants. The Garfield plant may be described as indicative of the situation at all the plants.1 There, frozen ore is handled in six distinct movements. A large amount of intraplant switching is done by the carriers. To perform these switching services at Garfield requires three train-crew shifts daily. In one twelve-month period at this plant, 22,982 carloads of inbound and 6,960 carloads of outbound freight were handled. On October 14, 1946, the Commission entered its first orders in these proceedings, enjoining appellee-carriers from performing switching and spotting service in violation of the Interstate Commerce Act. On petition to the District Court, a statutory three-judge court sitting, the orders were held unlawful. The court was of the opinion that each of the Commission's orders was based on the premise that the line-haul rates did not cover the intraplant services, and held that such a finding was not supported by the evidence. In addition, the court found that the Commission had not "presumed to exercise the authority which is intended to be conferred under Ex Parte 104 in that the order made is not specifically based upon that authority." The matter was remanded to the Commission "for such action as it may find justifiable in the premises," and the Commission was "temporarily enjoined from requiring its formal order to be carried into force and effect ... ." The Commission on remand reopened the case but took no more evidence. It restated the ground for its action and entered cease and desist orders against the carriers. On petition of the appellees, the District Court again held the orders unlawful and permanently enjoined their enforcement. It is from this judgment that the Commission and the United States have appealed.The Commission undertook its general investigation, Ex parte 104, in the interest of establishing a uniform and equal service for shippers. The Commission concluded that carrier obligation for transportation service ends customarily when delivery is made at a convenient point on the siding inside or outside a consignee's plant. This delivery is such as may be accomplished in one continuous movement without "interruption" occasioned for the convenience of the industry, and is only the equivalent of team track or simple placement switching. In the Commission's view as developed in Ex parte 104, such a convenient delivery point marks the beginning and end of what is termed "line-haul" transportation, and is the extent of the service which may be performed under the line-haul rate. The Commission's authority to determine the point where transportation duty ends and industry convenience begins was upheld by this Court in United States v. American Sheet & Tin Plate Co., . We have repeatedly sustained the Commission in its application of Ex parte 104 principles to particular plants where it has prohibited the performance of services beyond the point fixed under a line-haul rate.2 In issuing cease and desist orders in these ceases the Commission has acted pursuant to its duty to enforce 6 (7) of the Interstate Commerce Act, which section prohibits departure from filed tariffs and the rendering of preferential services.3 As stated, the purpose of these proceedings before the Commission was to determine the beginning and end of line-haul service at appellee-smelters' plants. The next question was whether the service rendered by the carriers conformed to the services delimited by the Commission. Thus the Commission, in its proceedings after remand, was not concerned with the question of whether reasonable rates were in force, as it explained in its second report in the American Smelting Company case:"The question of the reasonableness of published rates or of charges that are or may be fixed for performing industrial services can be decided only in a proceeding brought, or investigation instituted, under different provisions of the act. It is our purpose to make it entirely clear here that our order herein is based solely upon our findings herein, which in turn are based solely upon the principles and authority established with the approval of the Supreme Court in our original and supplemental reports in Ex Parte No. 104, Part II, and that said order is not based in whole or in part upon any conclusions or findings in connection with tariff provisions or testimony as to whether the published rates are reasonable and do or do not include compensation for switching within the plant areas. We hereby repudiate any reference or conclusion to the contrary conveyed by our discussion or evidence relative to such questions and the conclusions based thereon in our prior supplemental report herein." 270 I. C. C. at 362. With that clear and distinct statement of what it was doing and what it was not doing, the Commission made its findings of fact which appear in the margin.4 The essential part of the findings is that line-haul began and ended at the interchange tracks, known as "assembly yard" at Midvale, the plant of United States Smelting, and the "plant yard" at Garfield, "hold tracks" at Murray, and "flat yard" at Leadville, the plants of American Smelting; that all services beyond these points were excess services not required of the carrier as part of its line-haul carriage; and that the performance of services beyond these points without compensatory charges results in preferential service in violation of 6 (7).That the Commission is authorized to establish the point where line-haul service begins and ends is not to be doubted. The question, in reviewing the Commission's determination of the convenient points at which line-haul or carrier transportation service begins and ends, is whether such determination is supported by substantial evidence,5 as this Court said in United States v. Wabash R. Co., :"In sustaining the Commission's findings in these proceedings, as in related cases, this Court has held that the point in time and space at which the carrier's transportation service ends is a question of fact to be determined by the Commission and not the courts, and that its findings on that question will not be disturbed by the courts if supported by evidence." In the instant case there is substantial evidence to support the Commission's findings that the convenient points for the beginning and end of line-haul were at the interchange tracks, more specifically characterized above. The Commission had before it the extensive record of the basic proceeding, which the District Court did not have, together with the instant supplemental proceedings. The Commission's findings were based in part on the testimony of its experts who had made personal surveys and observations of switching and car movements at these plants. It is apparent from the record that extensive intraplant services were performed on instructions of and for the convenience of the appellee-smelters. When a car is followed through its intraplant movements on a map, it is demonstrated that extensive services were performed in excess of those which were established as the permissible limit of line-haul in Ex parte 104. The Commission's designation of the convenient delivery points at each of these plants must be sustained.The contention of appellees is that there are now in effect tariffs that compensate for line-haul and plant services. These tariffs will be separately discussed below. Appellees urge that the carriers cannot be guilty of violating 6 (7) when they are fully compensated for carrier services in line-haul and plant services beyond that, since the smelters do not then receive a preferential service not accorded to shippers generally. The corollary of this contention is that to require payment for the plant services in addition to the line-haul rates, in accordance with the Commission's orders, would be to require the smelters to pay twice for the services.This Court has emphasized that the preference involved in these proceedings is based upon an application of the standards derived from Ex parte 104 to the unique conditions at particular plants, a preference necessarily resulting when a service is rendered "in excess of that which the carriers are obliged to perform by their tariffs." United States v. Wabash R. Co., supra, 412, 413. In Corn Products Refining Co. v. United States, , this Court affirmed per curiam a decision upholding the exclusion, on grounds of irrelevancy, of evidence pertaining to the custom and practice of carriers in making delivery to other shippers. If custom may not be used to interpret "line-haul" after demarcation of transportation and industry service by the Commission, we think it follows that a carrier definition written into filed tariffs does not make impotent the Commission's authority to define the point.A tariff, effective June 25, 1938, is considered applicable only to the Midvale, Garfield, and Murray plants. By this tariff the "line-haul rate includes movement of loaded cars to track scales and subsequent delivery to any designated track within the plant which can be accomplished by one uninterrupted movement ... from the road-haul point of delivery to the switching line."6 266 I. C. C. at 353-354. There are additional charges for other services in the plants.If the Commission has the authority to fix the point at which line-haul begins and ends, and we have held that it has, and it designates Point X, obviously the carriers cannot by tariff fix line-haul at Point Y, a further point, and even add one subsequent movement. That would deprive the Commission of its right to determine the point. In the Commission's judgment, which is supported by the evidence, delivery to Point X is the equivalent of team track and simple placement service - the service other shippers receive under a line-haul rate. For the carriers to give the appellee-smelters service to Point Y plus 1 is to accord them service different from that given other shippers under Ex parte 104 and supplemental proceedings. By the orders in the instant cases, line-haul is translated, as it were, into the tariffs as beginning and ending where the Commission fixed it and not where the appellee-carriers fixed it by tariff. Thereafter, the charge for line-haul must be to the interchange tracks and not to the point fixed in the tariff. Transportation to the latter point at the line-haul rate would be preferential and would violate 6 (7).The tariff which is considered by appellee-carriers as applicable only to the Leadville plant is set forth in the margin.7 It may be noted that this tariff does not provide, as does the 1938 tariff applicable to the other plants, that the line-haul rate includes the intraplant services. Further, the "movement" specified in delivery of a line-haul shipment includes not just one, as provided by the 1938 tariff, but several switching operations which the Commission has classified as "interrupted" terminal switching services, performed for the convenience of the industry only.The Commission has fixed the point at which line-haul or transportation service ends as the "flat yard" at Leadville and finds there are services performed beyond this point. These industry services must be so compensated for, and may not be wrapped up in delivery of a line-haul shipment."Since the Commission finds that the carriers' service of transportation is complete upon delivery to the industries' interchange tracks, and that spotting within the plants is not included in the service for which the line-haul rates were fixed, there is power to enjoin the performance of that additional service or the making of an allowance to the industry which performs it." United States v. American Sheet & Tin Plate Co., . Obviously the plant services at Leadville are different from those at Midvale, Garfield, and Murray under the 1938 tariff, which only emphasizes the wisdom of Congress in empowering the Commission to fix the point where line-haul begins and ends with a view to giving all shippers equivalent service. The Commission has standardized such service as team track or simple placement switching. What we now hold is that the Commission has the power to fix the point at which line-haul or carrier service begins and ends. This is necessary because the need for switching varies from plant to plant; indeed, some plants may need no intraplant switching service. Thus, unless the Commission can fix the beginning and ending point of the line-haul, some shippers would pay an identical line-haul rate for less service than that required by other industrial plants. See Baltimore & Ohio R. Co. v. United States, . A different point fixed by the carrier in its tariff gives service in excess of that accorded shippers generally as established in Ex parte 104, and therefore amounts to an unlawful preferential service.As to the argument that to require the carriers to conform to the Commission's orders would require the appellee-smelters to pay twice for their service, the short answer is that appellees misconceive the scope of this proceeding, which is solely to define what is embraced in line-haul transportation. We accept the admonition of the Commission in its second report, quoted supra, and reiterated in its brief, that it was not here concerned, and made no finding, as to whether the charge made for the service was or was not compensatory. We think that the Commission has authority to exclude rate questions from this proceeding. If the carriers so wish, they may file a new tariff to conform their charges to the services indicated in the Commission's order. 49 U.S.C. 6 (1) and (3). If the carrier makes a double or unreasonable charge, the industry may be heard upon the reasonableness of the rate. 49 U.S.C. 9, 13, 15.Finally it is contended that the District Court judgment should be affirmed because there was no appeal from the judgment and mandate when the case was sent back to the Commission, the court having found that there was no evidence to sustain a Commission finding that the line-haul rates were not compensatory for the services rendered. Appellees argue that that decision became the law of the case.The rule of the law of the case is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter. Messenger v. Anderson, ; Insurance Group v. Denver & R. G. W. R. Co., . It is not applicable here because when the case was first remanded, nothing was finally decided. The whole proceeding thereafter was in fieri. The Commission had a right on reconsideration to make a new record. Ford Motor Co. v. Labor Board, . When finally decided, all questions were still open and could be presented. The fact that an appeal could have been taken from the first order of the District Court was not because it was a final adjudication but because a temporary injunction had been granted in order to maintain the status quo. This was an interlocutory order that was appealable because Congress, notwithstanding its interlocutory character, had made it appealable. 28 U.S.C. 1253. The appellants might have appealed, but they were not bound to. We think that it requires a final judgment to sustain the application of the rule of the law of the case just as it does for the kindred rule of res judicata. Compare United States v. Wallace Co., . And although the latter is a uniform rule, the "law of the case" is only a discretionary rule of practice. It is not controlling here. See Southern R. Co. v. Clift, . Judgment reversed.MR. JUSTICE JACKSON dissents.MR. CHIEF JUSTICE VINSON and MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. |
1 | Appellant, an Alabama city that has a long history of racial discrimination and that until recently had an all-white population, is covered by 5 of the Voting Rights Act of 1965 (Act) and accordingly must seek preclearance before instituting any change in a standard, practice, or procedure affecting voting. Appellant sought approval by the Attorney General for the annexation of two parcels of land, one vacant (hereinafter called the Western Addition) and the other (Glasgow Addition) added at the request of its inhabitants, an extended white family who wished their children to attend appellant's then all-white school system. The Attorney General objected to the annexations, finding with respect to the Western Addition that appellant's refusal to annex an adjacent black neighborhood (Highlands) was indicative of an intent to annex only white areas. Pursuant to 5 of the Act, appellant then filed this declaratory action in the United States District Court for the District of Columbia, which denied relief, finding that the Western Addition's location and appellant's plans for relatively expensive housing there indicated that it was likely to be developed for use by white persons only. The court further found that appellant failed to carry its burden of proving that the annexations at issue did not have the purpose of abridging or denying the right to vote on account of race.Held: 1. Fundamental principles of the Act, governing this case, are that an annexation of inhabited land constitutes a change in voting practice or procedure subject to preclearance under 5, and even the annexation of vacant land on which residential development is anticipated must be precleared before those moving into the area may vote in the annexing jurisdiction. Moreover, Congress intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent, and the burden of proving absence of discriminatory purpose and effect is on the covered jurisdiction. Pp. 467-469. 2. There is no merit to appellant's contention that the District Court erred in concluding that appellant had not carried its burden of showing that the annexations were untainted by a racially discriminatory purpose. In arriving at its decision, the District Court relied on a variety of evidence, principally its finding that the refusal to annex the Highlands while annexing other areas was racially motivated rather than, as appellant asserted, based upon economic considerations. The court's findings, both as to the purpose of not annexing the Highlands and with respect to the weight of the evidence regarding the purpose of the two annexations at issue, are findings of fact that must be accepted unless clearly erroneous, and appellant has not established that they are clearly erroneous. Appellant's argument that even if its decision not to annex the Highlands was racially motivated, such decision was not a change respecting voting and hence was not subject to 5 is correct, but not dispositive. The failure to annex black areas while simultaneously annexing nonblack areas is highly significant in demonstrating that appellant's annexations were purposefully designed to perpetuate is as an enlarged enclave of white voters. Moreover, the contention that since appellant had no black voters at the time of the annexations they could not have caused an impermissible effect on black voting and thus it cannot be concluded that appellant had a discriminatory purpose, is based on the incorrect assumption that an impermissible purpose under 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well, and, likewise, an impermissible purpose under 5 may relate to anticipated as well as present circumstances. Pp. 469-472. 623 F. Supp. 782, affirmed.WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, STEVENS, and SCALIA, JJ., joined. POWELL, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 472.Thomas G. Corcoran, Jr., argued the cause for appellant. With him on the briefs were Donald J. Cronin and Thomas N. Crawford, Jr.Jerrold J. Ganzfried argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, and Walter W. Barnett.* [Footnote *] Daniel J. Popeo and George C. Smith filed a brief for the Washington Legal Foundation as amicus curiae urging reversal. David Boies, Stephen D. Poss, Joaquin Avila, and Armand Derfner filed a brief for the Democratic National Committee as amicus curiae urging affirmance. JUSTICE WHITE delivered the opinion of the Court.Appellant, Pleasant Grove, a city in Alabama that until recently had an all-white population, is covered by 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S.C. 1973c, and accordingly must seek preclearance before instituting any change in a standard, practice, or procedure affecting voting.1 Appellant unsuccessfully sought preclearance by the Attorney General for the annexation of two parcels of land, one vacant and the other inhabited by a few whites. Appellant also failed to convince a three-judge District Court that the annexations did not have the purpose of abridging or denying the right to vote on account of race. We noted probable jurisdiction, , and now affirm. IAppellant, whose population numbers approximately 7,000, was described by the District Court as "an all-white enclave in an otherwise racially mixed area of Alabama."2 568 F. Supp. 1455, 1456 (DC 1983). The city has a long history of racial discrimination. The District Court's opinions chronicle the city's past discriminatory practices in some detail, and we will not repeat that history fully here. See 623 F. Supp. 782, 787-788 (DC 1985); 568 F. Supp., at 1456-1457. Suffice it to say that in housing, zoning, hiring, and school policies appellant's officials have shown unambiguous opposition to racial integration, both before and after the passage of the federal civil rights laws.The two annexations at issue in this case are the Glasgow Addition, a 40-acre parcel added in 1969, App. 7, and the Western Addition, a 450-acre area added in 1979. The Glasgow Addition was added at the request of its inhabitants, an extended white family who wished their children to attend appellant's newly formed, all-white school district rather than the recently desegregated Jefferson County system.3 The Western Addition is uninhabited, but the District Court found that "its location and the City's plans [for relatively expensive housing] indicate that it is likely to be developed for use by white persons only." 623 F. Supp., at 784, n. 5.While approval of the Western Annexation was pending before the Alabama Legislature, appellant's City Council voted to withdraw fire and paramedic services that appellant was providing without charge to an adjacent black neighborhood known as Pleasant Grove Highlands (Highlands). In response, inhabitants of the Highlands, which has housing comparable to that in Pleasant Grove, petitioned for annexation to the city. The City Council restored free fire protection, but did not otherwise act on the petition.4 App. 18-19.Appellant sought preclearance for the annexation of the Western Addition, but the Attorney General objected because he found the refusal to annex the Highlands indicative of an intent to annex only white areas.5 The city then filed this declaratory action in the District Court for the District of Columbia.6 In denying appellant's motion for summary judgment, the court held, over one judge's dissent, that "a community may not annex adjacent white areas while applying a wholly different standard to black areas and failing to annex them based on that discriminatory standard." 568 F. Supp., at 1460. In its subsequent decision on the merits, the court, with one judge dissenting, denied declaratory relief, holding that the city had failed to carry its burden of proving that the two annexations at issue did not have the purpose of abridging or denying the right to vote on account of race.7 This appeal followed.IIBefore addressing appellant's arguments, we find it useful to review two fundamental principles of the Voting Rights Act.First. An annexation of inhabited land constitutes a change in voting practice or procedure subject to preclearance under 5. City of Richmond v. United States, ; Perkins v. Matthews, ). Even the annexation of vacant land on which residential development is anticipated must be precleared before those moving into the area may vote in the annexing jurisdiction. In City of Rome v. United States, , this Court affirmed the denial of preclearance to 13 annexations, 9 of which were vacant land. See id., at 194, 196 (POWELL, J., dissenting); City of Rome, Ga. v. United States, 472 F. Supp. 221, 246 (DC 1979). This holding is consistent with the well-established teaching of Allen v. State Board of Elections, , that Congress intended the preclearance provisions of the Voting Rights Act to be given "the broadest possible scope," id., at 567, and to reach "any state enactment which alter[s] the election law of a covered State in even a minor way," id., at 566. Allowing a State to circumvent the preclearance requirement for annexations by annexing vacant land intended for white developments would disserve Congress' intent to reach "the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race." Id., at 565. Moreover, the Attorney General, whose interpretation of the Voting Rights Act is entitled to considerable deference, see, e. g., United States v. Sheffield Board of Comm'rs, , has consistently interpreted 5 to reach the annexation of vacant land intended for residential development.8 Finally, Congress was aware of the Attorney General's view in this regard, and implicitly approved it, when it reenacted the Voting Rights Act in 1982.9 Cf. id., at 131-135. Second. "Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent." City of Rome, supra, at 172 (emphasis in original). See also, e. g., City of Richmond, supra, at 378. The burden of proving absence of discriminatory purpose and effect is on appellant. See, e. g., City of Rome, supra, at 183, n. 18.IIIThe city does not claim that either of the two annexations was not a change in voting practices subject to preclearance under 5, even though the Western Addition was at the time uninhabited.10 Neither does it disagree that it must prove that the two annexations had neither the discriminatory purpose nor effect prohibited by 5 of the Act. Its challenge is to the District Court's conclusion that the city had not carried its burden of showing that the annexations were untainted by a racially discriminatory purpose. In arriving at this judgment, the District Court relied on a variety of evidence, principally its finding that the refusal to annex the Highlands while annexing other areas was racially motivated. These findings, both as to the purpose of not annexing the Highlands and with respect to the weight of the evidence regarding the purpose of the two annexations at issue, are findings of fact that we must accept unless clearly erroneous. The city has not convinced us that they are. Appellant insists, as it did below, that its failure to annex the Highlands was not racially motivated, but based upon economic considerations. The District Court found this justification "a mere pretext for race-biased annexation decisions." 623 F. Supp., at 784. The court found that appellant's economic argument was developed after the fact and was not the true basis for the decision not to annex the Highlands. Id., at 784-785. Furthermore, the court found that appellant's argument did not reflect economic realities in a number of respects. For example, appellant's calculation of the costs of annexing the Highlands included the cost of services it was already providing gratis to that neighborhood. Id., at 786-787. Appellant also failed to consider that annexing the Highlands would generate immediate ad valorem taxes and possibly development fees from the construction of new homes. Id., at 786. At the same time, appellant's comparative estimate of the revenues that would be generated by the Western Addition failed to take into account such necessary costs as the construction of a new fire station, a major traffic artery, and a new neighborhood park. Id., at 787, n. 21. The District Court concluded that refusing to annex the Highlands was racially motivated.Appellant argues that even if its decision not to annex the Highlands was racially motivated, that decision was not a change respecting voting and hence not subject to 5. That point is correct but not dispositive; as the Solicitor General argues: "[T]he failure to annex [black] areas, while the city was simultaneously annexing non-black areas, is highly significant in demonstrating that the city's annexation here was purposefully designed to perpetuate Pleasant Grove as an enlarged enclave of white voters." Brief for United States 21, n. 12.Appellant also relies on the fact that there were no black voters in Pleasant Grove at the time the relevant annexation decisions were made, so that the annexations did not reduce the proportion of black voters or deny existing black voters representation equivalent to their political strength in the enlarged community. Cf. City of Richmond v. United States, 422 U.S., at 370-371. Appellant contends that since the annexations could not possibly have caused an impermissible effect on black voting, it makes no sense to say that appellant had a discriminatory purpose. This argument is based on the incorrect assumption that an impermissible purpose under 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well, as shown by the fact that annexations of vacant land are subject to preclearance even though no one's right to vote is immediately affected. See supra, at 467-468, and n. 8. Likewise, an impermissible purpose under 5 may relate to anticipated as well as present circumstances.11 It is quite plausible to see appellant's annexation of the Glasgow and Western Additions as motivated, in part, by the impermissible purpose of minimizing future black voting strength.12 Common sense teaches that appellant cannot indefinitely stave off the influx of black residents and voters - indeed, the process of integration, long overdue, has already begun. See supra, at 465, n. 2. One means of thwarting this process is to provide for the growth of a monolithic white voting block, thereby effectively diluting the black vote in advance. This is just as impermissible a purpose as the dilution of present black voting strength. Cf. City of Richmond, supra, at 378. To hold otherwise would make appellant's extraordinary success in resisting integration thus far a shield for further resistance. Nothing could be further from the purposes of the Voting Rights Act.In light of the record before us, we are not left with the definite and firm conviction that the District Court was mistaken either in finding that the refusal to annex the Highlands was racially motivated or that there was insufficient proof that the annexation of the Glasgow and Western Additions did not have a purpose forbidden by 5. Those findings are not, therefore, clearly erroneous. Anderson v. Bessemer City, .The judgment of the District Court is accordingly Affirmed. |
7 | Petitioner, Marine Terminals, was hired by its affiliate, the time charterer of respondent's ship, to continue readying the vessel, then in Chicago, for its grain cargo. While that operation (which the ship's crew had begun) was in progress, one of petitioner's employees was killed by falling into an unprotected deep tank opening. The employee's widow filed a claim under the Longshoremen's and Harbor Workers' Compensation Act, and compensation was awarded against petitioner for weekly payments, the potential total liability for which is about $70,000. As administratrix of the estate the widow also filed a wrongful death action against respondent in the District Court, under an Illinois statute which then limited the amount recoverable to $30,000. Respondent sued Marine Terminals for indemnification for any judgment it might be required to pay in the wrongful death action, charging that petitioner's negligence had breached its warranty that services to the vessel would be performed "in a safe, workmanlike and seamanlike manner," and gave rise to an obligation to save respondent harmless from liability occasioned by the employee's death. Petitioner counterclaimed for compensation benefits paid or to be paid to the employee's dependents, alleging that respondent owed petitioner as stevedoring contractor, "the duty of providing and maintaining a safe place to work" which respondent allegedly breached by failing to protect the deep tank opening. The District Court granted respondent's motion to dismiss petitioner's counterclaim. Though it recognized the availability at common law in certain situations of a direct right over, the court concluded that petitioner's sole remedy is under 33 of the Longshoremen's and Harbor Workers' Compensation Act, which provides that an employer paying compensation benefits to a deceased employee's representative may be subrogated to the rights of the representative against third persons. The Court of Appeals, holding the statutory remedy in any event exclusive, affirmed. Held: 1. Nothing on the face of 33 of the Longshoremen's and Harbor Workers' Compensation Act or in the Act's legislative history limits the employer's remedy against third persons to subrogation to the rights of the deceased employee's representative. Pp. 412-414. 2. Federal maritime law imposes on the shipowner a duty to the stevedoring contractor of due care under the circumstances and recognizes a direct tort action against the shipowner to recover the amount of compensation payments occasioned by the shipowner's negligence. Pp. 414-418. 3. Direct action otherwise than in tort by the stevedoring contractor against the shipowner may also be available. Pp. 418-422. 392 F.2d 918, reversed and remanded.John W. Hough argued the cause for petitioner. With him on the briefs was Robert C. Keck.Paul McCambridge argued the cause for respondent. With him on the brief was Lucian Y. Ray.MR. JUSTICE STEWART delivered the opinion of the Court.Under 33 of the Longshoremen's and Harbor Workers' Compensation Act,1 an employer who pays compensation benefits to the representative of a deceased employee may be subrogated to the rights of the representative against third persons.2 The question presented by this case is whether a stevedoring contractor whose longshoreman employee was killed in the course of his employment is limited to this subrogation remedy in seeking reimbursement from a shipowner on whose vessel the longshoreman met his death. Both the District Court3 and the Court of Appeals4 held that statutory subrogation is the stevedoring contractor's exclusive remedy against the shipowner, and we granted certiorari to consider this novel question under the Act.5 I. According to the stipulation of facts, the M/V Otterburn, owned and operated by respondent Burnside Shipping Co., was under time charter to Federal Commerce and Navigation Co., a Canadian corporation affiliated with the petitioner, Federal Marine Terminals, Inc. Federal Commerce hired Marine Terminals to continue the operation, already commenced by the ship's crew, of preparing the vessel to receive a cargo of grain. While the ship was docked in Detroit, the crew had commenced installation of "grain feeders" - walled-in structures erected in the 'tween deck hatches to the height of the main deck hatch. After Marine Terminals had been employed to continue the work of readying the ship for its cargo, the boatswain, acting on the instructions of the ship's Chief Officer, "winged out" the deep tank lids - that is, pulled them outboard into the wings of the 'tween deck. No railing, wire, or guard of any kind was placed around the resulting deep tank openings.Marine Terminals' employees began working on the Otterburn after it had been removed to Chicago. On the morning of the third day of work, a group of Marine Terminals' stevedores, supervised by Gordon McNeill, arrived at approximately 7 o'clock to continue with carpentry work in the 'tween deck as part of the last stages of completing a grain feeder in the area of the "winged out" deep tank lids. McNeill was last seen alive shortly after 8 a. m. At 8:45 a. m. his lifeless body was discovered lying at the bottom of one of the deep tanks. There were no witnesses to his 30-foot fall.McNeill's widow filed a claim for benefits under the Act for herself and three minor children, and the Department of Labor entered a compensation order for weekly payments of $36.75 to the widow and $33.25 to the children. The potential total liability of Marine Terminals for these payments is approximately $70,000. As administratrix of McNeill's estate, his widow also filed a maritime wrongful death action against Burnside Shipping Co. in the United States District Court for the Northern District of Illinois. Burnside answered the complaint, denying that McNeill's death had been caused by its negligence or by its failure to furnish a seaworthy vessel.Burnside also commenced a separate action in the same court against Marine Terminals seeking indemnification for any judgment it might be required to pay in the wrongful death action. The libel charged that, by virtue of the agreement with the time charterer to prepare the ship for its cargo, Marine Terminals "warranted that its services to the vessel would be performed in a safe, workmanlike and seamanlike manner." That warranty was alleged to have been breached and the accident caused by Marine Terminals' negligence, giving rise to an obligation to save Burnside harmless from all liability and expense occasioned by McNeill's death.Marine Terminals filed an answer denying most of the allegations of the libel, and also filed a counterclaim seeking damages from Burnside for "all sums which have been paid or will be paid" as compensation benefits to McNeill's dependents. The counterclaim alleged that Burnside, as owner and operator in control of the Otterburn, owed the stevedoring contractor "the duty of providing and maintaining a safe place to work so that injury to the employees ... would be avoided." Burnside had violated that duty, according to the counterclaim, by its negligence"in failing to properly guard the deep tank opening, or make the passageway secure, or to cover up the said deep tank, and in failing to clear the passageways, and failing to provide adequate lighting in the area or to provide a safety railing around the deep tank opening, thereby causing, suffering and permitting the area and open deep tank to be a source of menace and danger." Burnside moved to dismiss the counterclaim for failure to state a cause of action. Each party then filed a motion for summary judgment on its claim and counterclaim.The District Court, finding that material factual disputes existed concerning the conduct of both parties, denied Burnside's motion for summary judgment on its complaint.6 But it did grant the motion to dismiss Marine Terminals' counterclaim. The court noted Marine Terminals' concession that its theory of a direct action against the shipowner was novel. Normally the stevedoring contractor is content with its remedy of subrogation to the rights of the deceased longshoreman's representative against whatever third party may be liable for the death, usually the shipowner. In this case, however, the applicable Illinois Wrongful Death Act limited the amount recoverable by the decedent's representative to $30,000,7 far short of Marine Terminals' potential liability of $70,000. The court recognized that "[t]he existence of such a direct right over is well established in certain situations,"8 but concluded that the employer's rights provided by the Longshoremen's and Harbor Workers' Compensation Act are exclusive and "prevent him from maintaining an independent cause of action against the third party tortfeasor."9 The Court of Appeals affirmed, agreeing that Marine Terminals' sole remedy is by subrogation under the Act. But while the District Court had implied that the stevedoring contractor would have had a direct action had it not been abrogated by the Act, the Court of Appeals appeared to assume that, in the absence of the statutory remedy, federal maritime law would permit no direct recovery from the shipowner: "There is no common law direct action as the defendant argues. There is only the Longshoremen's and Harbor Workers' Compensation Act which creates an entire legal procedure in this part of admiralty law. We cannot search outside of the Act for common law remedies which do not exist. The Act is the source of all remedies."10 This case thus presents two questions. First, does 33 of the Act exclude whatever other rights of action the stevedoring contractor might have against the shipowner for compensation payments to an employee or his representative? Second, if statutory subrogation is not an exclusive remedy, does the shipowner owe the stevedoring contractor any duty whose breach will give rise to a direct action? We consider these questions in order below. II. The Court of Appeals was clearly mistaken in its assertion that "[t]he statutory method provides that the [stevedoring contractor] can sue only as a subrogee."11 Nothing on the face of 33 of the Act purports to limit the employer's remedy against third persons to subrogation to the rights of the deceased employee's representative. The provision of 33 that the employer's payment of compensation "shall operate as an assignment to the employer of all right of the legal representative of the deceased ... to recover damages against such third person" contains no words of limitation. Congress thereby gave the employer, in return for his absolute liability to the employee's representative, part of the latter's rights against others. But the legislative grant of a new right does not ordinarily cut off or preclude other nonstatutory rights in the absence of clear language to that effect. When Congress imposed on the employer absolute liability for compensation, it explicitly made that liability exclusive.12 Yet in the same Act it attached no such exclusivity to the employer's action against third persons as subrogee to the rights of the employee or his representative.Nothing in the legislative history of the Act remotely supports the construction adopted by the courts below. And we can perceive no reason why Congress would have intended so to curtail the stevedoring contractor's rights against the shipowner. The exclusivity of the statutory compensation remedy against the employer was designed to counterbalance the imposition of absolute liability; there is no comparable quid pro quo in the relationship between the employer and third persons. On the contrary, as we emphasized in Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., , the Act is concerned only with the rights and obligations as between the stevedoring contractor and the employee or his representative. It does not affect independent relationships between the stevedoring contractor and the shipowner. Neither this Court13 nor, before this case, any other court14 has held that statutory subrogation is the employer's exclusive remedy against third party wrongdoers, and we decline to so hold today. III. We must also reject the implication of the Court of Appeals' opinion that under federal maritime law the shipowner owed the stevedoring contractor no duties whose breach would give rise to a direct action for damages. As we held in Kermarec v. Compagnie Generale Transatlantique, , "the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case." That duty of due care imposed by law extends to the stevedoring company as well as to others lawfully on the ship, and its breach gives rise to a cause of action for any damages proximately caused. It is not disputed, for example, that if the shipowner's negligence caused damages to the stevedoring contractor's equipment, those damages would be recoverable in a direct action sounding in tort. We can see no reason why the shipowner's liability does not in like fashion extend to the foreseeable obligations of the stevedoring contractor for compensation payments to the representative of a longshoreman whose death was occasioned by the shipowner's breach of his duty to the stevedoring contractor.We do not, of course, hold that the shipowner's duty to the employer is the same as to the employee. Nor do we disapprove the Court of Appeals' holding that the shipowner does not owe to the stevedoring contractor the absolute duty of seaworthiness owed to individual longshoremen.15 But Marine Terminals' counterclaim in this action did not rely on the unseaworthiness of the ship. Rather it charged that Burnside had been negligent in certain particular respects.16 And we have suggested before this that, while "the duties owing from [the shipowner] to [the longshoreman] were not identical with those from [the shipowner] to [the stevedoring contractor]," the shipowner can be negligent with respect to the stevedoring contractor as well as to the longshoreman. Weyerhaeuser S. S. Co. v. Nacirema Operating Co., .17 Neither court below reached the question whether the counterclaim sufficiently alleged a breach of the duties owed by Burnside to Marine Terminals, and relevant factual questions remain unresolved. With the case in its present posture, therefore, we express no opinion as to whether the conduct of Burnside's employees amounted to a breach of the duty it owed to Marine Terminals.18 We hold only that federal maritime law does impose on the shipowner a duty to the stevedoring contractor of due care under the circumstances, and does recognize a direct action in tort against the shipowner to recover the amount of compensation payments occasioned by the latter's negligence.This holding is in no wise a departure from our decision in Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., , that we would not "fashion new judicial rules of contribution" between the shipowner and the stevedoring contractor as joint tortfeasors. Marine Terminals is not seeking contribution. It is not asking Burnside to share responsibility for their joint negligence with respect to McNeill. Rather the counterclaim seeks recovery of the full amount of Marine Terminals' liability under the Act to McNeill's representative; and it is founded not on Burnside's wrong to McNeill but on its independent wrong to Marine Terminals.We further note that at this stage of the case it must be assumed that Marine Terminals was faultless vis-a-vis Burnside, for the claim that Marine Terminals breached its Ryan warranty of workmanlike service has not yet been adjudicated and is not before us. We decide nothing today with respect to the interaction between the shipowner's breach of warranty claim and the stevedoring contractor's tort claim. Marine Terminals has charged Burnside with negligence not as a defense to the latter's Ryan claim but in a counterclaim for damages, and we have considered that claim without regard to the implications of the shipowner's countervailing cause of action. Our holding is perforce limited to a rejection of Burnside's argument that "a shipowner's tortious conduct may be used as a shield, but not as a sword." IV. In holding that the stevedoring contractor has a direct action in tort, we do not preclude the possibility of a direct action under some other theory. Marine Terminals argues in this case, for example, that just as a stevedoring contractor impliedly warrants to a shipowner under Ryan that it will perform the stevedoring services in a workmanlike manner, so also there are reciprocal contractual warranties running from the shipowner to the stevedoring contractor.19 Burnside counters with the observation that the stevedoring contract in this case is between Marine Terminals and its affiliate Federal Commerce, the time charterer, and that there is therefore no privity of contract between Marine Terminals and Burnside. Because the record before us contains neither the contract for stevedoring services nor the charter agreement, we cannot now assess these arguments. We do not know, for instance, whether any provisions of the time charter contain express or implied warranties which would inure to the benefit of Marine Terminals as stevedoring contractor.20 Marine Terminals has also argued that, aside from any express or implied-in-fact contract, it has a quasi-contractual right of indemnity for the liability which it incurred under the Act on account of the shipowner's wrong. This right, which was evidently recognized by the District Court,21 is said not to stem solely from the pre-existing contractual relationship between the parties, but to be conferred by law in order to place the liability where it justly belongs.22 As one court has described it,"admiralty courts have recognized a right to indemnity, as distinguished from contribution, in a person who has responded in damages for a loss caused by the wrong of another. This right has been recognized in two general classes of cases: those in which the person seeking indemnification was without fault; and those in which such person was passively negligent, but the primary cause of the loss was the active negligence of another."23 Recovery can be based on this concept, Marine Terminals contends, because Burnside's conduct was either solely or primarily responsible for McNeill's death. We express no opinion on the validity of this indemnity theory or its application to this case, but hold only that Marine Terminals is not foreclosed by any decision of this Court from raising it in the District Court. We have cautioned that "in the area of contractual indemnity an application of the theories of `active' or `passive' as well as `primary' or `secondary' negligence is inappropriate," Weyerhaeuser S. S. Co. v. Nacirema Operating Co., .24 But that proscription in terms applied only "in the area of contractual indemnity" under Ryan. In Ryan itself we specifically did "not meet the question of a noncontractual right of indemnity or of the relation of the Compensation Act to such a right." 350 U.S., at 133.25 By leaving open the question of such an indemnity action by the shipowner against the stevedoring contractor, a fortiori we did not decide anything with respect to such an action by the stevedoring contractor against the shipowner.26 Because, as we hold today, 33 of the Longshoremen's and Harbor Workers' Compensation Act is not the exclusive source of the stevedoring contractor's remedies against the shipowner, and the former may have a cause of action in tort for the compensation payments caused by the shipowner's negligence, we reverse the judgment of the Court of Appeals and remand this case to the District Court for further proceedings consistent with this opinion. It is so ordered. |
6 | In a suit by a union under 301 (a) of the Labor Management Relations Act of 1947, a Federal District Court has authority to compel compliance by an employer with an agreement to arbitrate disputes arising under a collective bargaining agreement with the union. Textile Workers v. Lincoln Mills, ante, p. 448. Pp. 547-548. 233 F.2d 85, affirmed.Warren F. Farr argued the cause for petitioner. With him on the brief were Lane McGovern and James Vorenberg.Allan R. Rosenberg argued the cause and filed a brief for respondent.MR. JUSTICE DOUGLAS delivered the opinion of the Court.This is a companion case to No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, ante, p. 448. Respondent-union and petitioner-employer entered into a collective bargaining agreement governing the hours of work, rates of pay, and working conditions in a Massachusetts plant owned by petitioner. The agreement provided a procedure for the settlement of employee grievances, a procedure having four steps. It also provided that, when the four steps had been exhausted, either party could, with exceptions not material here, submit the grievance to arbitration. The respondent filed written grievances, one asking higher pay for an employee and another complaining that an employee had been wrongfully discharged. Both complaints were carried through the four steps. The union, being dissatisfied, asked for arbitration. The employer refused. The union brought suit in the District Court to compel arbitration of the grievance disputes. The District Court dismissed the bill, being of the view that the relief sought was barred by the Norris-LaGuardia Act. 129 F. Supp. 665. The Court of Appeals reversed, 233 F.2d 85. It first held that the Norris-LaGuardia Act did not bar enforcement of the arbitration agreement. It then held that while 301 (a) of the Labor Management Relations Act of 1947 gave the District Court jurisdiction of the cause, it supplied no body of substantive law to enforce an arbitration agreement governing grievances. But it found such a basis in the United States Arbitration Act, which it held applicable to these collective bargaining agreements. It accordingly reversed the District Court judgment and remanded the cause to that court for further proceedings.We affirm that judgment and remand the cause to the District Court. We follow in part a different path than the Court of Appeals, though we reach the same result. As indicated in our opinion in No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, supra, we think that 301 (a) furnishes a body of federal substantive law for the enforcement of collective bargaining agreements in industries in commerce or affecting commerce and that the Norris-LaGuardia Act does not bar the issuance of an injunction to enforce the obligation to arbitrate grievance disputes. Affirmed. MR. JUSTICE BURTON, whom MR. JUSTICE HARLAN joins, concurs in the result in this case for the reasons set forth in his concurrence in No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, ante, p. 459.MR. JUSTICE BLACK took no part in the consideration or decision of this case. [For dissenting opinion of MR. JUSTICE FRANKFURTER, see ante, p. 460.] |
8 | Certiorari granted: judgment vacated: and case remanded.Petitioner pro se.Solicitor General Rankin for the United States.PER CURIAM.The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. Upon the suggestion of the Solicitor General that inasmuch as the petitioner had been granted leave to proceed in forma pauperis by the District Court, the application to the Court of Appeals was unnecessary, the judgment of the Court of Appeals is vacated and the case is remanded to that Court for further proceedings. |
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