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7 | Section 2(13) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) defines "wages" for the purpose of computing compensation benefits under the Act as meaning "the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer." An employee of petitioner construction company (employer) was fatally injured while working on the District of Columbia Metrorail System. At the time of his death, the employee was covered by the District of Columbia Workmen's Compensation Act, which incorporates the LHWCA, and he was also a beneficiary of a collective-bargaining agreement between the employer and his union. The employer began to pay 66 2/3% of the employee's "average weekly wage" in death benefits to his widow and minor children pursuant to the LHWCA. The widow disputed the amount of the benefits, claiming that her husband's average weekly wage included not only his take-home pay but also the 68 per hour in contributions the employer was required to make to union trust funds under the collective-bargaining agreement for health and welfare, pensions, and training. The Administrative Law Judge rejected the widow's claim and the Benefits Review Board affirmed, holding that only values that are readily identifiable and calculable may be included in the determination of wages and that the employee's rights in his union trust funds were too speculative to meet this definition. The Court of Appeals reversed, holding that the employer's contributions were a reasonable measurement of the value of the benefits to the employee.Held: Employer contributions to union trust funds are not included in the term "wages" as defined in 2(13). Pp. 629-637. (a) The contributions are not "money ... recompensed" or "gratuities received ... from others" nor are they a "similar advantage" to "board, rent, housing, [or] lodging." Board, rent, housing, or lodging are benefits with a present value that can readily be converted into a cash equivalent on the basis of their market values, whereas the present value of the trust funds is not so easily converted into a cash equivalent. The employer's cost of maintaining the funds is irrelevant in this context, since it measures neither the employee's benefit nor his compensation. Nor can the value of the funds be measured by the employee's expectation of interest in them, for that interest is at best speculative. Pp. 630-632. (b) The legislative history of the LHWCA, its structure, and the consistent policies of the agency charged with its enforcement, all show that Congress did not intend to include employer contributions to union trust funds in the statutory definition of "wages." Pp. 632-635. (c) A comprehensive statute such as the LHWCA is not to be judicially expanded because of "recent trends." To expand the meaning of the term "wages" to include employer contributions to union trust funds would significantly alter the balance achieved by Congress between the concerns of longshoremen and harbor workers on the one hand, and their employers on the other. Such an expanded definition would also undermine the goal of providing prompt compensation to injured workers and their survivors. Pp. 635-637. App. D.C. 50, 670 F.2d 208, reversed.BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 638.Arthur Larson argued the cause for petitioners. With him on the briefs were E. Barrett Prettyman, Jr., Walter A. Smith, Jr., and Richard W. Galiher, Jr.Alan I. Horowitz argued the cause for the federal respondent in support of petitioners. With him on the brief were Solicitor General Lee, Deputy Solicitor General Geller, T. Timothy Ryan, Jr., Karen I. Ward, Mary-Helen Mautner, and Charles I. Hadden.Geo. S. Leonard argued the cause and filed a brief for respondent Hilyer.* [Footnote *] Briefs of amici curiae urging reversal were filed by Dennis Lindsay and Robert E. Babcock for the Alliance of American Insurers et al.; by John C. Duncan III and William P. Dale for the American Insurance Association; by Thomas D. Wilcox for the National Association of Stevedores; by Thomas E. Cinnamond, H. Thomas Howell, and Rudolph L. Rose for the National Council of Self-Insurers; and by Jed L. Babbin for the Shipbuilders Council of America. CHIEF JUSTICE BURGER delivered the opinion of the Court.The question presented is whether employer contributions to union trust funds for health and welfare, pensions, and training are "wages" for the purpose of computing compensation benefits under 2(13) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. (part 2) 1425, 33 U.S.C. 902(13) (Compensation Act).IJames Hilyer, an employee of petitioner Morrison-Knudsen Construction Co., was fatally injured while working on the construction of the District of Columbia Metrorail System. At the time of his death, Hilyer was covered by the District of Columbia Workmen's Compensation Act, D.C. Code 36-501 (1973), which incorporates the provisions of the Compensation Act. He was also a beneficiary of a collective-bargaining agreement between Morrison-Knudsen and his union, Local 456 of the Laborers' District Council of Washington, D.C., and Vicinity (AFL-CIO).Immediately upon Hilyer's death, petitioner1 began to pay 66 2/3% of Hilyer's "average weekly wage" in death benefits to his wife and two minor children pursuant to 33 U.S.C. 909(b).2 Respondent Hilyer disputed the amount of benefits paid, claiming, among other things, that her husband's average weekly wage included not only his take-home pay, as petitioner contended, but also the 68 per hour in contributions the employer was required to make to union trust funds under the terms of the collective-bargaining agreement.3 The Administrative Law Judge rejected Mrs. Hilyer's contention and the Benefits Review Board affirmed. The Board reasoned that only values that are readily identifiable and calculable may be included in the determination of wages. Hilyer's rights in his union trust funds were speculative. It was not clear from the record whether his pension rights had vested, and even if they had, the value of his interest in the Pension and Disability Fund depended on his continued employment with petitioner, while the value of his interest in the health, welfare, and training funds was contingent on his need for these benefits. The Board also rejected the notion that the values could be computed from the amounts contributed by the employer, noting that the family in all likelihood would not have been able to purchase similar protection at the same cost.Mrs. Hilyer4 sought review of the Benefits Review Board's decision in the Court of Appeals for the District of Columbia Circuit, reiterating her contention that her husband's wages included the contributions that his employer made to the union trust funds.5 The Court of Appeals reversed. It agreed with the Board that the term "wages" includes only values that are readily identifiable and calculable, but held that the benefits at issue here met that definition. The court reasoned that since the contributions were intended for the benefit of the workers, the trustees could be viewed as "no more than a channel; ... a means by which the company provides life insurance, health insurance, retirement benefits, and career training for its employees." Hilyer v. Morrison-Knudsen Construction Co.App. D.C. 50, 53, 670 F.2d 208, 211 (1981). Although the court conceded that the family would not be able to use the employer's contribution to purchase benefits of equivalent value, it relied on United States ex rel. Sherman v. Carter, , for the proposition that the employer's contributions were a reasonable measurement of the value of the benefits to the employees.We granted certiorari, , and we reverse.IIThis case involves the meaning of 33 U.S.C. 902(13), a definitional section that was part of the Compensation Act in 1927, when it became law, and that has remained unchanged through 10 revisions of the Act.6 The section provides: "`Wages' means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer." AWe begin with the plain language of the Compensation Act. Since it is undisputed that the employers' contributions are not "money ... recompensed" or "gratuities received ... from others," the narrow question is whether these contributions are a "similar advantage" to "board, rent, housing, [or] lodging." We hold that they are not. Board, rent, housing, or lodging are benefits with a present value that can be readily converted into a cash equivalent on the basis of their market values.The present value of these trust funds is not, however, so easily converted into a cash equivalent. Respondent Hilyer urges us to calculate the value by reference to the employer's cost of maintaining these funds or to the value of the employee's expectation interests in them, but we do not believe that either approach is workable. The employer's cost is irrelevant in this context; it measures neither the employee's benefit nor his compensation. It does not measure the benefit to the employee because his family could not take the 68 per hour earned by Mr. Hilyer to the open market to purchase private policies offering similar benefits to the group policies administered by the union's trustees. It does not measure compensation because the collective-bargaining agreement does not tie petitioner's costs to its workers' labors. To the contrary, the employee enjoys full advantage of the Training and Health and Welfare Funds as soon as he becomes a beneficiary of the collective-bargaining agreement. App. 37-38 and 40. He derives benefit from the Pension and Disability Fund according to the "pension credits" he earns. These pension credits are not correlated to the amount of the employer's contribution; the employer pays benefits for every hour the employee works, while the employee earns credits only for the first 1,600 hours of work in a given year. Furthermore, although the employer is never refunded money that has been contributed, the employee can lose credit if he works less than 200 hours in a year or fails to earn credit for four years. Significantly, the employee loses all advantage if he leaves his employment before he attains age 40 and accumulates 10 credits.7 Id., at 49-68.Nor can the value of the funds be measured by the employee's expectation interest in them, for that interest is at best speculative. Employees have no voice in the administration of these plans and thus have no control over the level of funding or the benefits provided. Furthermore, the value of each fund depends on factors that are unpredictable. The value to the Hilyer family of the Health and Welfare Fund depends on its need for the services the Fund provides; the value of the Pension and Disability Fund depends on whether Hilyer's interest vested, see n. 7, supra. And the value of the Training Fund, which was established to insure "adequate trained manpower," see n. 3, supra, and not for the benefit of the individual workers, is even more amorphous.United States ex rel. Sherman v. Carter, supra, is not to the contrary. That case concerned a claim under the Miller Act, 40 U.S.C. 270a et seq., which requires a contractor working for the United States to furnish a surety bond to insure the payment of "sums justly due" employees. When the employer failed to contribute to the union trust funds as required by the employees' collective-bargaining agreement, the union trustees sued the surety on the bond. The Court allowed the trustees to maintain their action, reasoning that "contributions were a part of the compensation for the work to be done by [the] employees." 353 U.S., at 217-218. The Court did not, however, base its conclusion on the notion these contributions were included in wages. Indeed the Court specifically noted that the Miller Act "does not limit recovery on the statutory bond to `wages.'" Id., at 217. A far different situation obtains here, where the Compensation Act specifically limits benefits to the worker's "wages." See also United States v. Embassy Restaurant, Inc., .BWe are aided in our interpretation of 902(13) by the legislative history of the Compensation Act, its structure, and the consistent policies of the agency charged with its enforcement. That history provides abundant indication that Congress did not intend to include employer contributions to benefit plans within the concept of "wages."In 1927, when the Act was enacted, employer-funded fringe benefits were virtually unknown, see United States Bureau of Labor Statistics, Beneficial Activities of American Trade-Unions, Bull. No. 465, pp. 3-4 (Sept. 1928); cf. S. Rep. No. 963, 88th Cong., 2d Sess., 1-2 (1964). Although the Act was amended several times in the ensuing years, including substantial revision in 1972, there is no evidence in the legislative history indicating that Congress seriously considered the possibility that fringe benefits should be taken into account in determining compensation under the Act.8 In comparison, over these same years, Congress has acted on several occasions to include fringe benefits in other statutory schemes, see, e. g., the Davis-Bacon Act, 40 U.S.C. 276a et seq., which was amended in 1964 to bring the United States' wage practices "into conformity with modern wage payment practices." S. Rep. No. 963, supra, at 1.9 From this evidence that Congress was aware of the significant changes in compensation practices, its willingness to amend and enact legislation in view of these changes, and its failure to amend the Compensation Act in the same manner, we can only conclude that Congress did not intend this expanded definition of "wages."10 The structure of the Act lends further support for our conclusion; it uses the concept of wages in several ways: to determine disability and survivors' actual benefits, 33 U.S.C. 908 and 909, and to calculate the minimum and maximum level of benefits, 909(e) (survivors' benefits), 906(b) (disability benefits). In the latter sense, the reference is to the "national average weekly wage." Since we have often stated that a word is presumed to have the same meaning in all subsections of the same statute, see Mohasco Corp. v. Silver, , we would expect the term "wages" to maintain the same meaning throughout the Compensation Act. Accordingly, were we to accept respondent Hilyer's argument, we would also have to conclude that in determining the national average weekly wage, the Secretary of Labor is required to evaluate the benefit provisions of collective-bargaining agreements throughout the Nation. Any attempt to make this determination on a national basis would involve deciding which benefits to include, a subject on which different branches of the Government differ, see Chen, The Growth of Fringe Benefits: Implications for Social Security, 104 Monthly Labor Review 3, 9, n. 6 (Nov. 1981).11 It would also require deciding how the benefits should be evaluated. Evaluating benefits is not simple in "defined contribution" plans such as the one involved in this case; in "defined benefit" plans, where the employer's costs are actuarially determined to provide a certain level of services, the calculation is infinitely harder. See, e. g., the collective-bargaining agreement between General Motors Corp. and the United Auto Workers, cited in App. F to Brief for National Council of Self-Insurers as Amicus Curiae 16a. Without clear indication from Congress that this approach with its attendant problems is required, we decline to adopt it.Finally, we note that, with the exception of the instant case, the Director of Workers' Compensation has consistently taken the position that fringe benefits are not includible in wages, see Duncanson-Harrelson Co. v. Director, OWCP, 686 F.2d 1336 (CA9 1982), and letters filed by the Department of Labor in Levis v. Farmers Export Co., appeal pending, No. 81-4258 (CA5), and Waters v. Farmers Export Co., No. 81-4273 (same). See also U.S. Dept. of Labor, LS/HW Program Memorandum No. 32, June 17, 1968, reprinted in App. to Brief for American Insurance Association as Amicus Curiae 1a-4a. Prior to the Court of Appeals' decision in this case, the Benefits Review Board had uniformly rejected the argument pressed by respondent Hilyer. See, e. g., Waters v. Farmers Export Co., 14 BRBS 102 (1981); Freer v. Duncanson-Harrelson Co., 9 BRBS 888 (1979), rev'd in pertinent part and remanded sub nom. Duncanson-Harrelson Co. v. Director, OWCP, supra; Lawson v. Atlantic & Gulf Grain Stevedores Co., 6 BRBS 770 (1977); Collins v. Todd Shipyards Corp., 5 BRBS 334 (1977). Although not controlling, the consistent practice of the agencies charged with the enforcement and interpretation of the Act are entitled to deference. NLRB v. Hendricks County Rural Electric Membership Corp., ; E. I. du Pont de Nemours & Co. v. Collins, . We discern nothing to suggest that Congress intended the phrase "wages" as used in 902(13) to include employer contributions to fringe benefit plans.IIIRespondent Hilyer argues that, despite these clear indications to the contrary, the remedial policies underlying the Act authorize the agency and require us to expand the meaning of the term to reflect modern employment practices. It is argued that fringe benefits are advantageous to both the worker, who receives tax-free benefits that he otherwise would have to buy with after-tax dollars, and to the employer, who reduces payroll costs by providing his workers with services that they could not on their own purchase with equivalent dollars. Respondent Hilyer contends that the incentive to trade salary for benefits should not be diluted by failing to consider the value of the benefits in determining survivorship and disability rights.There is force to this argument, but a comprehensive statute such as this Act is not to be judicially expanded because of "recent trends." Potomac Electric Power Co. v. Director, OWCP, . There we recognized that the Act was not a simple remedial statute intended for the benefit of the workers. Rather, it was designed to strike a balance between the concerns of the longshoremen and harbor workers on the one hand, and their employers on the other. Employers relinquished their defenses to tort actions in exchange for limited and predictable liability. Employees accept the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail. Id., at 282, and n. 24; H. R. Rep. No. 1767, 69th Cong., 2d Sess., 19-20 (1927); cf. S. Rep. No. 92-1125, p. 5 (1972).Against this background, reinterpretation of the term "wages" would significantly alter the balance achieved by Congress. As noted above, employer-funded benefits were virtually unknown in 1927; as a result, employers have long calculated their compensation costs on the basis of their cash payroll. Since 1927, however, the proportion of costs attributable to fringe benefits has increased significantly. In 1950, these benefits constituted only 5% of compensation costs; their value increased to 10% by 1970 and is over 15% presently. Chen, supra, at 5.12 According to some projections, they could easily constitute more than one-third of labor costs by the middle of the next century, ibid. This shift in the relative value of take-home pay versus fringe benefits dramatically alters the cost factors upon which employers and their insurers have relied in ordering their affairs. If these reasonable expectations are to be altered, that is a task for Congress, J. W. Bateson Co. v. United States ex rel. Board of Trustees, .An expanded definition of wages would also undermine the goal of providing prompt compensation to injured workers and their survivors. Under the Act as presently interpreted, more than 95% of all lost-time injuries are immediately compensated without recourse to the administrative process. In all but 0.1% of the cases, delays averaged less than 10 months. Report by the Comptroller General of the United States, Longshoremen's and Harbor Workers' Compensation Act Needs Amending 31, 41 (Apr. 1982).13 This situation could well change drastically if every worker could challenge the manner in which his own wages were calculated or the basis used by the Secretary to determine the national average weekly wage.14 The language of this statute, Congress' failure to include other benefits that were common in 1972, when the statute was amended, the longstanding administrative interpretation of the Act, and the policies underlying it, all combine to support our conclusion that Congress did not intend to include employer contributions to union trust funds in the Act's term "wages." Accordingly, the judgment of the Court of Appeals is Reversed. |
0 | In passing through Customs at Los Angeles International Airport, respondent checked the "no" box of the usual form with respect to the question whether he or any family member was carrying over $5,000. However, after being questioned by customs officials and informed that he would be subjected to a search, he admitted that he and his wife were carrying over $20,000 cash, which they then produced. Respondent was subsequently convicted and sentenced to consecutive sentences in Federal District Court under two counts in an indictment charging him with the felony of making a false statement to a United States agency in violation of 18 U.S.C. 1001, and with the misdemeanor of willfully failing to report that he was carrying more than $5,000 into the United States, in violation of 31 U.S.C. 1058, 1101 (1976 ed.). Both counts were based on the same conduct - answering "no" to the customs form question. However, the felony false statement conviction was reversed by the Court of Appeals, which held that Congress intended someone in respondent's position to be punished only for the currency reporting misdemeanor. The court applied the rule of Blockburger v. United States, , for determining whether Congress intended to permit cumulative punishment - that is, whether each statutory provision requires proof of a fact which the other does not - and concluded that every currency reporting offense necessarily entails a violation of the false statement law.Held: The Court of Appeals misapplied the Blockburger rule. Proof of a currency reporting violation does not necessarily include proof of a false statement offense, since 1001 proscribes the nondisclosure of a material fact only if the fact is concealed "by any trick, scheme, or device," and a person could, without employing a "trick, scheme, or device," simply and willfully fail to file a currency disclosure report. There is no evidence that Congress did not intend to allow separate punishment for the two different offenses here. Moreover, Congress' intent to allow punishment for both offenses is shown by the fact that the statutes are directed to separate evils. Certiorari granted; 726 F.2d 1320, reversed in part and remanded. PER CURIAM.On March 1, 1980, respondent Charles Woodward and his wife arrived at Los Angeles International Airport on a flight from Brazil. In passing through Customs, respondent was handed the usual form that included the following question:"Are you or any family member carrying over $5,000 (or the equivalent value in any currency) in monetary instruments such as coin, currency, traveler's checks, money orders, or negotiable instruments in bearer form?" Respondent checked the "no" box.After questioning respondent for a brief period, customs officials decided to search respondent and his wife. As he was being escorted to a search room, respondent told an official that he and his wife were carrying over $20,000 in cash. Woodward removed approximately $12,000 from his boot; another $10,000 was found in a makeshift money belt concealed under his wife's clothing.Woodward was indicted on charges of making a false statement to an agency of the United States, 18 U.S.C. 1001,1 and willfully failing to report that he was carrying in excess of $5,000 into the United States, 84 Stat. 1121, 1122, 31 U.S.C. 1058, 1101 (1976 ed.).2 The same conduct - answering "no" to the question whether he was carrying more than $5,000 into the country - formed the basis of each count. A jury convicted Woodward on both charges; he received a sentence of six months in prison on the false statement count, and a consecutive 3-year term of probation on the currency reporting count. During the proceedings in the District Court, the respondent never asserted that Congress did not intend to permit cumulative punishment for conduct violating the false statement and the currency reporting statutes.The United States Court of Appeals for the Ninth Circuit, after inviting briefs on the subject, held that respondent's conduct could not be punished under both 18 U.S.C. 1001 and 31 U.S.C. 1058, 1101 (1976 ed.). See 726 F.2d 1320 (1983). The court applied the rule of statutory construction contained in Blockburger v. United States, - "`whether each provision requires proof of a fact which the other does not'" - and held that the false statement felony was a lesser included offense of the currency reporting misdemeanor. 726 F.2d, at 1323. In other words, every violation of the currency reporting statute necessarily entails a violation of the false statement law.3 The court reasoned that a willful failure to file a required report is a form of concealment prohibited by 18 U.S.C. 1001. Concluding that Congress presumably intended someone in respondent's position to be punished only under the currency reporting misdemeanor, the Court of Appeals reversed respondent's felony conviction for making a false statement. See 726 F.2d, at 1327.The Court of Appeals plainly misapplied the Blockburger rule for determining whether Congress intended to permit cumulative punishment; proof of a currency reporting violation does not necessarily include proof of a false statement offense. Section 1001 proscribes the nondisclosure of a material fact only if the fact is "conceal[ed] ... by any trick, scheme, or device." (Emphasis added.)4 A person could, without employing a "trick, scheme, or device," simply and willfully fail to file a currency disclosure report. A traveler who enters the country and passes through Customs prepared to answer questions truthfully, but is never asked whether he is carrying over $5,000 in currency, might nonetheless be subject to conviction under 31 U.S.C. 1058 (1976 ed.) for willfully transporting money without filing the required currency report. However, because he did not conceal a material fact by means of a "trick, scheme, or device," (and did not make any false statement) his conduct would not fall within 18 U.S.C. 1001.5 There is no evidence in 18 U.S.C. 1001 and 31 U.S.C. 1058, 1101 (1976 ed.) that Congress did not intend to allow separate punishment for the two different offenses. See generally Albernaz v. United States, (1981); Missouri v. Hunter, . Sections 1058 and 1101 were enacted by Congress in 1970 as part of the Currency and Foreign Transactions Reporting Act, Pub. L. 91-508, Tit. II, 84 Stat. 1118 et seq. Section 203(k) of that Act expressly provided:"For the purposes of section 1001 of title 18, United States Code, the contents of reports required under any provision of this title are statements and representations in matters within the jurisdiction of an agency of the United States." 31 U.S.C. 1052(k) (1976 ed.).6 It is clear that in passing the currency reporting law, Congress' attention was drawn to 18 U.S.C. 1001, but at no time did it suggest that the two statutes could not be applied together. We cannot assume, therefore, that Congress was unaware that it had created two different offenses permitting multiple punishment for the same conduct. See Albernaz, supra, at 341-342.Finally, Congress' intent to allow punishment under both 18 U.S.C. 1001 and 31 U.S.C. 1058, 1101 (1976 ed.) is shown by the fact that the statutes "are directed to separate evils." See Albernaz, supra, at 343. The currency reporting statute was enacted to develop records that would "have a high degree of usefulness in criminal, tax, or regulatory investigations." 31 U.S.C. 1051 (1976 ed.). The false statement statute, on the other hand, was designed "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described." United States v. Gilliland, .All guides to legislative intent reveal that Congress intended respondent's conduct to be punishable under both 18 U.S.C. 1001, and 31 U.S.C. 1058, 1101 (1976 ed.). Accordingly, the petition for a writ of certiorari is granted, and that part of the Court of Appeals' judgment reversing respondent's 18 U.S.C. 1001 conviction is reversed. It is so ordered. |
8 | Where a domestic railroad enters into a joint through international rate covering transportation from the United States to Canada, the Interstate Commerce Commission has jurisdiction in a reparations proceeding to determine the reasonableness of the joint through rate and to order the carrier performing the domestic service to pay reparations in the entire amount by which that rate is unreasonable. News Syndicate Co. v. New York Central R. Co., , followed. 342 F.2d 563, reversed.Charles B. Myers argued the cause and filed briefs for petitioner.Harvey Huston argued the cause and filed a brief for respondents.Louis F. Claiborne, by special leave of Court, argued the cause for the United States, as amicus curiae. On the brief were Solicitor General Marshall, Assistant Attorney General Turner, Richard A. Posner and Robert B. Hummel. Leonard S. Goodman argued the cause for the Interstate Commerce Commission, as amicus curiae, urging reversal. With him on the brief was Robert W. Ginnane.PER CURIAM.This case concerns the power of the Interstate Commerce Commission in reparations proceedings to determine the reasonableness of a joint through international freight rate. The American railroad respondents and their connecting carriers delivered 131 cars of potash from Carlsbad and Loving, New Mexico, to petitioner's plants in Canada. Petitioner was charged and it paid a joint through international rate which it later attacked as unreasonable in a reparations proceeding before the Commission. Finding the rate to be unreasonable, the Commission ordered reparations in the amount of the difference between the rate charged and the rate which would have been reasonable at the time. Respondents refused to pay part of this amount on the theory that it represented an alleged overcharge for the Canadian leg of the trip over which the Commission had no jurisdiction under the applicable statute. This action followed in the District Court to collect the unpaid amount. The District Court found for the petitioner, the Court of Appeals reversed, 342 F.2d 563, and we granted certiorari, .The provisions of the Interstate Commerce Act apply not only to transportation within the United States but to transportation from or to any place in the United States to or from a foreign country "but only insofar as such transportation ... takes place within the United States." 24 Stat. 379, as amended, 49 U.S.C. 1 (1). The Court of Appeals held that the Commission in this case was without jurisdiction to determine the reasonableness of freight rates for transportation taking place in Canada and hence was without power to order reparations with respect to the Canadian portion of the trip. The respondents and the United States, the latter differing with the Commission in this case, take a similar view. As an original matter there might well be considerable merit in this position. But the contrary view of the Commission is one of long standing, see Black Horse Tobacco Co. v. Illinois Central R. Co., 17 I. C. C. 588 (1910), and Citizens Gas & Coke Utility v. Canadian Nat. Rys., 325 I. C. C. 527 (1965), and one which this Court has upheld on more than one occasion. News Syndicate Co. v. New York Central R. Co., , squarely held that where a carrier performing transportation within the United States enters into a joint through international rate covering transportation in the United States and abroad, the Commission does have jurisdiction to determine the reasonableness of the joint through rate and to order the carrier performing the domestic service to pay reparations in the amount by which that rate is unreasonable. Lewis-Simas-Jones Co. v. Southern Pacific Co., , and Great Northern R. Co. v. Sullivan, , are in accord. The Court of Appeals and respondents would distinguish these cases, but we think the differences relied on are insubstantial. Indeed, the United States quite candidly requests that we reconsider these older cases and so narrow the powers of the Commission with respect to joint through international rates. It is not shown, however, that the long-standing construction of the statute by both the Commission and this Court has produced any particularly unfortunate consequences and Congress, which could easily change the rule, has not yet seen fit to intervene. In these circumstances, we shall not disturb the construction previously given the statute by this Court, and the decision of the Court of Appeals must be Reversed.MR. JUSTICE DOUGLAS, dissenting.An Act of Congress gives the Interstate Commerce Commission jurisdiction over transportation from or to any place in the United States to or from a foreign country "but only insofar as such transportation ... takes place within the United States." 24 Stat. 379, as amended, 49 U.S.C. 1 (1). How that can be read, "Whether or not such transportation ... takes place within the United States" remains a mystery. News Syndicate Co. v. New York Central R. Co., , and Lewis-Simas-Jones Co. v. Southern Pacific Co., , actually decided something less. In News Syndicate there was a through rate from a point in Canada to New York City; but the carrier had failed to establish a rate from the international border to New York City. The Court refused to let the jurisdiction of the Commission be defeated in that way and allowed it to determine the reasonableness of the through rate. 275 U.S., at 187. In the Lewis-Simas-Jones case the Court also emphasized that no tariff applicable "to the American part of the transportation of an international shipment on a through bill of lading" had been established "as required by the Act." 283 U.S., at 663. Those cases were explained in Great Northern R. Co. v. Sullivan, ."In each, shipments moved from an adjacent country into the United States on through rates made by joint action of the participating foreign and American carriers. The American carrier, having violated the Act by failure to file any tariff to cover its part of the transportation, collected freight charges found to be excessive and, as one of two or more joint tort-feasors, was held liable to the extent that the charges it exacted were in excess of what the commission ascertained to be just and reasonable. But here the charges collected were not excessive, and confessedly the same amounts lawfully might have been collected without injury or damage to plaintiff if only the connecting carriers had imposed the charges by means of `joint' instead of the `combination' through rates that they did establish." In the present case rates from Carlsbad and Loving, New Mexico, to the Canadian border points had been established. 300 I. C. C. 87. The issues presented in News Syndicate and Lewis-Simas-Jones are therefore not offered here. Stare decisis is an important principle in dealing with statutory law,1 though even so we have not always placed "on the shoulders of Congress the burden of the Court's own error." Girouard v. United States, .2 As we said in Toucey v. New York Life Ins. Co., :"There is no occasion here to regard the silence of Congress as more commanding than its own plainly and unmistakably spoken words. This is not a situation where Congress has failed to act after having been requested to act or where the circumstances are such that Congress would ordinarily be expected to act... . To find significance in Congressional nonaction under these circumstances is to find significance where there is none." And see Helvering v. Hallock, . Compare Mabee v. White Plains Publishing Co., . Nor do we have here a precedent "around which, by the accretion of time and the response of affairs, substantial interests have established themselves." Helvering v. Hallock, supra, at 119.Moreover, we need not be slaves to a precedent by treating it as standing for more than it actually decided nor by subtly eroding it in sophisticated ways. See Radin, The Trail of the Calf, 32 Cornell L. Q. 137, 143 (1946). It is enough that we do not approve "of the doctrinal generalization which the previous court used" (ibid.) and confine the precedent to what it actually decided. Certainly we should not extend the range of a precedent beyond its generating reason, especially when another policy, here the plain words of an Act of Congress, will be impaired by doing so.I would affirm this judgment. |
8 | After he was diagnosed with small-cell lung cancer, respondent Joiner sued in Georgia state court, alleging, inter alia , that his disease was"promoted" by his workplace exposure to chemical "PCBs" and derivative "furans" and "dioxins" that were manufactured by, or present in materials manufactured by, petitioners. Petitioners removed the case to federal court and moved for summary judgment. Joiner responded with the depositions of expert witnesses, who testified that PCBs, furans, and dioxins can promote cancer, and opined that Joiner' exposure to those chemicals was likely responsible for his cancer. The District Court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCBs, but granted summary judgment for petitioners because (1) there was no genuine issue as to whether he had been exposed to furans and dioxins, and (2) his experts' testimony had failed to show that there was a link between exposure to PCBs and small-cell lung cancer and was therefore inadmissible because it did not rise above "subjective belief or unsupported speculation." In reversing, the Eleventh Circuit applied "a particularly stringent standard of review" to hold that the District Court had erred in excluding the expert testimony.Held: 1. Abuse of discretion-the standard ordinarily applicable to review of evidentiary rulings-is the proper standard by which to review a district court's decision to admit or exclude expert scientific evidence. Contrary to the Eleventh Circuit's suggestion, Daubert v. Merrell Dow Pharmaceuticals, Inc., , did not somehow alter this general rule in the context of a district court's decision to exclude scientific evidence. Daubert did not address the appellate review standard for evidentiary rulings at all, but did indicate that, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than did pre-existing law, they leave in place the trial judge's "gatekeeper" role of screening such evidence to ensure that it is not only relevant, but reliable. Id., at 589. A court of appeals applying "abuse of discretion" review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings which disallow it. Compare Beech Aircraft Corp. v. Rainey, , with United States v. Abel, . This Court rejects Joiner's argument that because the granting of summary judgment in this case was "outcome determinative," it should have been subjected to a more searching standard of review. On a summary judgment motion, disputed issues of fact are resolved against the moving party-here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse of discretion standard. In applying an overly "stringent" standard, the Eleventh Circuit failed to give the trial court the deference that is the hallmark of abuse of discretion review. Pp. 4-5.2. A proper application of the correct standard of review indicates that the District Court did not err in excluding the expert testimony at issue. The animal studies cited by respondent's experts were so dissimilar to the facts presented here- i.e., the studies involved infant mice that developed alveologenic adenomas after highly concentrated, massive doses of PCBs were injected directly into their peritoneums or stomachs, whereas Joiner was an adult human whose small-cell carcinomas allegedly resulted from exposure on a much smaller scale-that it was not an abuse of discretion for the District Court to have rejected the experts' reliance on those studies. Nor did the court abuse its discretion in concluding that the four epidemiological studies on which Joiner relied were not a sufficient basis for the experts' opinions, since the authors of two of those studies ultimately were unwilling to suggest a link between increases in lung cancer and PCB exposure among the workers they examined, the third study involved exposure to a particular type of mineral oil not necessarily relevant here, and the fourth involved exposure to numerous potential carcinogens in addition to PCBs. Nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. Pp. 6-9.3. These conclusions, however, do not dispose of the entire case. The Eleventh Circuit reversed the District Court's conclusion that Joiner had not been exposed to furans and dioxins. Because petitioners did not challenge that determination in their certiorari petition, the question whether exposure to furans and dioxins contributed to Joiner's cancer is still open. Pp. 9-10.78 F. 3d 524, reversed and remanded.REHNQUIST , C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which O'CONNOR , SCALIA , KENNEDY , SOUTER , THOMAS , GINSBURG , and BREYER , JJ., joined. BREYER , J., filed a concurring opinion. STEVENS , J., filed an opinion concurring in part and dissenting in part. 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.U.S. Supreme Court No. 96-188GENERAL ELECTRIC COMPANY, ET AL ., PETI-TIONERS v. ROBERT K. JOINER ET UX . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT[December 15, 1997]CHIEF JUSTICE REHNQUIST delivered the opinion of theCourt.We granted certiorari in this case to determine what standard an appellate court should apply in reviewing a trial court's decision to admit or exclude expert testimony under Daubert v . Merrell Dow Pharmaceuticals, Inc., . We hold that abuse of discretion is the appropriate standard. We apply this standard and conclude that the District Court in this case did not abuse its discretion when it excluded certain proffered expert testimony. IRespondent Robert Joiner began work as an electrician in the Water & Light Department of Thomasville, Georgia (City) in 1973. This job required him to work with and around the City's electrical transformers, which used a mineral-based dielectric fluid as a coolant. Joiner often had to stick his hands and arms into the fluid to make repairs. The fluid would sometimes splash onto him, occasionally getting into his eyes and mouth. In 1983 the City discovered that the fluid in some of the transformers was contaminated with polychlorinated biphenyls (PCBs). PCBs are widely considered to be hazardous to human health. Congress, with limited exceptions, banned the production and sale of PCBs in 1978. See 90 Stat. 2020, 15 U.S.C. § 2605(e)(2)(A).Joiner was diagnosed with small cell lung cancer in 1991. He 1sued petitioners in Georgia state court the following year. Petitioner Monsanto manufactured PCBs from 1935 to 1977; petitioners General Electric and Westinghouse Electric manufactured transformers and dielectric fluid. In his complaint Joiner linked his development of cancer to his exposure to PCBs and their derivatives, polychlorinated dibenzofurans (furans) and polychlorinated dibenzodioxins (dioxins). Joiner had been a smoker for approximately eight years, his parents had both been smokers, and there was a history of lung cancer in his family. He was thus perhaps already at a heightened risk of developing lung cancer eventually. The suit alleged that his exposure to PCBs "promoted" his cancer; had it not been for his exposure to these substances, his cancer would not have developed for many years, if at all.Petitioners removed the case to federal court. Once there, they moved for summary judgment. They contended that (1) there was no evidence that Joiner suffered significant exposure to PCBs, furans, or dioxins, and (2) there was no admissible scientific evidence that PCBs promoted Joiner's cancer. Joiner responded that there were numerous disputed factual issues that required resolution by a jury. He relied largely on the testimony of expert witnesses. In depositions, his experts had testified that PCBs alone can promote cancer and that furans and dioxins can also promote cancer. They opined that since Joiner had been exposed to PCBs, furans, and dioxins, such exposure was likely responsible for Joiner's cancer.The District Court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCBs. But it nevertheless granted summary judgment for petitioners because (1) there was no genuine issue as to whether Joiner had been exposed to furans and dioxins, and (2) the testimony of Joiner's experts had failed to show that there was a link between exposure to PCBs and small cell lung cancer. The court believed that the testimony of respondent's experts to the contrary did not rise above "subjective belief or unsupported speculation." 864 F. Supp. 1310, 1329 (ND Ga. 1994). Their testimony was therefore inadmissible.The Court of Appeals for the Eleventh Circuit reversed. 78 F. 3d 524 (1996). It held that "[b]ecause the Federal Rules of Evidence governing expert testimony display a preference for admissibility, we apply a particularly stringent standard of review to the trial judge's exclusion of expert testimony." Id. at 529. Applying that standard, the Court of Appeals held that the District Court had erred in excluding the testimony of Joiner's expert witnesses. The District Court had made two fundamental errors. First, it excluded the experts' testimony because it "drew different conclusions from the research than did each of the experts." The Court of Appeals opined that a district court should limit its role to determining the "legal reliability of proffered expert testimony, leaving the jury to decide the correctness of competing expert opinions." Id. at 533. Second, the District Court had held that there was no genuine issue of material fact as to whether Joiner had been exposed to furans and dioxins. This was also incorrect, said the Court of Appeals, because testimony in the record supported the proposition that there had been such exposure.We granted petitioners' petition for a writ of certiorari_____ (1997), and we now reverse. IIPetitioners challenge the standard applied by the Court of Appeals in reviewing the District Court's decision to exclude respondent's experts' proffered testimony. They argue that that court should have applied traditional "abuse of discretion" review. Respondent agrees that abuse of discretion is the correct standard of review. He contends, however, that the Court of Appeals applied an abuse of discretion standard in this case. As he reads it, the phrase "particularly stringent" announced no new standard of review. It was simply an acknowledgement that an appellate court can and will devote more resources to analyzing district court decisions that are dispositive of the entire litigation. All evidentiary decisions are reviewed under an abuse of discretion standard. He argues, however, that it is perfectly reasonable for appellate courts to give particular attention to those decisions that are outcome-determinative.We have held that abuse of discretion is the proper standard of review of a district court's evidentiary rulings. Old Chief v. United States ____, ____ n. 1 (1997) (slip op., at 1-2, n.1), United States v. Abel , . Indeed, our cases on the subject go back as far as Spring Co . v. Edgar , where we said that "cases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous." The Court of Appeals suggested that Daubert somehow altered this general rule in the context of a district court's decision to exclude scientific evidence. But Daubert did not address the standard of appellate review for evidentiary rulings at all. It did hold that the "austere" Frye standard of "general acceptance" had not been carried over into the Federal Rules of Evidence. But the opinion also said:"That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."509 U.S., at 589 (footnote omitted).Thus, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye , they leave in place the "gatekeeper" role of the trial judge in screening such evidence. A court of appeals applying "abuse of discretion" review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings which disallow it. Compare Beech Aircraft Corp v. Rainey , (applying abuse of discretion review to a lower court's decision to exclude evidence) with United States v . Abel , supra at 54 (applying abuse of discretion review to a lower court's decision to admit evidence). We likewise reject respondent's argument that because the granting of summary judgment in this case was "outcome determinative," it should have been subjected to a more searching standard of review. On a motion for summary judgment, disputed issues of fact are resolved against the moving party-here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse of discretion standard.We hold that the Court of Appeals erred in its review of the exclusion of Joiner's experts' testimony. In applying an overly "stringent" review to that ruling, it failed to give the trial court the deference that is the hallmark of abuse of discretion review. See, e.g. , Koon v. United States ____, ____ (1996)(slip op., at 14-15). IIIWe believe that a proper application of the correct standard of review here indicates that the District Court did not abuse its discretion. Joiner's theory of liability was that his exposure to PCBs and their derivatives "promoted" his development of small cell lung cancer. In support of that theory he proffered the deposition testimony of expert witnesses. Dr. Arnold Schecter testified that he believed it "more likely than not that Mr. Joiner's lung cancer was causally linked to cigarette smoking and PCB exposure." App. at 107. Dr. Daniel Teitelbaum testified that Joiner's "lung cancer was caused by or contributed to in a significant degree by the materials with which he worked." Id. at 140.Petitioners contended that the statements of Joiner's experts regarding causation were nothing more than speculation. Petitioners criticized the testimony of the experts in that it was "not supported by epidemiological studies ... [and was] based exclusively on isolated studies of laboratory animals." Joiner responded by claiming that his experts had identified "relevant animal studies which support their opinions." He also directed the court's attention to four epidemiological studies 2on which his experts had relied.The District Court agreed with petitioners that the animal studies on which respondent's experts relied did not support his contention that exposure to PCBs had contributed to his cancer. The studies involved infant mice that had developed cancer after being exposed to PCBs. The infant mice in the studies had had massive doses of PCBs injected directly into their peritoneums 3or stomachs. Joiner was an adult human being whose alleged exposure to PCBs was far less than the exposure in the animal studies. The PCBs were injected into the mice in a highly concentrated form. The fluid with which Joiner had come into contact generally had a much smaller PCB concentration of between 0-500 parts per million. The cancer that these mice developed was alveologenic adenomas; Joiner had developed small-cell carcinomas. No study demonstrated that adult mice developed cancer after being exposed to PCBs. One of the experts admitted that no study had demonstrated that PCBs lead to cancer in any other species.Respondent failed to reply to this criticism. Rather than explaining how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies, respondent chose "to proceed as if the only issue [was] whether animal studies can ever be a proper foundation for an expert's opinion." Joiner , 864 F. Supp. at 1324. Of course, whether animal studies can ever be a proper foundation for an expert's opinion was not the issue. The issue was whether these experts' opinions were sufficiently supported by the animal studies on which they purported to rely. The studies were so dissimilar to the facts presented in this litigation that it was not an abuse of discretion for the District Court to have rejected the experts' reliance on them.The District Court also concluded that the four epidemiological studies on which respondent relied were not a sufficient basis for the experts' opinions. The first such study involved workers at an Italian capacitor 4plant who had been exposed to PCBs. Bertazzi, Riboldi, Pesatori, Radice, & Zocchetti, Cancer Mortality of Capacitor Manu facturing Workers, 11 American Journal of Industrial Medicine 165 (1987). The authors noted that lung cancer deaths among ex-employees at the plant were higher than might have been expected, but concluded that "there were apparently no grounds for associating lung cancer deaths (although increased above expectations) and exposure in the plant." Id. at 172. Given that Bertazzi et al . were unwilling to say that PCB exposure had caused cancer among the workers they examined, their study did not support the experts' conclusion that Joiner's exposure to PCBs caused his cancer.The second study followed employees who had worked at Monsanto's PCB production plant. J. Zack & D. Munsch, Mortality of PCB Workers at the Monsanto Plant in Sauget, Illinois (Dec. 14, 1979)(unpublished report), 3 Rec., Doc. No. 11. The authors of this study found that the incidence of lung cancer deaths among these workers was somewhat higher than would ordinarily be expected. The increase, however, was not statistically significant and the authors of the study did not suggest a link between the increase in lung cancer deaths and the exposure to PCBs.The third and fourth studies were likewise of no help. The third involved workers at a Norwegian cable manufacturing company who had been exposed to mineral oil. Ronneberg, Andersen, Skyberg, Mortality and Incidence of Cancer Among Oil-Exposed Workers in a Norwegian Cable Manufacturing Company, 45 British Journal of Industrial Medicine 595 (1988). A statistically significant increase in lung cancer deaths had been observed in these workers. The study, however, (1) made no mention of PCBs and (2) was expressly limited to the type of mineral oil involved in that study, and thus did not support these experts' opinions. The fourth and final study involved a PCB-exposed group in Japan that had seen a statistically significant increase in lung cancer deaths. Kuratsune, Nakamura, Ikeda, & Hirohata, Analysis of Deaths Seen Among Pa tients with Yusho-A Preliminary Report, 16 Chemosphere, Nos. 8/9, 2085 (1987). The subjects of this study, however, had been exposed to numerous potential carcinogens, including toxic rice oil that they had ingested.Respondent points to Daubert 's language that the "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." 509 U.S., at 595. He claims that because the District Court's disagreement was with the conclusion that the experts drew from the studies, the District Court committed legal error and was properly reversed by the Court of Appeals. But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals, Inc ., 959 F. 2d 1349, 1360 (CA 6), cert. denied, . That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.We hold, therefore, that abuse of discretion is the proper standard by which to review a district court's decision to admit or exclude scientific evidence. We further hold that, because it was within the District Court's discretion to conclude that the studies upon which the experts relied were not sufficient, whether individually or in combination, to support their conclusions that Joiner's exposure to PCBs contributed to his cancer, the District Court did not abuse its discretion in excluding their testimony. These conclusions, however, do not dispose of this entire case.Respondent's original contention was that his exposure to PCBs, furans, and dioxins contributed to his cancer. The District Court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCBs, but concluded that there was no genuine issue as to whether he had been exposed to furans and dioxins. The District Court accordingly never explicitly considered if there was admissible evidence on the question whether Joiner's alleged exposure to furans and dioxins contributed to his cancer. The Court of Appeals reversed the District Court's conclusion that there had been no exposure to furans and dioxins. Petitioners did not challenge this determination in their petition to this Court. Whether Joiner was exposed to furans and dioxins, and whether if there was such exposure, the opinions of Joiner's experts would then be admissible, remain open questions. We accordingly reverse the judgment of the Court of Appeals and remand this case for proceedings consistent with this opinion. It is so ordered.U.S. Supreme Court No. 96-188GENERAL ELECTRIC COMPANY, ET AL ., PETI-TIONERS v. ROBERT K. JOINER ET UX . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT[December 15, 1997]JUSTICE BREYER , concurring.The Court's opinion, which I join, emphasizes Daubert 's statement that a trial judge, acting as "gatekeeper, " must " 'ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.' " Ante , at 5 (quoting Daubert v . Merrell Dow Pharmaceuticals, Inc., ). This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer-particularly when a case arises in an area where the science itself is tentative or uncertain, or where testimony about general risk levels in human beings or animals is offered to prove individual causation. Yet, as amici have pointed out, judges are not scientists and do not have the scientific training that can facilitate the making of such decisions. See, e.g., Brief for Trial Lawyers for Public Justice as Amicus Curiae 15; Brief for The New England Journal of Medicine et al. as Amici Curiae 2 ("Judges ... are generally not trained scientists ").Of course, neither the difficulty of the task nor any comparative lack of expertise can excuse the judge from exercising the "gatekeeper" duties that the Federal Rules impose-determining, for example, whether particular expert testimony is reliable and "will assist the trier of fact," Fed. Rule Evid. 702, or whether the "probative value" of testimony is substantially outweighed by risks of prejudice, confusion or waste of time. Fed. Rule Evid. 403. To the contrary, when law and science intersect, those duties often must be exercised with special care.Today's toxic tort case provides an example. The plaintiff in today's case says that a chemical substance caused, or promoted, his lung cancer. His concern, and that of others, about the causes of cancer is understandable, for cancer kills over one in five Americans. See U. S. Dept. of Health and Human Services, National Center for Health Statistics, Health United States 1996-97 and Injury Chartbook 117 (1997) (23.3% of all deaths in 1995). Moreover, scientific evidence implicates some chemicals as potential causes of some cancers. See, e.g., U. S. Dept. of Health and Human Services, Public Health Service, National Toxicology Program, 1 Seventh Annual Report on Carcinogens, pp. v-vi (1994). Yet modern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may, therefore, prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability, which can generate strong financial incentives to reduce, or to eliminate, production, points towards the right substances and does not destroy the wrong ones. It is, thus, essential in this science-related area that the courts administer the Federal Rules of Evidence in order to achieve the "end[s]" that the Rules themselves set forth, not only so that proceedings may be "justly determined," but also so "that the truth may be ascertained." Fed. Rule Evid. 102. I therefore want specially to note that, as cases presenting significant science-related issues have increased in number, see Judicial Conference of the United States, Report of the Federal Courts Study Committee 97 (Apr. 2, 1990) ("Economic, statistical, technological, and natural and social scientific data are becoming increasingly important in both routine and complex litigation"), judges have increasingly found in the Rules of Evidence and Civil Procedure ways to help them overcome the inherent difficulty of making determinations about complicated scientific or otherwise technical evidence. Among these techniques are an increased use of Rule 16's pretrial conference authority to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of special masters and specially trained law clerks. See J. Cecil & T. Willging, CourtAppointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, pp. 83-88 (1993); J. Weinstein, Individual Justice in Mass Tort Litigation 107110 (1995); cf. Kaysen, In Memoriam: Charles E. Wyzanski, Jr., 100 Harv. L. Rev. 713, 713-715 (1987) (discussing a judge's use of an economist as a law clerk in United States v . United Shoe Machinery Corp. , 110 F. Supp. 295 (D Mass 1953), aff'd, ). In the present case, the New England Journal of Medicine has filed an amici brief "in support of neither petitioners nor respondents" in which the Journal writes:"[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be strongly encouraged to make greater use of their inherent authority ... to appoint experts ... . Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science."Brief for The New England Journal of Medicine 18-19; cf. Fed. Rule Evid. 706 (court may "on its own motion or on the motion of any party" appoint an expert to serve on behalf of the court, and this expert may be selected as "agreed upon by the parties" or chosen by the court); see also Weinstein, supra, at 116 (a court should sometimes "go beyond the experts proffered by the parties" and "utilize its powers to appoint independent experts under Rule 706 of the Federal Rules of Evidence"). Given this kind of offer of cooperative effort, from the scientific to the legal community, and given the various Rules-authorized methods for facilitating the courts' task, it seems to me that Daubert 's gatekeeping requirement will not prove inordinately difficult to implement; and that it will help secure the basic objectives of the Federal Rules of Evidence; which are, to repeat, the ascertainment of truth and the just determination of proceedings. Fed. Rule Evid. 102. U.S. Supreme Court No. 96-188 -------- ., PETI-TIONERS v. ROBERT K. JOINER ET UX . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT[December 15, 1997]JUSTICE STEVENS , concurring in part and dissenting inpart.The question that we granted certiorari to decide is whether the Court of Appeals applied the correct standard of review. That question is fully answered in Parts I and II of the Court's opinion. Part III answers the quite different question whether the District Court properly held that the testimony of plaintiff 's expert witnesses was inadmissible. Because I am not sure that the parties have adequately briefed that question, or that the Court has adequately explained why the Court of Appeals' disposition was erroneous, I do not join Part III. Moreover, because a proper answer to that question requires a study of the record that can be performed more efficiently by the Court of Appeals than by the nine members of this Court, I would remand the case to that court for application of the proper standard of review.One aspect of the record will illustrate my concern. As the Court of Appeals pointed out, Joiner's experts relied on "the studies of at least thirteen different researchers, and referred to several reports of the World Health Organization that address the question of whether PCBs cause cancer." 78 F. 3d 524, 533 (CA11 1996). Only one of those studies is in the record, and only six of them were dis cussed in the District Court opinion. Whether a fair appraisal of either the methodology or the conclusions of Joiner's experts can be made on the basis of such an incomplete record is a question that I do not feel prepared to answer.It does seem clear, however, that the Court has not adequately explained why its holding is consistent with Federal Rule of Evidence 702, 1as interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., . 2 In general, scientific testimony that is both relevant and reliable must be admitted and testimony that is irrelevant or unreliable must be excluded. Id. , at 597. In this case, the District Court relied on both grounds for exclusion.The relevance ruling was straightforward. The District Court correctly reasoned that an expert opinion that exposure to PCBs, "furans" and "dioxins" together may cause lung cancer would be irrelevant unless the plaintiff had been exposed to those substances. Having already found that there was no evidence of exposure to furans and dioxins, 864 F. Supp. 1310, 1318-1319 (ND Ga. 1994), it necessarily followed that this expert opinion testimony was inadmissible. Correctly applying Daubert, the District Court explained that the experts' testimony "mani- festly does not fit the facts of this case, and is therefore inadmissible." 864 F. Supp., at 1322. Of course, if the evidence raised a genuine issue of fact on the question of Joiner's exposure to furans and dioxins-as the Court of Appeals held that it did-then this basis for the ruling on admissibility was erroneous, but not because the district judge either abused her discretion or misapplied the law. 3The reliability ruling was more complex and arguably is not faithful to the statement in Daubert that "[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." 509 U.S., at 595. Joiner's experts used a "weight of the evidence" methodology to assess whether Joiner's exposure to transformer fluids promoted his lung cancer. 4They did not suggest that any one study provided adequate support for their conclusions, but instead relied on all the studies taken together (along with their interviews of Joiner and their review of his medical records). The District Court, however, examined the studies one by one and concluded that none was sufficient to show a link between PCBs and lung cancer. 864 F. Supp., at 1324-1326. The focus of the opinion was on the separate studies and the conclusions of the experts, not on the experts' methodology. Id. , at 1322 ("Defendants ... persuade the court that Plaintiffs' expert testimony would not be admissible ... by attacking the conclusions that Plaintiffs' experts draw from the studies they cite").Unlike the District Court, the Court of Appeals expressly decided that a "weight of the evidence" methodology was scientifically acceptable. 5To this extent, the Court of Appeals' opinion is persuasive. It is not intrinsically "unscientific" for experienced professionals to arrive at a conclusion by weighing all available scientific evidencethis is not the sort of "junk science" with which Daubert was concerned. 6After all, as Joiner points out, the Environmental Protection Agency (EPA) uses the same methodology to assess risks, albeit using a somewhat different threshold than that required in a trial. Brief for Respondents 40-41 (quoting EPA, Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33992, 33996 (1986)). Petitioners' own experts used the same scientific approach as well. 7And using this methodology, it would seem that an expert could reasonably have concluded that the study of workers at an Italian capacitor plant, coupled with data from Monsanto's study and other studies, raises an inference that PCBs promote lung cancer. 8The Court of Appeals' discussion of admissibility is faithful to the dictum in Daubert that the reliability inquiry must focus on methodology, not conclusions. Thus, even though I fully agree with both the District Court's and this Court's explanation of why each of the studies on which the experts relied was by itself unpersuasive, a critical question remains unanswered: When qualified experts have reached relevant conclusions on the basis of an acceptable methodology, why are their opinions inadmissible? Daubert quite clearly forbids trial judges from assessing the validity or strength of an expert's scientific conclusions, which is a matter for the jury. 9Because I am per- suaded that the difference between methodology and conclusions is just as categorical as the distinction between means and ends, I do not think the statement that "conclusions and methodology are not entirely distinct from one another," ante , at 9, is either accurate or helps us answer the difficult admissibility question presented by this record.In any event, it bears emphasis that the Court has not held that it would have been an abuse of discretion to admit the expert testimony. The very point of today's holding is that the abuse of discretion standard of review applies whether the district judge has excluded or admitted evidence. Ante , at 5. And nothing in either Daubert or the Federal Rules of Evidence requires a district judge to reject an expert's conclusions and keep them from the jury when they fit the facts of the case and are based on reliable scientific methodology.Accordingly, while I join Parts I and II of the Court's opinion, I do not concur in the judgment or in Part III of its opinion. |
9 | A passenger bought from a railroad a ticket for a journey from Meriden, Conn., to Fall River, Mass., via New Haven, Conn. On arriving at New Haven, she alighted to transfer to another train leaving about an hour later. At the station, her suitcase was solicited by a redcap employee of the railroad, to whom she handed it with instructions to return it at the Fall River train. No baggage check was given and no money paid. The suitcase was lost, and the passenger sued in a state court. The railroad company claimed that its liability was limited to $25 by a tariff filed with the Interstate Commerce Commission. The state court rendered judgment for $615, the actual value of the lost baggage. Held: Judgment affirmed. Pp. 129-136. (a) The transaction was incident to an interstate journey, and the Interstate Commerce Act controls, to whatever extent its provisions apply. Pp. 130-131. (b) The suitcase in question was not "baggage carried on passenger trains" within the meaning of the first exception added in 1916 to the Carmack Amendment, 39 Stat. 442, 49 U.S.C. 20 (11). Pp. 131-135. (c) Nor did the tariff filed with the Interstate Commerce Commission control, since there was no "value declared in writing by the shipper or agreed upon in writing," within the meaning of the second exception to the Carmack Amendment. P. 135. (d) Only by granting its customers a fair opportunity to choose between higher and lower liability by paying a correspondingly greater or lesser charge can a carrier lawfully limit recovery to an amount less than the actual loss sustained. Pp. 135-136. 139 Conn. 278, 93 A. 2d 165, affirmed. A Connecticut state court awarded respondent a judgment against a railroad for the loss of a suitcase entrusted to a redcap. The State Supreme Court affirmed. 139 Conn. 278, 93 A. 2d 165. This Court granted certiorari. . Affirmed, p. 136.Thomas J. O'Sullivan argued the cause for petitioner. With him on the brief was Edwin H. Hall.John A. Danaher argued the cause and filed a brief for Mrs. George Nothnagle, respondent.Edward M. Reidy filed a brief for the Interstate Commerce Commission, as amicus curiae, urging affirmance.MR. JUSTICE CLARK delivered the opinion of the Court.This case concerns the extent of an interstate carrier's liability for a passenger's baggage loss. On October 5, 1949, Mrs. Nothnagle, respondent here, purchased a railway ticket from petitioner in Meriden, Connecticut, for a journey to Fall River, Massachusetts, via New Haven, Connecticut. She boarded a train in Meriden at 11:19 a. m. and arrived shortly after 11:30 a. m. in New Haven where she alighted for transfer to another train. On the station platform her suitcase was solicited by a redcap employee of petitioner, and she handed it to him with orders to return it at the Fall River train departing at 12:40 p. m. No baggage check was given; no money was paid. The suitcase vanished, and respondent sued. At trial in the Meriden City Court the parties stipulated that the baggage and contents actually worth $615 were lost due to petitioner's negligence. Petitioner insisted, however, that its liability as an interstate carrier was governed by a tariff schedule filed with the Interstate Commerce Commission which limited a recovery for baggage loss to $25 unless the passenger had in writing declared a higher valuation.The state courts granted full recovery to respondent. The trial court found that although respondent had not declared a greater value, she had neither actual knowledge of petitioner's asserted restriction nor was notified of its existence by a legend on a baggage receipt or posted signs. In any event, the court concluded, petitioner had accepted the baggage only "for safe-keeping and not for transportation," so that the parties' rights were determinable by Connecticut principles of bailments rather than any rule of federal law.1 The Connecticut Supreme Court of Errors affirmed, viewing respondent's journey from Meriden to Fall River as not "continuous," and "suspended for a substantial time in New Haven" to be resumed only when she boarded the Fall River train.2 Accordingly, that court deemed the case governed by Connecticut law under which petitioner was held liable for $615.3 Petitioner claims that this decision impairs federal rights secured by the Interstate Commerce Act, and we granted certiorari to examine the scope of that statutory protection. .We have little doubt that the transaction was incident to an interstate journey within the ambit of the Interstate Commerce Act. Neither continuity of interstate movement nor isolated segments of the trip can be decisive. "The actual facts govern. For this purpose, the destination intended by the passenger when he begins his journey and known to the carrier, determines the character of the commerce." Sprout v. South Bend, . And see Baltimore & Ohio S. W. R. Co. v. Settle, ; Galveston, H. & S. A. R. Co. v. Woodbury, . In this case respondent undertook a journey from Connecticut to Massachusetts, with a temporary stopover for transfer along the way. And it goes unchallenged here that the redcap to whom she entrusted her baggage was a railroad employee performing functions, whether viewed as services in connection with an interrupted through trip from Meriden to Fall River or with the second unquestionably interstate leg of respondent's journey, incident to interstate travel and reached by the terms of the Interstate Commerce Act. Cf. Williams v. Jacksonville Terminal Co., , 397 (1942); Stopher v. Cincinnati Union Terminal Co., 246 I. C. C. 41 (1941).4 The Interstate Commerce Act, therefore, must control to whatever extent its provisions apply.With the enactment in 1906 of the Carmack Amendment, Congress superseded diverse state laws with a nationally uniform policy governing interstate carriers' liability for property loss. E. g., Adams Express Co. v. Croninger, ; Kansas City S. R. Co. v. Carl, . Insofar as now pertinent that enactment provided that any interstate railroad "receiving property for transportation ... shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it ..., and no contract, receipt, rule, or regulation shall exempt such ... railroad ... from the liability hereby imposed."5 In 1915 Congress fortified the Carmack Amendment by adding, in part, that "any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void."6 One year later, however, a proviso qualified that prohibition by rendering it inapplicable "first, to baggage carried on passenger trains ..., or trains ... carrying passengers; second, to property ... received for transportation concerning which the carrier shall have been or shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released ... ."7 We assume that petitioner's tariff was properly filed pursuant to a lawful authorization by the Interstate Commerce Commission. In Stopher v. Cincinnati Union Terminal Co., 246 I. C. C. 41, 44-47 (1941), the Commission determined that an interstate railroad's redcap services constituted railroad transportation as defined by the Act, and directed that a tariff covering service charges be filed.8 See also Dayton Union R. Co. Tariff for Redcap Service, 256 I. C. C. 289 (1943); Redcap Service, Cincinnati, Columbus, Indianapolis, 277 I. C. C. 427 (1950). Petitioner railroad participated in filing New England Joint Tariff RC No. 3-N with the Commission. Cf. American Railway Express Co. v. Lindenburg, . In addition to listing a schedule of charges per piece and truckload of baggage, that tariff declares that "Carriers will not accept a greater liability than Twenty-five (25) Dollars per bag or parcel ... handled by Red Caps under the provisions of this tariff, unless a greater value is declared in writing by the passenger. If a greater value is so declared in writing by the passenger, an additional charge of Ten (10) Cents per bag or parcel will be made for each One Hundred (100) Dollars or fraction thereof above Twenty-five (25) Dollars so declared. Any bag or parcel which is declared by the passenger to have a value in excess of Five Hundred (500) Dollars will not be accepted for handling by Red Caps under the provisions of this tariff."Clearly that limitation of liability is voided by the Act unless saved by the statutory proviso. Adams Express Co. v. Darden, ; Chicago, M. & St. P. R. Co. v. McCaull-Dinsmore Co., . The excepted "baggage carried on passenger trains" refers solely to free baggage checked through on a passenger fare. See, e. g., Boston & Maine R. Co. v. Hooker, .9 It cannot apply to redcap service for which the carrier exacts a separate charge because the cost of providing that facility is not an element in the determination of passenger rates. Redcap Service, Cincinnati, Columbus, Indianapolis, 277 I. C. C. 427, 436 (1950).10 The limitation must therefore qualify under the proviso as part of an authorized schedule of rates graduated according to property valuations in writing. Petitioner's tariff on its face does not deviate from the statutory standard, and it may be read as complying with the law. Cf. American Railway Express Co. v. Lindenburg, supra; Cincinnati, N. O. & T. P. R. Co. v. Rankin, .But the facts here do not bring the case within the statutory conditions. There was no "value declared in writing by the shipper or agreed upon in writing"; in fact, not even a baggage check reciting a limitation provision changed hands.11 Moreover, the actual value of respondent's baggage exceeded $500; the tariff itself deems such highly valued property unacceptable for handling by redcaps. But only by granting its customers a fair opportunity to choose between higher or lower liability by paying a correspondingly greater or lesser charge can a carrier lawfully limit recovery to an amount less than the actual loss sustained. Boston & Maine R. Co. v. Piper, ; Union Pacific R. Co. v. Burke, ; cf. The Ansaldo San Giorgio I v. Rheinstrom Bros. Co., . Binding respondent by a limitation which she had no reasonable opportunity to discover would effectively deprive her of the requisite choice;12 such an arrangement would amount to a forbidden attempt to exonerate a carrier from the consequences of its own negligent acts. Ibid.; cf. Watson Bros. Transp. Co. v. Feinberg Co., 193 F.2d 283, 286 (1951). "The great object of the law governing common carriers was to secure the utmost care in the rendering of a service of the highest importance to the community. A carrier who stipulates not to be bound to the exercise of care and diligence `seeks to put off the essential duties of his employment.' It is recognized that the carrier and the individual customer are not on an equal footing. `The latter cannot afford to higgle or stand out and seek redress in the courts.'" Sante Fe, P. & P. R. Co. v. Grant Bros. Construction Co., . In sum, respondent cannot be held bound by petitioner's limitation, and the judgment of the Connecticut Supreme Court of Errors must be Affirmed.MR. JUSTICE JACKSON took no part in the consideration or decision of this case. |
8 | Petitioner was injured while working in Texas for an employer insured by respondent insurance company. Under the Texas Workmen's Compensation Law, he filed a claim with the Texas Industrial Accident Board for $14,035. The Board awarded him only $1,050. Basing jurisdiction on diversity of citizenship, respondent sued in a Federal District Court to have the award set aside, alleging that petitioner was entitled to nothing but had claimed and would claim $14,035. Petitioner moved to dismiss the suit on the ground that the value of the "matter in controversy" was only $1,050. Held: The "matter in controversy" was more than $10,000, within the meaning of 28 U.S.C. 1332, as amended in 1958, and the Federal District Court had jurisdiction. Pp. 349-355. (a) Notwithstanding the 1958 amendment which forbade the removal of state workmen's compensation cases from state courts to Federal District Courts, the District Court had jurisdiction to try this civil case originally filed therein, if the matter in controversy exceeded $10,000. Pp. 350-352. (b) In view of the allegation in respondent's complaint that petitioner had claimed and would claim $14,035 and petitioner's failure to deny that allegation or to disclaim any part of his original claim, the amount in controversy exceeded $10,000. Pp. 352-354. (c) Under the Texas Workmen's Compensation Law, as construed by the State Supreme Court, this suit was not an appeal from a state administrative order, and its dismissal by the District Court was not supportable on the ground that it was such an appeal. Pp. 354-355. 275 F.2d 148, affirmed.Joe H. Tonahill and William VanDercreek argued the cause and filed a brief for petitioner.Howell Cobb argued the cause for respondent. With him on the brief was Major T. Bell. MR. JUSTICE BLACK delivered the opinion of the Court.This case raises questions under that part of 28 U.S.C. 1332, as amended in 1958,1 which grants jurisdiction to United States District Courts of all civil actions between citizens of different States "where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs ... ."Petitioner, Horton, was injured while working for an employer in Texas insured by the respondent, Liberty Mutual Insurance Company. Pursuant to the Texas Workmen's Compensation Law,2 petitioner filed a claim with the Texas Industrial Accident Board against his employer and the respondent insurance company alleging that he had been totally and permanently incapacitated and claiming the maximum recovery under the law of $35 per week for 401 weeks, or a total of $14,035. After administrative hearings the Board decided that petitioner would be disabled for only 30 weeks and accordingly made an award of only $1,050. Section 5 of Art. 8307 of the Texas Workmen's Compensation Law permits either the employee or the insurance company, if dissatisfied with an award, to "bring suit in the county where the injury occurred to set aside said final ruling," in which event the issues shall be determined "upon trial de novo, and the burden or [sic] proof shall be upon the party claiming compensation," but in no event shall the court allow recovery in excess of the statutory maximum of $14,035. Acting under this provision of state law, the respondent, on April 30, 1959, the very day of the award, filed this diversity case in the United States District Court to set aside the award, alleging that petitioner had claimed, was claiming and would claim $14,035, but denying that petitioner was entitled to recover anything at all under Texas law. One week later the petitioner, who also was dissatisfied with the award, filed an action in the state court to set aside the Board's award and to recover in that court the full $14,035. After that, petitioner moved to dismiss the respondent's federal court suit on the ground that the value of the "matter in controversy" was only the amount of the award, $1,050, and not the amount of his claim of $14,035, although he also contemporaneously filed, subject to his motion to dismiss, what he designated as a compulsory counterclaim3 for the full amount he had claimed before the Texas Board and in his Texas State Court suit. The District Court held that the "matter in controversy" in the federal action was only the amount of the $1,050 award that the respondent company had asked the court to set aside. In so holding the District Court relied on National Surety Corp. v. Chamberlain,4 in which another District Court in Texas had reached the same conclusion as to jurisdiction largely on the basis of what it deemed to have been the purpose of Congress in enacting the 1958 amendment to 28 U.S.C. 1332, which amendment rather severely cut down the jurisdiction of Federal District Courts, particularly in state workmen's compensation cases. The Court of Appeals reversed,5 and we granted certiorari to decide the important jurisdictional questions raised under the 1958 amendment.6 For reasons to be stated, we hold that the District Court has jurisdiction of the controversy.First. It is true, as the Chamberlain opinion pointed out, that the purpose and effect of the 1958 amendment were to reduce congestion in the Federal District Courts partially caused by the large number of civil cases that were being brought under the long-standing $3,000 jurisdictional rule. This effort to reduce District Court congestion followed years of study by the United States Judicial Conference and the Administrative Office of the United States Courts, as well as by the Congress.7 To accomplish this purpose the 1958 amendment took several different but related steps. It raised the requisite jurisdictional amount from $3,000 to $10,000 in diversity and federal question cases; it provided that a corporation is to be deemed a citizen not only of the State by which it was incorporated but also of the State where it has its principal place of business; and, most importantly here, it also for the first time forbade the removal of state workmen's compensation cases from state courts to United States District Courts. By granting district judges a discretionary power to impose costs on a federal court plaintiff if he should "recover less than the sum or value of $10,000," the amendment further manifested a congressional purpose to discourage the trying of suits involving less than $10,000 in federal courts. In discussing the question of state workmen's compensation cases, the Senate Report on the amendment evidence a concern not only about the problem of congestion in the federal courts, but also about trial burdens that claimants might suffer by having to go to trial in federal rather than state courts due to the fact that the state courts are likely to be closer to an injured worker's home and may also provide him with special procedural advantages in workmen's compensation cases.8 The foregoing are some of the appealing considerations that led the District Court to conclude that it would frustrate the congressional purpose to permit insurers to file workmen's compensation suits in federal courts when Congress had deliberately provided that such suits could not be removed to federal courts if filed by claimants in state courts. But after the most deliberate study of the whole problem by lawyers and judges and after its consideration by lawyers on the Senate Judiciary Committee in the light of statistics on both removals and original filings,9 Congress used language specifically barring removal of such cases from state to federal courts and at the same time left unchanged the old language which just as specifically permits civil suits to be filed in federal courts in cases where there are both diversity of citizenship and the prescribed jurisdictional amount. In this situation we must take the intent of Congress with regard to the filing of diversity cases in Federal District Courts to be that which its language clearly sets forth. Congress could very easily have used language to bar filing of workmen's compensation suits by the insurer as well as removal of such suits, and it could easily do so still. We therefore hold that under the present law the District Court has jurisdiction to try this civil case between citizens of different States if the matter in controversy is in excess of $10,000.Second. We agree with petitioner that determination of the value of the matter in controversy for purposes of federal jurisdiction is a federal question to be decided under federal standards,10 although the federal courts must, of course, look to state law to determine the nature and extent of the right to be enforced in a diversity case. It therefore is not controlling here that Texas has held that the crucial factor for allocating its cases among different state courts on an amount-in-controversy basis is the amount originally claimed before its State Compensation Board.11 The general federal rule has long been to decide what the amount in controversy is from the complaint itself, unless it appears or is in some way shown that the amount stated in the complaint is not claimed "in good faith."12 In deciding this question of good faith we have said that it "must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal."13 The complaint of the respondent company filed in the District Court, while denying any liability at all and asking that the award of $1,050 against it be set aside, also alleges that petitioner Horton has claimed, now claims and will claim that he has suffered total and permanent disability and is entitled to a maximum recovery of $14,035, which, of course, is in excess of the $10,000 requisite to give a federal court jurisdiction of this controversy. No denial of these allegations in the complaint has been made, no attempted disclaimer or surrender of any part of the original claim has been made by petitioner, and there has been no other showing, let alone a showing "to a legal certainty," of any lack of good faith on the part of the respondent in alleging that a $14,035 claim is in controversy. It would contradict the whole record as well as the allegations of the complaint to say that this dispute involves only $1,050. The claim before the Board was $14,035; the state court suit of petitioner asked that much; the conditional counterclaim in the federal court claims the same amount. Texas law under which this claim was created and has its being leaves the entire $14,035 claim open for adjudication in a de novo court trial, regardless of the award. Thus the record before us shows beyond a doubt that the award is challenged by both parties and is binding on neither; that petitioner claims more than $10,000 from the respondent and the respondent denies it should have to pay petitioner anything at all. No matter which party brings it into court, the controversy remains the same; it involves the same amount of money and is to be adjudicated and determined under the same rules. Unquestionably, therefore, the amount in controversy is in excess of $10,000.Third. Petitioner contends, however, that even though the amount in controversy is more than $10,000, the suit filed by the company is nothing more than an appeal from a state administrative order, that a Federal District Court has no appellate jurisdiction and that the dismissal of the case by the District Court therefore is supportable on that ground. This contention rests almost entirely on Chicago, R. I. & P. R. Co. v. Stude, , which held that a United States District Court was without jurisdiction to consider an appeal "taken administratively or judicially in a state proceeding." Aside from many other relevant distinctions which need not be pointed out, the Stude case is without weight here because, as shown by the Texas Supreme Court's interpretation of its compensation act:"The suit to set aside an award of the board is in fact a suit, not an appeal. It is filed as any other suit is filed and when filed the subject matter is withdrawn from the board."14 It is true that as conditions precedent to filing a suit a claim must have been filed with the Board and the Board must have made a final ruling and decision. But the trial in court is not an appellate proceeding. It is a trial de novo wholly without reference to what may have been decided by the Board.15 The Court of Appeals was right in holding that the District Court had jurisdiction of this case and its judgment is Affirmed. |
8 | The United States Navy contracted with petitioner Campbell-Ewald Company (Campbell) to develop a multimedia recruiting campaign that included the sending of text messages to young adults, but only if those individuals had "opted in" to receipt of marketing solicitations on topics that included Navy service. Campbell's subcontractor Mindmatics LLC generated a list of cellular phone numbers for consenting 18- to 24-year-old users and then transmitted the Navy's message to over 100,000 recipients, including respondent Jose Gomez, who alleges that he did not consent to receive text messages and, at age 40, was not in the Navy's targeted age group. Gomez filed a nationwide class action, alleging that Campbell violated the Telephone Consumer Protection Act (TCPA), 47 U. S. C. §227(b)(1)(A)(iii), which prohibits "using any automatic dialing system" to send a text message to a cellular telephone, absent the recipient's prior express consent. He sought treble statutory damages for a willful and knowing TCPA violation and an injunction against Campbell's involvement in unsolicited messaging. Before the deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez's individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. Gomez did not accept the offer and allowed the Rule 68 submission to lapse on expiration of the time (14 days) specified in the Rule. Campbell then moved to dismiss the case pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction. Campbell argued first that its offer mooted Gomez's individual claim by providing him with complete relief. Next, Campbell urged that Gomez's failure to move for class certification before his individual claim became moot caused the putative class claims to become moot as well. The District Court denied the motion. After limited discovery, the District Court granted Campbell's motion for summary judgment. Relying on Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, the court held that Campbell, as a contractor acting on the Navy's behalf, acquired the Navy's sovereign immunity from suit under the TCPA. The Ninth Circuit reversed. It agreed that Gomez's case remained live but concluded that Campbell was not entitled to "derivative sovereign immunity" under Yearsley or on any other basis. Held: 1. An unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the District Court retained jurisdiction to adjudicate Gomez's complaint. Article III's "cases" and "controversies" limitation requires that "an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed," Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (internal quotation marks omitted), but a case does not become moot as "long as the parties have a concrete interest, however small," in the litigation's outcome, Chafin v. Chafin, 568 U. S. ___, ___ (internal quotation marks omitted). Gomez's complaint was not effaced by Campbell's unaccepted offer to satisfy his individual claim. Under basic principles of contract law, Campbell's settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. With no settlement offer operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset. Neither Rule 68 nor the 19th-century railroad tax cases California v. San Pablo & Tulare R. Co., 149 U. S. 308, Little v. Bowers, 134 U. S. 547, and San Mateo County v. Southern Pacific R. Co., 116 U. S. 138, support the argument that an unaccepted settlement offer can moot a complaint. Pp. 6-12. 2. Campbell's status as a federal contractor does not entitle it to immunity from suit for its violation of the TCPA. Unlike the United States and its agencies, federal contractors do not enjoy absolute immunity. A federal contractor who simply performs as directed by the Government may be shielded from liability for injuries caused by its conduct. See Yearsley, 309 U. S., at 20-21. But no "derivative immunity" exists when the contractor has "exceeded [its] authority" or its authority "was not validly conferred." Id., at 21. The summary judgment record includes evidence that the Navy authorized Campbell to send text messages only to individuals who had "opted in" to receive solicitations, as required by the TCPA. When a contractor violates both federal law and the Government's explicit instructions, as alleged here, no immunity shields the contractor from suit. Pp. 12-14.768 F. 3d 871, affirmed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Roberts, C. J., filed a dissenting opinion, in which Scalia and Alito, JJ., joined. Alito, J., filed a dissenting opinion.Opinion of the Court 577 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. 14-857CAMPBELL-EWALD COMPANY, PETITIONERv. JOSE GOMEZon writ of certiorari to the united states court of appeals for the ninth circuit[January 20, 2016] Justice Ginsburg delivered the opinion of the Court. Is an unaccepted offer to satisfy the named plaintiff's individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant's continuing denial of liability, adversity between the parties persists. This case presents a second question. The claim in suit concerns performance of the petitioner's contract with the Federal Government. Does the sovereign's immunity from suit shield the petitioner, a private enterprise, as well? We hold that the petitioner's status as a Government contractor does not entitle it to "derivative sovereign immunity," i.e., the blanket immunity enjoyed by the sovereign.I The Telephone Consumer Protection Act (TCPA or Act) 48 Stat. 1064, 47 U. S. C. §227(b)(1)(A)(iii), prohibits any person, absent the prior express consent of a telephone-call recipient, from "mak[ing] any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a paging service [or] cellular telephone service." A text message to a cellular telephone, it is undisputed, qualifies as a "call" within the compass of §227(b)(1)(A)(iii). 768 F. 3d 871, 874 (CA9 2014). For damages occasioned by conduct violating the TCPA, §227(b)(3) authorizes a private right of action. A plaintiff successful in such an action may recover her "actual monetary loss" or $500 for each violation, "whichever is greater." Damages may be trebled if "the defendant willfully or knowingly violated" the Act. Petitioner Campbell-Ewald Company (Campbell) is a nationwide advertising and marketing communications agency. Beginning in 2000, the United States Navy engaged Campbell to develop and execute a multimedia recruiting campaign. In 2005 and 2006, Campbell proposed to the Navy a campaign involving text messages sent to young adults, the Navy's target audience, encouraging them to learn more about the Navy. The Navy approved Campbell's proposal, conditioned on sending the messages only to individuals who had "opted in" to receipt of marketing solicitations on topics that included service in the Navy. App. 42. In final form, the message read:"Destined for something big? Do it in the Navy. Get a career. An education. And a chance to serve a greater cause. For a FREE Navy video call [ phone number]." 768 F. 3d, at 873.Campbell then contracted with Mindmatics LLC, which generated a list of cellular phone numbers geared to the Navy's target audience — namely, cellular phone users between the ages of 18 and 24 who had consented to receiving solicitations by text message. In May 2006, Mindmatics transmitted the Navy's message to over 100,000 recipients. Respondent Jose Gomez was a recipient of the Navy's recruiting message. Alleging that he had never consented to receiving the message, that his age was nearly 40, and that Campbell had violated the TCPA by sending the message (and perhaps others like it), Gomez filed a class-action complaint in the District Court for the Central District of California in 2010. On behalf of a nationwide class of individuals who had received, but had not consented to receipt of, the text message, Gomez sought treble statutory damages, costs, and attorney's fees, also an injunction against Campbell's involvement in unsolicited messaging. App. 16-24. Prior to the agreed-upon deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez's individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. App. to Pet. for Cert. 52a-61a.1 Campbell offered to pay Gomez his costs, excluding attorney's fees, and $1,503 per message for the May 2006 text message and any other text message Gomez could show he had received, thereby satisfying his personal treble-damages claim. Id., at 53a. Campbell also proposed a stipulated injunction in which it agreed to be barred from sending text messages in violation of the TCPA. The proposed injunction, however, denied liability and the allegations made in the complaint, and disclaimed the existence of grounds for the imposition of an injunction. Id., at 56a. The settlement offer did not include attorney's fees, Campbell observed, because the TCPA does not provide for an attorney's-fee award. Id., at 53a. Gomez did not accept the settlement offer and allowed Campbell's Rule 68 submission to lapse after the time, 14 days, specified in the Rule. Campbell thereafter moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. No Article III case or controversy remained, Campbell urged, because its offer mooted Gomez's individual claim by providing him with complete relief. Gomez had not moved for class certification before his claim became moot, Campbell added, so the putative class claims also became moot. The District Court denied Campbell's motion. 805 F. Supp. 2d 923 (CD Cal. 2011).2 Gomez was not dilatory in filing his certification request, the District Court determined; consequently, the court noted, the class claims would "relat[e] back" to the date Gomez filed the complaint. Id., at 930-931. After limited discovery, Campbell moved for summary judgment on a discrete ground. The U. S. Navy enjoys the sovereign's immunity from suit under the TCPA, Campbell argued. The District Court granted the motion. Relying on our decision in Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18 (1940), the court held that, as a contractor acting on the Navy's behalf, Campbell acquired the Navy's immunity. No. CV 10-02007DMG (CD Cal., Feb. 22, 2013), App. to Pet. for Cert. 22a-34a, 2013 WL 655237. The Court of Appeals for the Ninth Circuit reversed the summary judgment entered for Campbell. 768 F. 3d 871. The appeals court disagreed with the District Court's ruling on the immunity issue, but agreed that Gomez's case remained live. Concerning Gomez's individual claim, the Court of Appeals relied on its then-recent decision in Diaz v. First American Home Buyers Protection Corp., 732 F. 3d 948 (2013). Diaz held that "an unaccepted Rule 68 offer that would fully satisfy a plaintiff's [individual] claim is insufficient to render th[at] claim moot." Id., at 950. As to the class relief Gomez sought, the Ninth Circuit held that "an unaccepted Rule 68 offer of judgment — for the full amount of the named plaintiff's individual claim and made before the named plaintiff files a motion for class certification — does not moot a class action." 768 F. 3d, at 875 (quoting Pitts v. Terrible Herbst, Inc., 653 F. 3d 1081, 1091-1092 (CA9 2011)). Next, the Court of Appeals held that Campbell was not entitled to "derivative sovereign immunity" under this Court's decision in Yearsley or on any other basis. 768 F. 3d, at 879-881. Vacating the District Court's judgment, the Ninth Circuit remanded the case for further proceedings.3 We granted certiorari to resolve a disagreement among the Courts of Appeals over whether an unaccepted offer can moot a plaintiff's claim, thereby depriving federal courts of Article III jurisdiction. Compare Bais Yaakov v. Act, Inc., 798 F. 3d 46, 52 (CA1 2015); Hooks v. Landmark Industries, Inc., 797 F. 3d 309, 315 (CA5 2015); Chapman v. First Index, Inc., 796 F. 3d 783, 787 (CA7 2015); Tanasi v. New Alliance Bank, 786 F. 3d 195, 200 (CA2 2015); Stein v. Buccaneers Limited Partnership, 772 F. 3d 698, 703 (CA11 2014); Diaz, 732 F. 3d, at 954-955 (holding that an unaccepted offer does not render a plaintiff's claim moot), with Warren v. Sessoms & Rogers, P. A., 676 F. 3d 365, 371 (CA4 2012); O'Brien v. Ed Donnelly Enterprises, Inc., 575 F. 3d 567, 574-575 (CA6 2009); Weiss v. Regal Collections, 385 F. 3d 337, 340 (CA3 2004) (holding that an unaccepted offer can moot a plaintiff's claim). We granted review as well to resolve the federal contractor immunity question Campbell's petition raised. 575 U. S. ___ (2015).II Article III of the Constitution limits federal-court jurisdiction to "cases" and "controversies." U. S. Const., Art. III, §2. We have interpreted this requirement to demand that "an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U. S. 395, 401 (1975)). "If an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit,' at any point during litigation, the action can no longer proceed and must be dismissed as moot." Genesis HealthCare Corp., 569 U. S., at ___ (slip op., at 4) (quoting Lewis v. Continental Bank Corp., 494 U. S. 472, 477-478 (1990)). A case becomes moot, however, "only when it is impossible for a court to grant any effectual relief what-ever to the prevailing party." Knox v. Service Employees, 567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation marks omitted). "As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Chafin v. Chafin, 568 U. S. ___, ___ (2013) (slip op., at 6) (internal quotation marks omitted). In Genesis HealthCare, the Court considered a collective action brought by Laura Symczyk, a former employee of Genesis HealthCare Corp. Symczyk sued on behalf of herself and similarly situated employees for alleged violations of the Fair Labor Standards Act of 1938, 29 U. S. C. §201 et seq. In that case, as here, the defendant served the plaintiff with an offer of judgment pursuant to Rule 68 that would have satisfied the plaintiff's individual dam-ages claim. 569 U. S., at ___ (slip op., at 2). Also as here, the plaintiff allowed the offer to lapse by failing to respond within the time specified in the Rule. Ibid. But unlike the case Gomez mounted, Symczyk did not dispute in the lower courts that Genesis HealthCare's offer mooted her individual claim. Id., at ___ (slip op., at 5). Because of that failure, the Genesis HealthCare majority refused to rule on the issue. Instead, the majority simply assumed, without deciding, that an offer of complete relief pursuant to Rule 68, even if unaccepted, moots a plaintiff's claim. Ibid. Having made that assumption, the Court proceeded to consider whether the action remained justiciable on the basis of the collective-action allegations alone. Absent a plaintiff with a live individual case, the Court concluded, the suit could not be maintained. Id., at ___ (slip op., at 6). Justice Kagan, writing in dissent, explained that she would have reached the threshold question and would have held that "an unaccepted offer of judgment cannot moot a case." Id., at ___ (slip op., at 3). She reasoned:"When a plaintiff rejects such an offer — however good the terms — her interest in the lawsuit remains just what it was before. And so too does the court's ability to grant her relief. An unaccepted settlement offer — like any unaccepted contract offer — is a legal nullity, with no operative effect. As every first-year law student learns, the recipient's rejection of an offer 'leaves the matter as if no offer had ever been made.' Minneapolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U. S. 149, 151 (1886). Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that '[a]n unaccepted offer is considered withdrawn.' Fed. Rule Civ. Proc. 68(b). So assuming the case was live before — because the plaintiff had a stake and the court could grant relief — the litigation carries on, unmooted." Ibid.We now adopt Justice Kagan's analysis, as has every Court of Appeals ruling on the issue post Genesis HealthCare.4 Accordingly, we hold that Gomez's complaint was not effaced by Campbell's unaccepted offer to satisfy his individual claim. As earlier recounted, see supra, at 3-4, Gomez commenced an action against Campbell for violation of the TCPA, suing on behalf of himself and others similarly situated. Gomez sought treble statutory damages and an injunction on behalf of a nationwide class, but Campbell's settlement offer proposed relief for Gomez alone, and it did not admit liability. App. to Pet. for Cert. 58a. Gomez rejected Campbell's settlement terms and the offer of judgment. Under basic principles of contract law, Campbell's settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. See Genesis HealthCare, 569 U. S., at ___ (Kagan, J., dissenting) (slip op., at 3). Absent Gomez's acceptance, Campbell's settlement offer remained only a proposal, binding neither Campbell nor Gomez. See App. to Pet. for Cert. 59a ("Please advise whether Mr. Gomez will accept [Campbell's] offer . . . ."). Having rejected Campbell's settlement bid, and given Campbell's continuing denial of liability, Gomez gained no entitlement to the relief Campbell previously offered. See Eliason v. Henshaw, 4 Wheat. 225, 228 (1819) ("It is an undeniable principle of the law of contracts, that an offer of a bargain by one person to another, imposes no obligation upon the former, until it is accepted by the latter . . . ."). In short, with no settlement offer still operative, the parties remained adverse; both retained the same stake in the litigation they had at the outset. The Federal Rule in point, Rule 68, hardly supports the argument that an unaccepted settlement offer can moot a complaint. An offer of judgment, the Rule provides, "is considered withdrawn" if not accepted within 14 days of its service. Fed. Rule Civ. Proc. 68(a), (b). The sole built-in sanction: "If the [ultimate] judgment . . . is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made." Rule 68(d). In urging that an offer of judgment can render a controversy moot, Campbell features a trio of 19th-century railroad tax cases: California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893), Little v. Bowers, 134 U. S. 547 (1890), and San Mateo County v. Southern Pacific R. Co., 116 U. S. 138 (1885). None of those decisions suggests that an unaccepted settlement offer can put a plaintiff out of court. In San Pablo, California had sued to recover state and county taxes due from a railroad. In response, the railroad had not merely offered to pay the taxes in question. It had actually deposited the full amount demanded in a California bank in the State's name, in accord with a California statute that "extinguished" the railroad's tax obligations upon such payment. 149 U. S., at 313-314. San Pablo thus rested on California's substantive law, which required the State to accept a taxpayer's full payment of the amount in controversy. San Mateo and Little similarly involved actual payment of the taxes for which suit was brought. In all three cases, the railroad's payments had fully satisfied the asserted tax claims, and so extinguished them. San Mateo, 116 U. S., at 141-142; Little, 134 U. S., at 556.5 In contrast to the cases Campbell highlights, when the settlement offer Campbell extended to Gomez expired, Gomez remained emptyhanded; his TCPA complaint, which Campbell opposed on the merits, stood wholly unsatisfied. Because Gomez's individual claim was not made moot by the expired settlement offer, that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class. While a class lacks independent status until certified, see Sosna v. Iowa, 419 U. S. 393, 399 (1975), a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted. The Chief Justice's dissent asserts that our decision transfers authority from the federal courts and "hands it to the plaintiff." Post, at 10. Quite the contrary. The dissent's approach would place the defendant in the driver's seat. We encountered a kindred strategy in U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18 (1994). The parties in Bancorp had reached a voluntary settlement while the case was pending before this Court. Id., at 20. The petitioner then sought vacatur of the Court of Appeals' judgment, contending that it should be relieved from the adverse decision on the ground that the settlement made the dispute moot. The Court rejected this gambit. Id., at 25. Similarly here, Campbell sought to avoid a potential adverse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept. In sum, an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the District Court retained jurisdiction to adjudicate Gomez's complaint. That ruling suffices to decide this case. We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical.III The second question before us is whether Campbell's status as a federal contractor renders it immune from suit for violating the TCPA by sending text messages to unconsenting recipients. The United States and its agencies, it is undisputed, are not subject to the TCPA's prohibitions because no statute lifts their immunity. Brief for Peti-tioner 2; Brief for Respondent 43. Do federal contractors share the Government's unqualified immunity from liability and litigation? We hold they do not. "[G]overnment contractors obtain certain immunity in connection with work which they do pursuant to their contractual undertakings with the United States." Brady v. Roosevelt S. S. Co., 317 U. S. 575, 583 (1943). That immunity, however, unlike the sovereign's, is not absolute. See id., at 580-581. Campbell asserts "derivative sovereign immunity," Brief for Petitioner 35, but can offer no authority for the notion that private persons performing Government work acquire the Government's embracive immunity. When a contractor violates both federal law and the Government's explicit instructions, as here alleged, no "derivative immunity" shields the contractor from suit by persons adversely affected by the violation. Campbell urges that two of our decisions support its "derivative immunity" defense: Yearsley, 309 U. S. 18, and Filarsky v. Delia, 566 U. S. ___ (2012). In Yearsley, a landowner asserted a claim for damages against a private company whose work building dikes on the Missouri River pursuant to its contract with the Federal Government had washed away part of the plaintiff's land. We held that the contractor was not answerable to the landowner. "[T]he work which the contractor had done in the river bed," we observed, "was all authorized and directed by the Government of the United States" and "performed pursuant to the Act of Congress." 309 U. S., at 20 (internal quotation marks omitted). Where the Government's "authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress," we explained, "there is no liability on the part of the contractor" who simply performed as the Government directed. Id., at 20-21.6 The Court contrasted with Yearsley cases in which a Government agent had "exceeded his authority" or the authority "was not validly conferred"; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to another. Id., at 21.7 In Filarsky, we considered whether a private attorney temporarily retained by a municipal government as an investigator could claim qualified immunity in an action brought under 42 U. S. C. §1983. Finding no distinction in the common law "between public servants and private individuals engaged in public service," we held that the investigator could assert "qualified immunity" in the lawsuit. 566 U. S., at ___, ___ (slip op., at 8, 5). Qualified immunity reduces the risk that contractors will shy away from government work. But the doctrine is bounded in a way that Campbell's "derivative immunity" plea is not. "Qualified immunity may be overcome . . . if the defendant knew or should have known that his conduct violated a right 'clearly established' at the time of the episode in suit." Id., at ___ (Ginsburg, J., concurring) (slip op., at 1) (citing Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)). Campbell does not here contend that the TCPA's requirements or the Navy's instructions failed to qualify as "clearly established." At the pretrial stage of litigation, we construe the record in a light favorable to the party seeking to avoid summary disposition, here, Gomez. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986). In opposition to summary judgment, Gomez presented evidence that the Navy authorized Campbell to send text messages only to individuals who had "opted in" to receive solicitations. App. 42-44; 768 F. 3d, at 874. A Navy representative noted the importance of ensuring that the message recipient list be "kosher" (i.e., that all recipients had consented to receiving messages like the recruiting text), and made clear that the Navy relied on Campbell's representation that the list was in compliance. App. 43. See also ibid. (noting that Campbell itself encouraged the Navy to use only an opt-in list in order to meet national and local law requirements). In short, the current record reveals no basis for arguing that Gomez's right to remain message-free was in doubt or that Campbell complied with the Navy's instructions. We do not overlook that subcontractor Mindmatics, not Campbell, dispatched the Navy's recruiting message to unconsenting recipients. But the Federal Communications Commission has ruled that, under federal common-law principles of agency, there is vicarious liability for TCPA violations. In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574 (2013). The Ninth Circuit deferred to that ruling, 768 F. 3d, at 878, and we have no cause to question it. Campbell's vicarious liability for Mindmatics' conduct, however, in no way advances Campbell's contention that it acquired the sovereign's immunity from suit based on its contract with the Navy.* * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Thomas, J., concurring in judgment 577 U. S. ____ (2016)No. 14-857CAMPBELL-EWALD COMPANY, PETITIONER v. JOSE GOMEZon writ of certiorari to the united states court of appeals for the ninth circuit[January 20, 2016] Justice Thomas, concurring in the judgment. The Court correctly concludes that an offer of complete relief on a claim does not render that claim moot. But, in my view, the Court does not advance a sound basis for this conclusion. The Court rests its conclusion on modern contract law principles and a recent dissent concerning Federal Rule of Civil Procedure 68. See ante, at 6-9. I would rest instead on the common-law history of tenders. That history — which led to Rule 68 — demonstrates that a mere offer of the sum owed is insufficient to eliminate a court's jurisdiction to decide the case to which the offer related. I therefore concur only in the judgment.I The text of Article III's case-or-controversy requirement, that requirement's drafting history, and our precedents do not appear to provide sufficiently specific principles to resolve this case. When faced with such uncertainty, it seems particularly important for us to look to how courts traditionally have viewed a defendant's offer to pay the plaintiff's alleged damages. That history — which stretches from the common law directly to Rule 68 and modern settlement offers — reveals one unbroken practice that should resolve this case: A defendant's offer to pay the plaintiff — without more — would not have deprived a court of jurisdiction. Campbell-Ewald's offers thus do not bar federal courts from continuing to hear this case.A Modern settlement procedure has its origins in the law of tenders, as refined in the 18th and 19th centuries. As with much of the early common law, the law of tenders had many rigid formalities. These formalities make clear that, around the time of the framing, a mere offer of relief was insufficient to deprive a court of jurisdiction. At common law, a prospective defendant could prevent a case from proceeding, but he needed to provide substantially more than a bare offer. A "mere proposal or proposition" to pay a claim was inadequate to end a case. A. Hunt, A Treatise on the Law of Tender, and Bringing Money Into Court §§1-2, 3-4 (1903) (Hunt) (citing cases from the 1800's). Nor would a defendant's "readiness and an ability to pay the money" suffice to end a case. Holmes v. Holmes, 12 Barb. 137, 144 (N. Y. 1851). Rather, a prospective defendant needed to provide a "tender"--an offer to pay the entire claim before a suit was filed, accompanied by "actually produc[ing]" the sum "at the time of tender" in an "unconditional" manner. M. Bacon, A New Abridgment of the Law, 314-315, 321 (1856) (citing cases from the early 1800's). Furthermore, in state and federal courts, a tender of the amount due was deemed "an admission of a liability" on the cause of action to which the tender related, so any would-be defendant who tried to deny liability could not effectuate a tender. Hunt §400, at 448; see Cottier v. Stimpson, 18 F. 689, 691 (Ore. 1883) (explaining that a tender constitutes "an admission of the cause of action"); The Rossend Castle Dillenback v. The Rossend Castle, 30 F. 462, 464 (SDNY 1887) (same). As one treatise explained, "[a] tender must be of a specific sum which the tenderor admits to be due"--"[t]here must be no denial of the debt." Hunt §242, at 253 (emphasis added). The tender had to offer and actually deliver complete relief. See id., §2, at 4; Sheredine v. Gaul, 2 Dall. 190, 191 (Pa. 1792) (defendant must "brin[g] the money into Court"). And an offer to pay less than what was demanded was not a valid tender. See, e.g., Elderkin v. Fellows, 60 Wis. 339, 340-341, 19 N. W. 101, 102 (1884). Even when a potential defendant properly effectuated a tender, the case would not necessarily end. At common law, a plaintiff was entitled to "deny that [the tender was] sufficient to satisfy his demand" and accordingly "go on to trial." Raiford v. Governor, 29 Ala. 382, 384 (1856); see also Hunt §511, at 595.* This history demonstrates that, at common law, a defendant or prospective defendant had to furnish far more than a mere offer of settlement to end a case. This history also demonstrates that courts at common law would not have understood a mere offer to strip them of jurisdiction.B Although 19th-century state statutes expanded the common-law-tender regime, the law retained its essential features. See Bone, "To Encourage Settlement": Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 Nw. U. L. Rev. 1561, 1585 (2008) (Bone). These changes, for example, allowed defendants to offer a tender "during the pendency of an action," as well as before it commenced. Taylor v. Brooklyn Elevated R. Co., 119 N. Y. 561, 564, 23 N. E. 1106, 1107 (1890); cf. Colby v. Reed, 99 U. S. 560, 566 (1879) (at common law, generally no "right of tender after action brought"). Statutes also expanded the right of tender to cover types of actions in which damages were not certain. Compare Dedekam v. Vose, 7 F. Cas. 337, 338 (SDNY 1853) ("[T]ender could not be maintained, according to the strict principles of the common law" in cases where damages were not easily ascertainable), with Patrick v. Illawaco Oyster Co., 189 Wash. 152, 155, 63 P. 2d 520, 521 (1937) (state statute "extend[ed] the common-law rule" to tort actions). Nevertheless, state statutes generally retained the core of the common-law tender rules. Most critically for this case, a mere offer remained insufficient to end a lawsuit. See, e.g., Kilts v. Seeber, 10 How. Pr. 270, 271 (N. Y. 1854) (under New York law, a mere offer was insufficient to preclude litigation). Like the common-law tender rules, state statutes recognized that plaintiffs could continue to pursue litigation by rejecting an offer. See Bone 1586.C The offer-of-judgment procedure in Rule 68 was modeled after a provision in the New York Field Code that was enacted in the mid-19th century. See id., at 1583-1584. That code abrogated many of the common-law formalities governing civil procedure. Among its innovations, the code allowed defendants in any cause of action to make an offer in writing to the plaintiff proposing to accept judgment against the defendant for a specified sum. See The Code of Procedure of the State of New York From 1848 to 1871: Comprising the Act as Originally Enacted and the Various Amendments Made Thereto, to the Close of the Session of 1870 §385, p. 274 (1870). The plaintiff could accept the offer, which would end the litigation, or reject the offer, in which case the offer was considered with drawn without any admission of liability by the defendant. Ibid. In 1938, Rule 68 was adopted as part of the Federal Rules of Civil Procedure, and has subsisted throughout the years without material changes. See Bone 1564. As it did in 1938, Rule 68 now authorizes "a party defending against a claim" to "serve on an opposing party an offer to allow judgment on specified terms." Rule 68(a). Rule 68 also provides a plaintiff the option to accept or reject an offer. If the plaintiff accepts the offer, the "clerk must then enter judgment," but "[a]n unaccepted offer is considered withdrawn." Rules 68(a)-(b). Withdrawn offers (unlike common-law tenders) cannot be used in court as an admission against defendants. Rule 68(b).D In light of the history discussed above, a rejected offer does not end the case. And this consistent historical practice demonstrates why Campbell-Ewald's offers do not divest a federal court of jurisdiction to entertain Gomez's suit. Campbell-Ewald made two settlement offers after Gomez sued — one filed with the District Court under Rule 68 and one freestanding settlement offer. But with neither of these offers did the company make payment; it only declared its intent to pay. Because Campbell-Ewald only offered to pay Gomez's claim but took no further steps, the court was not deprived of jurisdiction.II Although the Court reaches the right result, I cannot adopt its reasoning. Building on the dissent in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___ (2013), the Court relies on principles of contract law that an unaccepted offer is a legal nullity. But the question here is not whether Campbell-Ewald's offer formed an enforceable contract. The question is whether its continuing offer of complete relief eliminated the case or controversy required by Article III. By looking only to contract law and one recent Rule 68 opinion, the Court fails to confront this broader issue. Instead, I believe that we must resolve the meaning of "case" and "controversy" in Article III by looking to "the traditional, fundamental limitations upon the powers of common-law courts" because "cases" and "controversies" "have virtually no meaning except by reference to that tradition." Honig v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J., dissenting). The Chief Justice's dissent argues that examining whether the requirements of common-law tenders have been met does not answer "whether there is a case or controversy for purposes of Article III." Post, at 9, n. 3. As explained above, however, courts have historically refused to dismiss cases when an offer did not conform to the strict tender rules. The logical implications of The Chief Justice's reasoning are that the common-law-tender rules conflict with Article III and that the Constitution bars Article III courts from following those principles. But see Colby, supra, at 566 (stating that, to stop litigation, a party "must adopt the measure prescribed by the common law, except in jurisdictions where a different mode of proceeding is prescribed by statute"). That reasoning, therefore, calls into question the history and tradition that the case-or-controversy requirement embodies. The Chief Justice also contends that our precedents "plainly establish that an admission of liability is not required for a case to be moot under Article III." Post, at 10, n. 3. But we need not decide today whether compliance with every common-law formality would be necessary to end a case. The dispositive point is that state and federal courts have not considered a mere offer, without more, sufficient to moot the case. None of the cases cited by The Chief Justice hold that a retrospective claim for money damages can become moot based on a mere offer. California v. San Pablo & Tulare R. Co., is inapposite because that decision involved a fully tendered offer that extinguished the tax debt under California law. Id., at 313-314. Alvarez v. Smith, and Already, LLC v. Nike, Inc.___ (2013), are also not on point. Both involved claims for injunctive or declaratory relief that became moot when the defendants ceased causing actual or threatened injury. But whether a claim for prospective relief is moot is different from the issue in this case, which involves claims for damages to remedy past harms. See, e.g., Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007) (plaintiff "sought damages in her complaint, which is sufficient to preserve our ability to consider the question"); Alvarez, supra, at 92 (suggesting that a "continuing controversy over damages" would mean that the case was not moot). As explained above, I would follow history and tradition in construing Article III, and so I find that Campbell-Ewald's mere offers did not deprive the District Court of jurisdiction. Accordingly, I concur in the judgment only.Roberts, C. J., dissenting 577 U. S. ____ (2016)No. 14-857CAMPBELL-EWALD COMPANY, PETITIONER v. JOSE GOMEZon writ of certiorari to the united states court of appeals for the ninth circuit[January 20, 2016] Chief Justice Roberts, with whom Justice Scalia and Justice Alito join, dissenting. This case is straightforward. Jose Gomez alleges that the marketing firm Campbell-Ewald (Campbell) sent him text messages without his permission, and he requests relief under the Telephone Consumer Protection Act. That Act permits consumers to recover statutory damages for unauthorized text messages. Based on Gomez's allegations, the maximum that he could recover under the Act is $1500 per text message, plus the costs of filing suit. Campbell has offered to pay Gomez that amount, but it turns out he wants more. He wants a federal court to say he is right. The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff's entitlement to relief already there for the taking. As this Court has said, "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Raines v. Byrd, 521 U. S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 37 (1976)). If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end. Here, the District Court found that Campbell agreed to fully satisfy Gomez's claims. That makes the case moot, and Gomez is not entitled to a ruling on the merits of a moot case. I respectfully dissent.IA In 1793, President George Washington sent a letter to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for the opinion of the Court on the rights and obligations of the United States with respect to the war between Great Britain and France. The Supreme Court politely — but firmly — refused the request, concluding that "the lines of separation drawn by the Constitution between the three departments of the government" prohibit the federal courts from issuing such advisory opinions. 3 Correspondence and Public Papers of John Jay 486-489 (H. Johnston ed. 1890-1893). That prohibition has remained "the oldest and most consistent thread in the federal law of justiciability." Flast v. Cohen, 392 U. S. 83, 96 (1968) (internal quotation marks omitted). And for good reason. It is derived from Article III of the Constitution, which limits the authority of the federal courts to the adjudication of "Cases" or "Controversies." U. S. Const., Art. III, §2. The case or controversy requirement is at once an important check on the powers of the Federal Judiciary and the source of those powers. In Marbury v. Madison, 1 Cranch 137, 177 (1803), Chief Justice Marshall established that it is "the province and duty of the judicial department to say what the law is." Not because there is a provision in the Constitution that says so — there isn't. Instead, the federal courts wield that power because they have to decide cases and controversies, and "[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret that rule." Ibid. Federal courts may exercise their authority "only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals." Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892); see also Allen v. Wright, 468 U. S. 737, 752 (1984). "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006). A case or controversy exists when both the plaintiff and the defendant have a "personal stake" in the lawsuit. Camreta v. Greene, 563 U. S. 692, 701 (2011). A plaintiff demonstrates a personal stake by establishing standing to sue, which requires a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen, 468 U. S., at 751. A defendant demonstrates a personal stake through "an ongoing interest in the dispute." Camreta, 563 U. S., at 701. The personal stake requirement persists through every stage of the lawsuit. It "is not enough that a dispute was very much alive when suit was filed"; the "parties must continue to have a personal stake in the outcome of the lawsuit" to prevent the case from becoming moot. Lewis v. Continental Bank Corp., 494 U. S. 472, 477-478 (1990) (internal quotation marks omitted). If either the plaintiff or the defendant ceases to have a concrete interest in the outcome of the litigation, there is no longer a live case or controversy. A federal court that decides the merits of such a case runs afoul of the prohibition on advisory opinions.B Applying those basic principles to this case, it is clear that the lawsuit is moot. All agree that at the time Gomez filed suit, he had a personal stake in the litigation. In his complaint, Gomez alleged that he suffered an injury in fact when he received unauthorized text messages from Campbell. To remedy that injury, he requested $1500 in statutory damages for each unauthorized text message. (It was later determined that he received only one text message.) What happened next, however, is critical: After Gomez's initial legal volley, Campbell did not return fire. Instead, Campbell responded to the complaint with a freestanding offer to pay Gomez the maximum amount that he could recover under the statute: $1500 per unauthorized text message, plus court costs. Campbell also made an offer of judgment on the same terms under Rule 68 of the Federal Rules of Civil Procedure, which permits a defendant to recover certain attorney's fees if the Rule 68 offer is unaccepted and the plaintiff later recovers no more than the amount of the offer. Crucially, the District Court found that the "parties do not dispute" that Campbell's Rule 68 offer — reflecting the same terms as the freestanding offer--"would have fully satisfied the individual claims asserted, or that could have been asserted," by Gomez. 805 F. Supp. 2d 923, 927 (CD Cal. 2011). When a plaintiff files suit seeking redress for an alleged injury, and the defendant agrees to fully redress that injury, there is no longer a case or controversy for purposes of Article III. After all, if the defendant is willing to remedy the plaintiff's injury without forcing him to litigate, the plaintiff cannot demonstrate an injury in need of redress by the court, and the defendant's interests are not adverse to the plaintiff. At that point, there is no longer any "necessity" to "expound and interpret" the law, Marbury, 1 Cranch, at 177, and the federal courts lack authority to hear the case. That is exactly what happened here: Once Campbell offered to fully remedy Gomez's injury, there was no longer any "necessity" for the District Court to hear the merits of his case, rendering the lawsuit moot.1 It is true that although Campbell has offered Gomez full relief, Campbell has not yet paid up. That does not affect the mootness inquiry under the facts of this case. Campbell is a multimillion dollar company, and the settlement offer here is for a few thousand dollars. The settlement offer promises "prompt payment," App. to Pet. for Cert. 59a, and it would be mere pettifoggery to argue that Campbell might not make good on that promise. In any event, to the extent there is a question whether Campbell is willing and able to pay, there is an easy answer: have the firm deposit a certified check with the trial court.II The Court today holds that Gomez's lawsuit is not moot. According to the Court, "An unaccepted settlement offer — like any unaccepted contract offer — is a legal nullity, with no operative effect." Ante, at 7-8 (quoting Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___ (2013) (Kagan, J., dissenting) (slip op., at 3)). And so, the Court concludes, if a plaintiff does not feel like accepting the defendant's complete offer of relief, the lawsuit cannot be moot because it is as if no offer had ever been made. But a plaintiff is not the judge of whether federal litigation is necessary, and a mere desire that there be federal litigation — for whatever reason — does not make it necessary. When a lawsuit is filed, it is up to the federal court to determine whether a concrete case or controversy exists between the parties. That remains true throughout the litigation. Article III does not require the parties to affirmatively agree on a settlement before a case becomes moot. This Court has long held that when a defendant unilaterally remedies the injuries of the plaintiff, the case is moot — even if the plaintiff disagrees and refuses to settle the dispute, and even if the defendant continues to deny liability. In California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893), the State of California brought suit against a railroad company for back taxes. Before oral argument in this Court, the railroad offered to pay California the entire sum at issue, "together with interest, penalties and costs." Id., at 313. Although California continued to litigate the case despite the railroad's offer of complete relief, the Court concluded that the offer to pay the full sum, in addition to "the deposit of the money in a bank, which by a statute of the State ha[s] the same effect as actual payment and receipt of the money," mooted the case. Id., at 314. The Court grounded its decision in San Pablo on the prohibition against advisory opinions, explaining that "the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case." Ibid. Although the majority here places great weight on Gomez's rejection of Campbell's offer of complete relief, San Pablo did not consider the agreement of the parties to be relevant to the question of mootness. As the Court said then, "[n]o stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court." Ibid. More recently, in Alvarez v. Smith, 558 U. S. 87 (2009), the Court found that a plaintiff's refusal to settle a case did not prevent it from becoming moot. In Alvarez, Chicago police officers had seized vehicles and cash from six individuals. The individuals filed suit against the city and two officials, claiming that they were entitled to a timely post-seizure hearing to seek the return of their property. The Court of Appeals ruled for the plaintiffs, and this Court granted certiorari. At oral argument, the parties informed the Court that the cars and some of the cash had been returned, and that the plaintiffs no longer sought the return of the remainder of the cash. Id., at 92. Nevertheless, the plaintiffs — much like Gomez--"continue[d] to dispute the lawfulness of the State's hearing procedures." Id., at 93. Although the plaintiffs refused to settle the case, and the defendants would not concede that the hearing procedures were unlawful, the Court held that the case was moot. As the Court explained, the "dispute is no longer embedded in any actual controversy about the plaintiffs' particular legal rights," and "a dispute solely about the meaning of a law, abstracted from any concrete actual or threatened harm, falls outside the scope of the constitutional words 'Cases' and 'Controversies.' " Ibid. The Court reached a similar conclusion in Already, LLC v. Nike, Inc., 568 U. S. ___ (2013). In that case, Nike filed suit alleging that two of Already's athletic shoes violated Nike's Air Force 1 trademark. In response, Already filed a counterclaim alleging that Nike's trademark was invalid. Instead of litigating the counterclaim, Nike issued a unilateral covenant not to sue Already. In that covenant, Nike "unconditionally and irrevocably" promised not to raise any trademark or unfair competition claims against Already based on its current shoe designs or any future "colorable imitations" of those designs. Id., at ___ (slip op., at 6). Nike did not, however, admit that its trademark was invalid. After issuing the covenant, Nike asked the District Court to dismiss the counterclaim as moot. Id., at ___ (slip op., at 2). Already did not agree to Nike's covenant, and it did not view the covenant as sufficient to protect it from future trademark litigation. Already argued that without judicial resolution of the dispute, "Nike's trademarks [would] hang over Already's operations like a Damoclean sword." Id., at ___ (slip op., at 9). This Court disagreed and dismissed the suit. It found that because Nike had demonstrated "that the covenant encompasses all of [Nike's] allegedly unlawful conduct," and that the "challenged conduct cannot reasonably be expected to recur," the counterclaim was moot. Id., at ___ (slip op., at 7-8). These precedents reflect an important constitutional principle: The agreement of the plaintiff is not required to moot a case. In San Pablo, California did not accept the railroad's money in exchange for settling the State's legal claims; in Alvarez, the plaintiffs did not receive their cars and cash in return for an agreement to stop litigating the case; and in Already, the eponymous shoe company never agreed to Nike's covenant not to sue. In each of those cases, despite the plaintiff's desire not to settle, the Court held that the lawsuit was moot. The majority attempts to distinguish these precedents by emphasizing that the plaintiffs in all three cases received complete relief, but that is not the point. I had thought that the theory of the Court's opinion was that acceptance is required before complete relief will moot a case. But consider the majority's discussion of Already: What did Nike's covenant do? It "afforded Already blanket protection from future trademark litigation." Ante, at 10, n. 5. What happened as a result of this complete relief ? "The risk that underpinned Already's standing" thus "ceased to exist." Ibid. Even though what? Even though "Nike's covenant was unilateral," and not accepted by Already. Ibid. The majority is correct that because Gomez did not accept Campbell's settlement, it is a "legal nullity" as a matter of contract law. The question, however, is not whether there is a contract; it is whether there is a case or controversy under Article III.2 If the defendant is willing to give the plaintiff everything he asks for, there is no case or controversy to adjudicate, and the lawsuit is moot.3* * * The case or controversy requirement serves an essential purpose: It ensures that the federal courts expound the law "only in the last resort, and as a necessity." Allen, 468 U. S., at 752 (internal quotation marks omitted). It is the necessity of resolving a live dispute that reconciles the exercise of profound power by unelected judges with the principles of self-governance, ensuring adherence to "the proper — and properly limited — role of the courts in a democratic society." Id., at 750 (internal quotation marks omitted). There is no such necessity here. As the District Court found, Campbell offered Gomez full relief. Although Gomez nonetheless wants to continue litigating, the issue is not what the plaintiff wants, but what the federal courts may do. It is up to those courts to decide whether each party continues to have the requisite personal stake in the lawsuit, and if not, to dismiss the case as moot. The Court today takes that important responsibility away from the federal courts and hands it to the plaintiff. The good news is that this case is limited to its facts. The majority holds that an offer of complete relief is insufficient to moot a case. The majority does not say that payment of complete relief leads to the same result. For aught that appears, the majority's analysis may have come out differently if Campbell had deposited the offered funds with the District Court. See ante, at 11-12. This Court leaves that question for another day — assuming there are other plaintiffs out there who, like Gomez, won't take "yes" for an answer.Alito, J., dissenting 577 U. S. ____ (2016)No. 14-857CAMPBELL-EWALD COMPANY, PETITIONER v. JOSE GOMEZon writ of certiorari to the united states court of appeals for the ninth circuit[January 20, 2016] Justice Alito, dissenting. I join The Chief Justice's dissent. I agree that a defendant may extinguish a plaintiff's personal stake in pursuing a claim by offering complete relief on the claim, even if the plaintiff spurns the offer. Our Article III precedents make clear that, for mootness purposes, there is nothing talismanic about the plaintiff's acceptance. E.g., Already, LLC v. Nike, Inc., 568 U. S. ___ (2013) (holding that Nike's unilateral covenant not to sue mooted Already's trademark invalidity claim). I write separately to emphasize what I see as the linchpin for finding mootness in this case: There is no real dispute that Campbell would "make good on [its] promise" to pay Gomez the money it offered him if the case were dismissed. Ante, at 5 (opinion of Roberts, C. J.). Absent this fact, I would be compelled to find that the case is not moot. Our "voluntary cessation" cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant's conduct, a defendant's "voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed." Knox v. Service Employees, 567 U. S. ___, ___-___ (2012) (slip op., at 6-7). To obtain dismissal in such circumstances, the defendant must " 'bea[r] the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.' " Already, supra, at ___ (slip op., at 4) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000)). We have typically applied that rule in cases involving claims for prospective relief, see Knox, supra, at ___ (slip op., at 7), but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if — but only if — it is "absolutely clear" that the plaintiff will be able to receive the offered relief. Already, supra, at ___ (slip op., at 8).1 Consider an offer of complete relief from a defendant that has no intention of actually paying the promised sums, or from a defendant whose finances are so shaky that it cannot produce the necessary funds. In both instances, there is a question whether the defendant will back up its offer to pay with an actual payment. If those cases were dismissed as moot, the defendant's failure to follow through on its promise to pay would leave the plaintiff forever emptyhanded. In the language of our mootness cases, those cases would not be moot because a court could still grant the plaintiff "effectual relief," Knox, supra, at ___ (slip op., at 7) (internal quotation marks omitted)--namely, the relief sought in the first place. The plaintiff retains a "personal stake" in continuing the litigation. Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___ (2013) (slip op., at 4) (internal quotation marks omitted). An offer of complete relief thus will not always warrant dismissal. Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff's injury cannot reasonably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has rendered a damages claim moot. How, then, can a defendant make "absolutely clear" that it will pay the relief it has offered? The most straightforward way is simply to pay over the money. The defendant might hand the plaintiff a certified check or deposit the requisite funds in a bank account in the plaintiff's name. See California v. San Pablo & Tulare R. Co., 149 U. S. 308, 313-314 (1893). Alternatively, a defendant might deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot. See Fed. Rule Civ. Proc. 67; 28 U. S. C. §§2041, 2042. In these situations, there will rarely be any serious doubt that the plaintiff can obtain the offered money.2 While outright payment is the surest way for a defendant to make the requisite mootness showing, I would not foreclose other means of doing so. The question is whether it is certain the defendant will pay, not whether the defendant has already paid. I believe Campbell clears the mark in this case. As The Chief Justice observes, there is no dispute Campbell has the means to pay the few thousand dollars it offered Gomez, and there is no basis "to argue that Campbell might not make good on that promise" if the case were dismissed. Ante, at 5. Thus, in the circumstances of this case, Campbell's offer of complete relief should have rendered Gomez's damages claim moot. But the same would not necessarily be true for other defendants, particularly those that face more substantial claims, possess less secure finances, or extend offers of questionable sincerity. Cf. Already, 568 U. S., at ___-___ (Kennedy, J., concurring) (slip op., at 3-4) (emphasizing the "formidable burden on the party asserting mootness" and noting possible "doubts that Nike's showing [of mootness] would suffice in other circumstances"). The Court does not dispute Campbell's ability or willingness to pay, but nonetheless concludes that its unaccepted offer did not moot Gomez's claim. While I disagree with that result on these facts, I am heartened that the Court appears to endorse the proposition that a plaintiff's claim is moot once he has "received full redress" from the defendant for the injuries he has asserted. Ante, at 10, n. 5 (discussing Already, supra, and Alvarez v. Smith, 558 U. S. 87 (2009)). Today's decision thus does not prevent a defendant who actually pays complete relief — either directly to the plaintiff or to a trusted intermediary — from seeking dismissal on mootness grounds.3FOOTNOTESFootnote 1 Federal Rule of Civil Procedure 68 provides, in relevant part:"(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment."(b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs.. . . . ."(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the un-accepted offer, the offeree must pay the costs incurred after the offer was made."Footnote 2 Because Campbell had already answered the complaint, the District Court construed Campbell's motion as a request for summary judgment. 805 F. Supp. 2d, at 927, n. 2.Footnote 3 The Court of Appeals stayed its mandate pending proceedings in this Court. App. to Pet. for Cert. 62a-63a.Footnote 4 See Bais Yaakov v. Act, Inc., 798 F. 3d 46, 51-52 (CA1 2015); Hooks v. Landmark Industries, Inc., 797 F. 3d 309, 314-315 (CA5 2015); Chapman v. First Index, Inc., 796 F. 3d 783, 786-787 (CA7 2015); Tanasi v. New Alliance Bank, 786 F. 3d 195, 199-200 (CA2 2015); Stein v. Buccaneers Limited Partnership, 772 F. 3d 698, 702-703 (CA11 2014); Diaz v. First American Home Buyers Corp., 732 F. 3d 948, 953-955 (CA9 2013).Footnote 5 In addition to California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893), The Chief Justice maintains, two recent decisions of the Court support its position: Alvarez v. Smith, 558 U. S. 87 (2009), and Already, LLC v. Nike, Inc., 568 U. S. ___ (2013). See post, at 6-9 (dissenting opinion). The Court's reasoning in those opinions, however, is consistent with our decision in this case. In Alvarez, the Court found moot claims for injunctive and declaratory relief in relation to cars and cash seized by the police. Through separate state-court proceedings, the State had "returned all the cars that it seized," and the plaintiff-property owners had "either forfeited any relevant cash or ha[d] accepted as final the State's return of some of it." 558 U. S., at 89, 95-96. Alvarez thus resembles the railroad tax cases described above: The Alvarez plaintiffs had in fact received all the relief they could claim, all "underlying property disputes" had ended, id., at 89, and as the complaint sought "only declaratory and injunctive relief, not damages," id., at 92, no continuing controversy remained. Already concerned a trademark owned by Nike. Already sought a declaratory judgment invalidating the trademark. The injury Already asserted was the ongoing threat that Nike would sue for trademark infringement. In response to Already's claim, Nike filed a "Covenant Not to Sue," in which it promised not to bring any trademark claims based on Already's existing or similar footwear designs. 568 U. S., at ___ (slip op., at 2). The Court found this covenant sufficient to overcome the rule that "voluntary cessation" is generally inadequate to moot a claim. Id., at ___ (slip op., at 6). True, Nike's covenant was unilateral, but it afforded Already blanket protection from future trademark litigation. Id., at ___ (slip op., at 8). The risk that underpinned Already's standing — the Damocles' sword of a trademark infringement suit — thus ceased to exist given Nike's embracive promise not to sue. In short, in both Alvarez and Already, the plaintiffs had received full redress for the injuries asserted in their complaints. Here, by contrast, Campbell's revocable offer, far from providing Gomez the relief sought in his complaint, gave him nary a penny.Footnote 6 If there had been a taking of the plaintiff's property, the Court noted, "a plain and adequate remedy" would be at hand, i.e., recovery from the United States of "just compensation." Yearsley, 309 U. S., at 21.Footnote 7 We disagree with the Court of Appeals to the extent that it described Yearsley as "establish[ing] a narrow rule regarding claims arising out of property damage caused by public works projects." 768 F. 3d, at 879. Critical in Yearsley was not the involvement of public works, but the contractor's performance in compliance with all federal directions.FOOTNOTESFootnote 1 * Nevertheless, the common law strongly encouraged a plaintiff to accept a tender by penalizing plaintiffs who improperly rejected them. A plaintiff would not be able to recover any damages that accrued after the tender, nor could he receive the costs of the suit if the jury returned a verdict for either the amount offered or less. See Hunt §§363-364, at 403-404. This rule remains today. See Fed. Rule Civ. Proc. 68(d) (taxing costs to plaintiff who fails to recover more than the offer of judgment).FOOTNOTESFootnote 1 The Court does not reach the question whether Gomez's claim for class relief prevents this case from becoming moot. The majority nev-ertheless suggests that Campbell "sought to avoid a potential adverse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept." Ante, at 11. But under this Court's precedents Gomez does not have standing to seek relief based solely on the alleged injuries of others, and Gomez's interest in sharing attorney's fees among class members or in obtaining a class incentive award does not create Article III standing. See Lewis v. Continental Bank Corp., 494 U. S. 472, 480 (1990) (An "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim."); Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 107 (1998) ("Obviously, however, a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit. The litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.").Footnote 2 The majority suggests that this case is analogous to U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18 (1994), where the Court declined to vacate a lower court decision that became moot on certiorari when the parties voluntarily settled the case. Bancorp is inapposite — it involves the equitable powers of the courts to vacate judgments in moot cases, not the Article III question whether a case is moot in the first place. The premise of Bancorp is that it is up to the federal courts — and not the parties — to decide what to do once a case becomes moot. The majority's position, in contrast, would leave it to the plaintiff to decide whether a case is moot.Footnote 3 To further support its Article III-by-contract theory of the case, the Court looks to Federal Rule of Civil Procedure 68, which states that an unaccepted offer of judgment "is considered withdrawn." Rule 68(b). But Campbell made Gomez both a Rule 68 offer and a freestanding settlement offer. By its terms, Rule 68 does not apply to the latter. The majority's only argument with respect to the freestanding settlement offer is that under the rules of contract law, an unaccepted offer is a "legal nullity." Ante, at 7. As explained, however, under the principles of Article III, an unaccepted offer of complete relief moots a case. Justice Thomas, concurring in the judgment, would decide the case based on whether there was a formal tender under the common law. This suffers from the same flaw as the majority opinion. The question is not whether the requirements of the common law of tender have been met, but whether there is a case or controversy for purposes of Article III. The Supreme Court cases we have discussed make clear that the two questions are not the same. To cite just one example, Justice Thomas argues that a tender under the common law must include an admission of liability. Ante, at 2-3. Our precedents, however, plainly establish that an admission of liability is not required for a case to be moot under Article III. See supra, at 7-8. We are not at liberty to proceed as if those Article III precedents do not exist.FOOTNOTESFootnote 1 I say it must be clear that the plaintiff "will be able to receive" the relief, rather than that the plaintiff "will receive" the relief, to account for the possibility of an obstinate plaintiff who refuses to take any relief even if the case is dismissed. A plaintiff cannot thwart mootness by refusing complete relief presented on a silver platter.Footnote 2 Depositing funds with the district court or another intermediary may be particularly attractive to defendants because it would ensure that the plaintiff can obtain the money, yet allow the defendant to reclaim the funds if the court refuses to dismiss the case (for example, because it determines the offer is for less than full relief ). Contrary to the views of Gomez's amicus, there is no reason to force a defendant to effect an " 'irrevocable transfer of title' " to the funds without regard to whether doing so succeeds in mooting the case. Brief for American Federation of Labor and Congress of Industrial Organizations 10. Likewise, because I believe our precedents "provide sufficiently specific principles to resolve this case," I would not apply the "rigid formalities" of common-law tender in this context. Ante, at 1, 2 (Thomas, J., concurring in judgment). Article III demands that a plaintiff always have a personal stake in continuing the litigation, and that stake is extinguished if the plaintiff is freely able to obtain full relief in the event the case is dismissed as moot.Footnote 3 Although it does not resolve the issue, the majority raises the possibility that a defendant must both pay the requisite funds and have "the court . . . ente[r] judgment for the plaintiff in that amount." Ante, at 11. I do not see how that can be reconciled with Already, which affirmed an order of dismissal — not judgment for the plaintiff — where the plaintiff had received full relief from the defendant. Already, LLC v. Nike, Inc., 568 U. S. ___, ___-___, ___ (2013) (slip op., at 2-3, 15). |
1 | Respondent former employee of petitioner bank brought an action against the bank and her supervisor at the bank, claiming that during her employment at the bank she had been subjected to sexual harassment by the supervisor in violation of Title VII of the Civil Rights Act of 1964, and seeking injunctive relief and damages. At the trial, the parties presented conflicting testimony about the existence of a sexual relationship between respondent and the supervisor. The District Court denied relief without resolving the conflicting testimony, holding that if respondent and the supervisor did have a sexual relationship, it was voluntary and had nothing to do with her continued employment at the bank, and that therefore respondent was not the victim of sexual harassment. The court then went on to hold that since the bank was without notice, it could not be held liable for the supervisor's alleged sexual harassment. The Court of Appeals reversed and remanded. Noting that a violation of Title VII may be predicated on either of two types of sexual harassment - (1) harassment that involves the conditioning of employment benefits on sexual favors, and (2) harassment that, while not affecting economic benefits, creates a hostile or offensive working environment - the Court of Appeals held that since the grievance here was of the second type and the District Court had not considered whether a violation of this type had occurred, a remand was necessary. The court further held that the need for a remand was not obviated by the fact that the District Court had found that any sexual relationship between respondent and the supervisor was a voluntary one, a finding that might have been based on testimony about respondent's "dress and personal fantasies" that "had no place in the litigation." As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment by supervisory personnel, whether or not the employer knew or should have known about it.Held: 1. A claim of "hostile environment" sexual harassment is a form of sex discrimination that is actionable under Title VII. Pp. 63-69. (a) The language of Title VII is not limited to "economic" or "tangible" discrimination. Equal Employment Opportunity Commission Guidelines fully support the view that sexual harassment leading to non-economic injury can violate Title VII. Here, respondent's allegations were sufficient to state a claim for "hostile environment" sexual harassment. Pp. 63-67. (b) The District Court's findings were insufficient to dispose of respondent's "hostile environment" claim. The District Court apparently erroneously believed that a sexual harassment claim will not lie absent an economic effect on the complainant's employment, and erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her participation in them was voluntary. Pp. 67-68. (c) The District Court did not err in admitting evidence of respondent's sexually provocative speech and dress. While "voluntariness" in the sense of consent is no defense to a sexual harassment claim, it does not follow that such evidence is irrelevant as a matter of law in determining whether the complainant found particular sexual advances unwelcome. Pp. 68-69. 2. The Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. While common-law agency principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. In this case, however, the mere existence of a grievance procedure in the bank and the bank's policy against discrimination, coupled with respondent's failure to invoke that procedure, do not necessarily insulate the bank from liability. Pp. 69-73. App. D.C. 323, 753 F.2d 141, affirmed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, STEVENS, and O'CONNOR, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 73. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 74.F. Robert Troll, Jr., argued the cause for petitioner. With him on the briefs were Charles H. Fleischer and Randall C. Smith.Patricia J. Barry argued the cause for respondent Vinson. With her on the brief was Catherine A. MacKinnon.* [Footnote *] Briefs of amici curiae urging reversal were filed for the United States et al. by Solicitor General Fried, Assistant Attorneys General Reynolds and Willard, Deputy Solicitor General Kuhl, Albert G. Lauber, Jr., John F. Cordes, John F. Daly, and Johnny J. Butler; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Garen E. Dodge; for the Chamber of Commerce of the United States by Dannie B. Fogleman and Stephen A. Bokat; and for the Trustees of Boston University by William Burnett Harvey and Michael B. Rosen. Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by W. Cary Edwards, Attorney General of New Jersey, James J. Ciancia, Assistant Attorney General, Susan L. Reisner and Lynn B. Norcia, Deputy Attorneys General, John Van de Kamp, Attorney General of California, Joseph I. Lieberman, Attorney General of Connecticut, Neil F. Hartigan, Attorney General of Illinois, Hubert H. Humphrey III, Attorney General of Minnesota, Paul Bardacke, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Jeffrey L. Amestoy, Attorney General of Vermont, and Elisabeth S. Shuster; for the American Federation of Labor and the Congress of Industrial Organizations et al. by Marsha S. Berzon, Joy L. Koletsky, Laurence Gold, Winn Newman, and Sarah E. Burns; for the Women's Bar Association of Massachusetts et al. by S. Beville May; for the Women's Bar Association of the State of New York by Stephen N. Shulman and Lynda S. Mounts; for the Women's Legal Defense Fund et al. by Linda R. Singer, Anne E. Simon, Nadine Taub, Judith Levin, and Barry H. Gottfried; for the Working Women's Institute et al. by Laurie E. Foster; and for Senator Paul Simon et al. by Michael H. Salsbury. JUSTICE REHNQUIST delivered the opinion of the Court.This case presents important questions concerning claims of workplace "sexual harassment" brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000e et seq.IIn 1974, respondent Mechelle Vinson met Sidney Taylor, a vice president of what is now petitioner Meritor Savings Bank (bank) and manager of one of its branch offices. When respondent asked whether she might obtain employment at the bank, Taylor gave her an application, which she completed and returned the next day; later that same day Taylor called her to say that she had been hired. With Taylor as her supervisor, respondent started as a teller-trainee, and thereafter was promoted to teller, head teller, and assistant branch manager. She worked at the same branch for four years, and it is undisputed that her advancement there was based on merit alone. In September 1978, respondent notified Taylor that she was taking sick leave for an indefinite period. On November 1, 1978, the bank discharged her for excessive use of that leave.Respondent brought this action against Taylor and the bank, claiming that during her four years at the bank she had "constantly been subjected to sexual harassment" by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney's fees.At the 11-day bench trial, the parties presented conflicting testimony about Taylor's behavior during respondent's employment.Fn Respondent testified that during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions. These activities ceased after 1977, respondent stated, when she started going with a steady boyfriend.Respondent also testified that Taylor touched and fondled other women employees of the bank, and she attempted to call witnesses to support this charge. But while some supporting testimony apparently was admitted without objection, the District Court did not allow her "to present wholesale evidence of a pattern and practice relating to sexual advances to other female employees in her case in chief, but advised her that she might well be able to present such evidence in rebuttal to the defendants' cases." Vinson v. Taylor, 22 EPD § 30,708, p. 14,693, n. 1, 23 FEP Cases 37, 38-39, n. 1 (DC 1980). Respondent did not offer such evidence in rebuttal. Finally, respondent testified that because she was afraid of Taylor she never reported his harassment to any of his supervisors and never attempted to use the bank's complaint procedure.Taylor denied respondent's allegations of sexual activity, testifying that he never fondled her, never made suggestive remarks to her, never engaged in sexual intercourse with her, and never asked her to do so. He contended instead that respondent made her accusations in response to a business-related dispute. The bank also denied respondent's allegations and asserted that any sexual harassment by Taylor was unknown to the bank and engaged in without its consent or approval.The District Court denied relief, but did not resolve the conflicting testimony about the existence of a sexual relationship between respondent and Taylor. It found instead that "[i]f [respondent] and Taylor did engage in an intimate or sexual relationship during the time of [respondent's] employment with [the bank], that relationship was a voluntary one having nothing to do with her continued employment at [the bank] or her advancement or promotions at that institution." Id., at 14,692, 23 FEP Cases, at 42 (footnote omitted). The court ultimately found that respondent "was not the victim of sexual harassment and was not the victim of sexual discrimination" while employed at the bank. Ibid., 23 FEP Cases, at 43. Although it concluded that respondent had not proved a violation of Title VII, the District Court nevertheless went on to address the bank's liability. After noting the bank's express policy against discrimination, and finding that neither respondent nor any other employee had ever lodged a complaint about sexual harassment by Taylor, the court ultimately concluded that "the bank was without notice and cannot be held liable for the alleged actions of Taylor." Id., at 14,691, 23 FEP Cases, at 42.The Court of Appeals for the District of Columbia Circuit reversed. App. D.C. 323, 753 F.2d 141 (1985). Relying on its earlier holding in Bundy v. JacksonApp. D.C. 444, 641 F.2d 934 (1981), decided after the trial in this case, the court stated that a violation of Title VII may be predicated on either of two types of sexual harassment: harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment. The court drew additional support for this position from the Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex, 29 CFR 1604.11(a) (1985), which set out these two types of sexual harassment claims. Believing that "Vinson's grievance was clearly of the [hostile environment] type," App. D.C., at 327, 753 F.2d, at 145, and that the District Court had not considered whether a violation of this type had occurred, the court concluded that a remand was necessary.The court further concluded that the District Court's finding that any sexual relationship between respondent and Taylor "was a voluntary one" did not obviate the need for a remand. "[U]ncertain as to precisely what the [district] court meant" by this finding, the Court of Appeals held that if the evidence otherwise showed that "Taylor made Vinson's toleration of sexual harassment a condition of her employment," her voluntariness "had no materiality whatsoever." Id., at 328, 753 F.2d, at 146. The court then surmised that the District Court's finding of voluntariness might have been based on "the voluminous testimony regarding respondent's dress and personal fantasies," testimony that the Court of Appeals believed "had no place in this litigation." Id., at 328, n. 36, 753 F.2d, at 146, n. 36.As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment practiced by supervisory personnel, whether or not the employer knew or should have known about the misconduct. The court relied chiefly on Title VII's definition of "employer" to include "any agent of such a person," 42 U.S.C. 2000e(b), as well as on the EEOC Guidelines. The court held that a supervisor is an "agent" of his employer for Title VII purposes, even if he lacks authority to hire, fire, or promote, since "the mere existence - or even the appearance - of a significant degree of influence in vital job decisions gives any supervisor the opportunity to impose on employees." App. D.C., at 332, 753 F.2d, at 150.In accordance with the foregoing, the Court of Appeals reversed the judgment of the District Court and remanded the case for further proceedings. A subsequent suggestion for rehearing en banc was denied, with three judges dissenting. App. D.C. 306, 760 F.2d 1330 (1985). We granted certiorari, , and now affirm but for different reasons.IITitle 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). The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives. 110 Cong. Rec. 2577-2584 (1964). The principal argument in opposition to the amendment was that "sex discrimination" was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment. See id., at 2577 (statement of Rep. Celler quoting letter from United States Department of Labor); id., at 2584 (statement of Rep. Green). This argument was defeated, the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on "sex."Respondent argues, and the Court of Appeals held, that unwelcome sexual advances that create an offensive or hostile working environment violate Title VII. Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex. Petitioner apparently does not challenge this proposition. It contends instead that in prohibiting discrimination with respect to "compensation, terms, conditions, or privileges" of employment, Congress was concerned with what petitioner describes as "tangible loss" of "an economic character," not "purely psychological aspects of the workplace environment." Brief for Petitioner 30-31, 34. In support of this claim petitioner observes that in both the legislative history of Title VII and this Court's Title VII decisions, the focus has been on tangible, economic barriers erected by discrimination.We reject petitioner's view. First, the language of Title VII is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent "`to strike at the entire spectrum of disparate treatment of men and women'" in employment. Los Angeles Dept. of Water and Power v. Manhart, , n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). Petitioner has pointed to nothing in the Act to suggest that Congress contemplated the limitation urged here. Second, in 1980 the EEOC issued Guidelines specifying that "sexual harassment," as there defined, is a form of sex discrimination prohibited by Title VII. As an "administrative interpretation of the Act by the enforcing agency," Griggs v. Duke Power Co., , these Guidelines, "`while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,'" General Electric Co. v. Gilbert, , quoting Skidmore v. Swift & Co., . The EEOC Guidelines fully support the view that harassment leading to noneconomic injury can violate Title VII.In defining "sexual harassment," the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." 29 CFR 1604.11(a) (1985). Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited "sexual harassment," whether or not it is directly linked to the grant or denial of an economic quid pro quo, where "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 1604.11(a)(3).In concluding that so-called "hostile environment" (i. e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. See generally 45 Fed. Reg. 74676 (1980). Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, , was apparently the first case to recognize a cause of action based upon a discriminatory work environment. In Rogers, the Court of Appeals for the Fifth Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee's protections under Title VII extend beyond the economic aspects of employment:"[T]he 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... . One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers ... ." 454 F.2d, at 238. Courts applied this principle to harassment based on race, e. g., Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506, 514-515 (CA8), cert. denied sub nom. Banta v. United States, ; Gray v. Greyhound Lines, EastApp. D.C. 91, 98, 545 F.2d 169, 176 (1976), religion, e. g., Compston v. Borden, Inc., 424 F. Supp. 157 (SD Ohio 1976), and national origin, e. g., Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87, 88 (CA8 1977). Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law.Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982): "Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets." Accord, Katz v. Dole, 709 F.2d 251, 254-255 (CA4 1983); Bundy v. JacksonApp. D.C., at 444-454, 641 F.2d, at 934-944; Zabkowicz v. West Bend Co., 589 F. Supp. 780 (ED Wis. 1984).Of course, as the courts in both Rogers and Henson recognized, not all workplace conduct that may be described as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 ("mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not affect the conditions of employment to sufficiently significant degree to violate Title VII); Henson, 682 F.2d, at 904 (quoting same). For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." Ibid. Respondent's allegations in this case - which include not only pervasive harassment but also criminal conduct of the most serious nature - are plainly sufficient to state a claim for "hostile environment" sexual harassment.The question remains, however, whether the District Court's ultimate finding that respondent "was not the victim of sexual harassment," 22 EPD § 30,708, at 14,692-14,693, 23 FEP Cases, at 43, effectively disposed of respondent's claim. The Court of Appeals recognized, we think correctly, that this ultimate finding was likely based on one or both of two erroneous views of the law. First, the District Court apparently believed that a claim for sexual harassment will not lie absent an economic effect on the complainant's employment. See ibid. ("It is without question that sexual harassment of female employees in which they are asked or required to submit to sexual demands as a condition to obtain employment or to maintain employment or to obtain promotions falls within protection of Title VII") (emphasis added). Since it appears that the District Court made its findings without ever considering the "hostile environment" theory of sexual harassment, the Court of Appeals' decision to remand was correct.Second, the District Court's conclusion that no actionable harassment occurred might have rested on its earlier "finding" that "[i]f [respondent] and Taylor did engage in an intimate or sexual relationship ..., that relationship was a voluntary one." Id., at 14,692, 23 FEP Cases, at 42. But the fact that sex-related conduct was "voluntary," in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." 29 CFR 1604.11(a) (1985). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.Petitioner contends that even if this case must be remanded to the District Court, the Court of Appeals erred in one of the terms of its remand. Specifically, the Court of Appeals stated that testimony about respondent's "dress and personal fantasies," App. D.C., at 328, n. 36, 753 F.2d, at 146, n. 36, which the District Court apparently admitted into evidence, "had no place in this litigation." Ibid. The apparent ground for this conclusion was that respondent's voluntariness vel non in submitting to Taylor's advances was immaterial to her sexual harassment claim. While "voluntariness" in the sense of consent is not a defense to such a claim, it does not follow that a complainant's sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of "the record as a whole" and "the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." 29 CFR 1604.11(b) (1985). Respondent's claim that any marginal relevance of the evidence in question was outweighed by the potential for unfair prejudice is the sort of argument properly addressed to the District Court. In this case the District Court concluded that the evidence should be admitted, and the Court of Appeals' contrary conclusion was based upon the erroneous, categorical view that testimony about provocative dress and publicly expressed sexual fantasies "had no place in this litigation." App. D.C., at 328, n. 36, 753 F.2d, at 146, n. 36. While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind, there is no per se rule against its admissibility.IIIAlthough the District Court concluded that respondent had not proved a violation of Title VII, it nevertheless went on to consider the question of the bank's liability. Finding that "the bank was without notice" of Taylor's alleged conduct, and that notice to Taylor was not the equivalent of notice to the bank, the court concluded that the bank therefore could not be held liable for Taylor's alleged actions. The Court of Appeals took the opposite view, holding that an employer is strictly liable for a hostile environment created by a supervisor's sexual advances, even though the employer neither knew nor reasonably could have known of the alleged misconduct. The court held that a supervisor, whether or not he possesses the authority to hire, fire, or promote, is necessarily an "agent" of his employer for all Title VII purposes, since "even the appearance" of such authority may enable him to impose himself on his subordinates.The parties and amici suggest several different standards for employer liability. Respondent, not surprisingly, defends the position of the Court of Appeals. Noting that Title VII's definition of "employer" includes any "agent" of the employer, she also argues that "so long as the circumstance is work-related, the supervisor is the employer and the employer is the supervisor." Brief for Respondent 27. Notice to Taylor that the advances were unwelcome, therefore, was notice to the bank.Petitioner argues that respondent's failure to use its established grievance procedure, or to otherwise put it on notice of the alleged misconduct, insulates petitioner from liability for Taylor's wrongdoing. A contrary rule would be unfair, petitioner argues, since in a hostile environment harassment case the employer often will have no reason to know about, or opportunity to cure, the alleged wrongdoing.The EEOC, in its brief as amicus curiae, contends that courts formulating employer liability rules should draw from traditional agency principles. Examination of those principles has led the EEOC to the view that where a supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whose delegation of authority empowered the supervisor to undertake them. Brief for United States and EEOC as Amici Curiae 22. Thus, the courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, should have known, or approved of the supervisor's actions. E. g., Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (CA6 1972).The EEOC suggests that when a sexual harassment claim rests exclusively on a "hostile environment" theory, however, the usual basis for a finding of agency will often disappear. In that case, the EEOC believes, agency principles lead to"a rule that asks whether a victim of sexual harassment had reasonably available an avenue of complaint regarding such harassment, and, if available and utilized, whether that procedure was reasonably responsive to the employee's complaint. If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment (obtained, e. g., by the filing of a charge with the EEOC or a comparable state agency). In all other cases, the employer will be liable if it has actual knowledge of the harassment or if, considering all the facts of the case, the victim in question had no reasonably available avenue for making his or her complaint known to appropriate management officials." Brief for United States and EEOC as Amici Curiae 26. As respondent points out, this suggested rule is in some tension with the EEOC Guidelines, which hold an employer liable for the acts of its agents without regard to notice. 29 CFR 1604.11(c) (1985). The Guidelines do require, however, an "examin[ation of] the circumstances of the particular employment relationship and the job [f]unctions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity." Ibid. This debate over the appropriate standard for employer liability has a rather abstract quality about it given the state of the record in this case. We do not know at this stage whether Taylor made any sexual advances toward respondent at all, let alone whether those advances were unwelcome, whether they were sufficiently pervasive to constitute a condition of employment, or whether they were "so pervasive and so long continuing ... that the employer must have become conscious of [them]," Taylor v. Jones, 653 F.2d 1193, 1197-1199 (CA8 1981) (holding employer liable for racially hostile working environment based on constructive knowledge).We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.Finally, we reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent's failure to invoke that procedure, must insulate petitioner from liability. While those facts are plainly relevant, the situation before us demonstrates why they are not necessarily dispositive. Petitioner's general nondiscrimination policy did not address sexual harassment in particular, and thus did not alert employees to their employer's interest in correcting that form of discrimination. App. 25. Moreover, the bank's grievance procedure apparently required an employee to complain first to her supervisor, in this case Taylor. Since Taylor was the alleged perpetrator, it is not altogether surprising that respondent failed to invoke the procedure and report her grievance to him. Petitioner's contention that respondent's failure should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward.IVIn sum, we hold that a claim of "hostile environment" sex discrimination is actionable under Title VII, that the District Court's findings were insufficient to dispose of respondent's hostile environment claim, and that the District Court did not err in admitting testimony about respondent's sexually provocative speech and dress. As to employer liability, we conclude that the Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case.Accordingly, the judgment of the Court of Appeals reversing the judgment of the District Court is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Fn Like the Court of Appeals, this Court was not provided a complete transcript of the trial. We therefore rely largely on the District Court's opinion for the summary of the relevant testimony.JUSTICE STEVENS, concurring.Because I do not see any inconsistency between the two opinions, and because I believe the question of statutory construction that JUSTICE MARSHALL has answered is fairly presented by the record, I join both the Court's opinion and JUSTICE MARSHALL'S opinion. JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join, concurring in the judgment.I fully agree with the Court's conclusion that workplace sexual harassment is illegal, and violates Title VII. Part III of the Court's opinion, however, leaves open the circumstances in which an employer is responsible under Title VII for such conduct. Because I believe that question to be properly before us, I write separately.The issue the Court declines to resolve is addressed in the EEOC Guidelines on Discrimination Because of Sex, which are entitled to great deference. See Griggs v. Duke Power Co., (EEOC Guidelines on Employment Testing Procedures of 1966); see also ante, at 65. The Guidelines explain: "Applying general Title VII principles, an employer ... is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission will examine the circumstances of the particular employment relationship and the job [f]unctions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity. "With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action." 29 CFR 1604.11(c),(d) (1985). The Commission, in issuing the Guidelines, explained that its rule was "in keeping with the general standard of employer liability with respect to agents and supervisory employees... . [T]he Commission and the courts have held for years that an employer is liable if a supervisor or an agent violates the Title VII, regardless of knowledge or any other mitigating factor." 45 Fed. Reg. 74676 (1980). I would adopt the standard set out by the Commission.An employer can act only through individual supervisors and employees; discrimination is rarely carried out pursuant to a formal vote of a corporation's board of directors. Although an employer may sometimes adopt companywide discriminatory policies violative of Title VII, acts that may constitute Title VII violations are generally effected through the actions of individuals, and often an individual may take such a step even in defiance of company policy. Nonetheless, Title VII remedies, such as reinstatement and backpay, generally run against the employer as an entity.1 The question thus arises as to the circumstances under which an employer will be held liable under Title VII for the acts of its employees.The answer supplied by general Title VII law, like that supplied by federal labor law, is that the act of a supervisory employee or agent is imputed to the employer.2 Thus, for example, when a supervisor discriminatorily fires or refuses to promote a black employee, that act is, without more, considered the act of the employer. The courts do not stop to consider whether the employer otherwise had "notice" of the action, or even whether the supervisor had actual authority to act as he did. E. g., Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (CA7 1977); Young v. Southwestern Savings and Loan Assn., 509 F.2d 140 (CA5 1975); Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (CA6 1972). Following that approach, every Court of Appeals that has considered the issue has held that sexual harassment by supervisory personnel is automatically imputed to the employer when the harassment results in tangible job detriment to the subordinate employee. See Horn v. Duke Homes, Inc., Div. of Windsor Mobile Homes, 755 F.2d 599, 604-606 (CA7 1985); Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 80-81 (CA3 1983); Katz v. Dole, 709 F.2d 251, 255, n. 6 (CA4 1983); Henson v. Dundee, 682 F.2d 897, 910 (CA11 1982); Miller v. Bank of America, 600 F.2d 211, 213 (CA9 1979).The brief filed by the Solicitor General on behalf of the United States and the EEOC in this case suggests that a different rule should apply when a supervisor's harassment "merely" results in a discriminatory work environment. The Solicitor General concedes that sexual harassment that affects tangible job benefits is an exercise of authority delegated to the supervisor by the employer, and thus gives rise to employer liability. But, departing from the EEOC Guidelines, he argues that the case of a supervisor merely creating a discriminatory work environment is different because the supervisor "is not exercising, or threatening to exercise, actual or apparent authority to make personnel decisions affecting the victim." Brief for United States and EEOC as Amici Curiae 24. In the latter situation, he concludes, some further notice requirement should therefore be necessary.The Solicitor General's position is untenable. A supervisor's responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-to-day supervision of the work environment and with ensuring a safe, productive workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former. In both cases it is the authority vested in the supervisor by the employer that enables him to commit the wrong: it is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates. There is therefore no justification for a special rule, to be applied only in "hostile environment" cases, that sexual harassment does not create employer liability until the employee suffering the discrimination notifies other supervisors. No such requirement appears in the statute, and no such requirement can coherently be drawn from the law of agency.Agency principles and the goals of Title VII law make appropriate some limitation on the liability of employers for the acts of supervisors. Where, for example, a supervisor has no authority over an employee, because the two work in wholly different parts of the employer's business, it may be improper to find strict employer liability. See 29 CFR 1604.11(c) (1985). Those considerations, however, do not justify the creation of a special "notice" rule in hostile environment cases.Further, nothing would be gained by crafting such a rule. In the "pure" hostile environment case, where an employee files an EEOC complaint alleging sexual harassment in the workplace, the employee seeks not money damages but injunctive relief. See Bundy v. JacksonApp. D.C. 444, 456, n. 12, 641 F.2d 934, 946, n. 12 (1981). Under Title VII, the EEOC must notify an employer of charges made against it within 10 days after receipt of the complaint. 42 U.S.C. 2000e-5(b). If the charges appear to be based on "reasonable cause," the EEOC must attempt to eliminate the offending practice through "informal methods of conference, conciliation, and persuasion." Ibid. An employer whose internal procedures assertedly would have redressed the discrimination can avoid injunctive relief by employing these procedures after receiving notice of the complaint or during the conciliation period. Cf. Brief for United States and EEOC as Amici Curiae 26. Where a complainant, on the other hand, seeks backpay on the theory that a hostile work environment effected a constructive termination, the existence of an internal complaint procedure may be a factor in determining not the employer's liability but the remedies available against it. Where a complainant without good reason bypassed an internal complaint procedure she knew to be effective, a court may be reluctant to find constructive termination and thus to award reinstatement or backpay.I therefore reject the Solicitor General's position. I would apply in this case the same rules we apply in all other Title VII cases, and hold that sexual harassment by a supervisor of an employee under his supervision, leading to a discriminatory work environment, should be imputed to the employer for Title VII purposes regardless of whether the employee gave "notice" of the offense. |
6 | Petitioner provides its employees with in-plant cafeteria and vending machine services. The services are managed by an independent caterer, but petitioner has the right to review and approve the quality, quantity, and prices of the food served. When petitioner notified respondent union, which represents the employees, that the cafeteria and vending machine prices were to be increased, the union requested bargaining over the prices and services. Petitioner refused to bargain, and the union then filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging a refusal to bargain contrary to 8 (a) (5) of the National Labor Relations Act (NLRA). The duty of management and unions to bargain under 8 (a) (5) is defined by 8 (d) as the obligation to meet at reasonable times and confer in good faith with respect to wages, hours, and "other terms and conditions of employment." Taking its consistent view that in-plant food prices and services are "other terms and conditions of employment," the NLRB sustained the charge and ordered petitioner to bargain. The Court of Appeals enforced the order.Held: In-plant cafeteria and vending machine food and beverage prices and services are "terms and conditions of employment" subject to mandatory collective bargaining under 8 (a) (5) and 8 (d) of the NLRA. Pp. 494-503. (a) Since Congress has assigned to the NLRB the primary task of marking out the scope of the statutory language and duty to bargain, and since the NLRB has special expertise in classifying bargaining subjects as "terms and conditions of employment," its judgment as to what is a mandatory bargaining subject is entitled to considerable deference. Pp. 494-496. (b) The NLRB's judgment is subject to judicial review, but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute. Here, the NLRB's view is not an unreasonable or unprincipled construction of the statute and should be accepted and enforced. Pp. 497-498. (c) Including within 8 (d) the prices of in-plant-supplied food and beverages serves the ends of the NLRA by funneling an area of common dispute between employers and employees into collective bargaining. Pp. 498-500. (d) In-plant food prices and services are an aspect of the relationship between petitioner and its employees, and no third-party interest is directly implicated. Therefore, the standard applied in Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., , as to whether the third-party concern "vitally affects" the "terms and conditions" of the bargaining-unit employees' employment, has no application. Pp. 500-501. (e) Petitioner's argument that in-plant food prices and services are too trivial to qualify as mandatory bargaining subjects is without merit, especially where both the NLRB and the bargaining-unit employees have taken a contrary view. P. 501. (f) Problems created by constantly shifting food prices can be anticipated and provided for in the collective-bargaining agreement. To the extent that disputes are likely to be frequent and intense, more, not less, collective bargaining is the remedy. Pp. 501-502. (g) To require petitioner to bargain over in-plant food-service prices is not futile. Although the prices are set by the third-party caterer, petitioner retains the right to review and control such prices. In any event, an employer can always affect prices by initiating or altering a subsidy to a third-party supplier, such as that provided by petitioner in this case, and will typically have the right to change suppliers in the future. P. 503. 571 F.2d 993, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, MARSHALL, POWELL, REHNQUIST, and STEVENS, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 503. BLACKMUN, J., filed an opinion concurring in the result, post, p. 504.Theophil C. Kammholz argued the cause for petitioner. With him on the briefs were Stanley R. Strauss and William J. Rooney.Norton J. Come argued the cause for respondent National Labor Relations Board. With him on the brief were Solicitor General McCree, Deputy Solicitor General Wallace, and John S. Irving. John A. Fillion argued the cause for respondent United Automobile Workers Local 588. With him on the brief were M. Jay Whitman, Irving M. Friedman, and Jerome Schur.* [Footnote *] P. Kevin Connelly filed a brief for the National Automatic Merchandising Assn. as amicus curiae urging reversal.J. Albert Woll, Robert Mayer, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.MR. JUSTICE WHITE delivered the opinion of the Court.The principal question1 in this case is whether prices for in-plant cafeteria and vending machine food and beverages are "terms and conditions of employment" subject to mandatory collective bargaining under 8 (a) (5) and 8 (d) of the National Labor Relations Act. 49 Stat. 452, as amended, 29 U.S.C. 158 (a) (5) and 158 (d).2 IPetitioner, Ford Motor Co., operates an automotive parts stamping plant in Chicago Heights, Ill., employing 3,600 hourly rated production employees. These employees are represented in collective bargaining with Ford by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and by its administrative component, Local 588, a respondent here.For many years, Ford has undertaken to provide in-plant food services to its Chicago Heights employees.3 These services, which include both cafeterias and vending machines, are managed by an independent caterer, ARA Services, Inc. Under its contract with Ford, ARA furnishes the food, management, machines, and personnel in exchange for reimbursement of all direct costs and a 9% surcharge on net receipts.4 Ford has the right to review and approve the quality, quantity, and price of the food served.Over the years, Ford and the Union have negotiated about food services. The National Labor Relations Board (Board) found:"Since 1967, the local contract has included provisions dealing with vending and cafeteria services. The contracts have covered the staffing of service lines, adequate cafeteria supervision, restocking and repairing vending machines, and menu variety. The 1974 local agreement also states, `the Company recognized its continuing responsibility for the satisfactory performance of the caterer and for the expeditious handling of complaints concerned with such performance.'" Ford Motor Co. (Chicago Stamping Plant), 230 N. L. R. B. 716 (1977), enf'd, 571 F.2d 993 (CA7 1978). Ford, however, has always refused to bargain about the prices of food and beverages served in its in-plant facilities.On February 6, 1976, Ford notified the Union that cafeteria and vending machine prices would be increased shortly by unspecified amounts. The Union requested bargaining over both price and services and also asked for information relevant to Ford's involvement in food services in order to assist bargaining. These requests were refused by Ford, which took the position that food prices and services are not terms or conditions of employment subject to mandatory bargaining. The Union then filed an unfair labor practice charge with the Board, alleging a refusal to bargain contrary to 8 (a) (5).5 The Board sustained the charge, ordering Ford to bargain on both food prices and services and to supply the Union with the relevant information requested. Ford Motor Co. (Chicago Stamping Plant), supra. In doing so, the Board reaffirmed its position, expressed in several prior cases, that prices of in-plant-supplied food and beverages are generally mandatory bargaining subjects, a position that had not been accepted by reviewing courts.6 The Board also noted that the circumstances of this case made it a particularly strong one for invoking the duty to bargain.7 The case came before the Court of Appeals for the Seventh Circuit on Ford's petition for review and the Board's cross-petition for enforcement. That court, while adhering to its prior decision in NLRB v. Ladish Co., 538 F.2d 1267 (1976), which had refused enforcement of a Board order to bargain about in-plant food prices, enforced the Board's order here because, "under the facts and circumstances of this case, inplant cafeteria and vending machine food prices and services materially and significantly affect and have an impact upon terms and conditions of employment and therefore are mandatory subjects of bargaining." 571 F.2d, at 1000. The court was particularly influenced by the lack of reasonable eating alternatives for employees, declaring that "[t]he food one must pay for and eat as a captive customer within the employer's plant can be viewed as a physical dimension of one's working environment." Ibid.Because of the importance of the issue and the apparent conflict between the decision below and decisions of other Circuits, see n. 6, supra, we granted certiorari. . We affirm the judgment of the Court of Appeals for the Seventh Circuit enforcing the Board's order to bargain.IIThe Board has consistently held that in-plant food prices are among those terms and conditions of employment defined in 8 (d) and about which the employer and union must bargain under 8 (a) (5) and 8 (b) (3). See n. 6, supra. Because it is evident that Congress assigned to the Board the primary task of construing these provisions in the course of adjudicating charges of unfair refusals to bargain and because the "classification of bargaining subjects as `terms or conditions of employment' is a matter concerning which the Board has special expertise," Meat Cutters v. Jewel Tea Co., , its judgment as to what is a mandatory bargaining subject is entitled to considerable deference.Section 8 (a) (5) of the National Labor Relations Act, as originally enacted, declared it an unfair practice for the employer to refuse to bargain collectively. Act of July 5, 1935, 49 Stat. 453. Although the Act did not purport to define the subjects of collective bargaining, 9 (a) made the union selected by a majority in a bargaining unit the exclusive representative of the employees for bargaining about "rates of pay, wages, hours of employment, or other conditions of employment." Under these provisions, the Board was left with the task of identifying on a case-by-case basis those "other conditions of employment" over which management was required to bargain.In 1947, the Taft-Hartley Act amended the National Labor Relations Act to obligate unions as well as management to bargain; and 8 (d) explicitly defined the duty of both sides to bargain as the obligation to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment ... ." 61 Stat. 142, now codified at 29 U.S.C. 158 (d). The original House bill had contained a specific listing of the issues subject to mandatory bargaining, H. R. 3020, 80th Cong., 1st Sess., 2 (11) (1947); H. R. Rep. No. 245, 80th Cong., 1st Sess., 22-23, 49 (1947), but this attempt to "strait-jacke[t]" and to "limit narrowly the subject matters appropriate for collective bargaining," id., at 71 (minority report);8 see also 93 Cong. Rec. 3446-3447 (1947) (remarks of Rep. Klein), was rejected in conference in favor of the more general language adopted by the Senate and now appearing in 8 (d). S. 1126, 80th Cong., 1st Sess., 8 (d) (1947); see 93 Cong. Rec. 6444 (1947) (summary report of Sen. Taft); cf. H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 8, 34 (1947). It is thus evident that Congress made a conscious decision to continue its delegation to the Board of the primary responsibility of marking out the scope of the statutory language and of the statutory duty to bargain. This case, therefore, is one of those situations in which we should "recognize without hesitation the primary function and responsibility of the Board ...," NLRB v. Insurance Agents, , which is that "of applying the general provisions of the Act to the complexities of industrial life ... and of `[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases' from its special understanding of `the actualities of industrial relations.'" NLRB v. Erie Resistor Corp., , quoting NLRB v. Steelworkers, .9 Of course, the judgment of the Board is subject to judicial review; but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute. NLRB v. Iron Workers, . In the past we have refused enforcement of Board orders where they had "no reasonable basis in law," either because the proper legal standard was not applied or because the Board applied the correct standard but failed to give the plain language of the standard its ordinary meaning. Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., . We have also parted company with the Board's interpretation where it was "fundamentally inconsistent with the structure of the Act" and an attempt to usurp "major policy decisions properly made by Congress." American Ship Building Co. v. NLRB, . Similarly, in NLRB v. Insurance Agents, supra, at 499, we could not accept the Board's application of the Act where we were convinced that the Board was moving "into a new area of regulation which Congress had not committed to it."The Board is vulnerable on none of these grounds in this case. Construing and applying the duty to bargain and the language of 8 (d), "other terms and conditions of employment," are tasks lying at the heart of the Board's function. With all due respect to the Courts of Appeals that have held otherwise, we conclude that the Board's consistent view that in-plant food prices and services are mandatory bargaining subjects is not an unreasonable or unprincipled construction of the statute and that it should be accepted and enforced. It is not suggested by petitioner that an employee should work a full 8-hour shift without stopping to eat. It reasonably follows that the availability of food during working hours and the conditions under which it is to be consumed are matters of deep concern to workers, and one need not strain to consider them to be among those "conditions" of employment that should be subject to the mutual duty to bargain. By the same token, where the employer has chosen, apparently in his own interest, to make available a system of in-plant feeding facilities for his employees, the prices at which food is offered and other aspects of this service may reasonably be considered among those subjects about which management and union must bargain.10 The terms and conditions under which food is available on the job are plainly germane to the "working environment," Fibreboard Paper Products Corp. v. NLRB, (STEWART, J., concurring). Furthermore, the company is not in the business of selling food to its employees, and the establishment of in-plant food prices is not among those "managerial decisions, which lie at the core of entrepreneurial control." Id., at 223 (STEWART, J., concurring). The Board is in no sense attempting to permit the Union to usurp managerial decisionmaking; nor is it seeking to regulate an area from which Congress intended to exclude it.Including within 8 (d) the prices of in-plant-supplied food and beverages would also serve the ends of the National Labor Relations Act. "The object of this Act was not to allow governmental regulation of the terms and conditions of employment, but rather to insure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement." H. K. Porter Co. v. NLRB, . As illustrated by the facts of this case, substantial disputes can arise over the pricing of in-plant-supplied food and beverages. National labor policy contemplates that areas of common dispute between employers and employees be funneled into collective bargaining. The assumption is that this is preferable to allowing recurring disputes to fester outside the negotiation process until strikes or other forms of economic warfare occur.The trend of industrial practice supports this conclusion. In response to increasing employee concern over the issue, many contracts are now being negotiated that contain provisions concerning in-plant food services.11 In this case, as already noted, local agreements between Ford and the Union have contained detailed provisions about nonprice aspects of in-plant food services for several years. Although not conclusive, current industrial practice is highly relevant in construing the phrase "terms and conditions of employment."12 IIIFord nevertheless argues against classifying food prices and services as mandatory bargaining subjects because they do not "vitally affect" the terms and conditions of employment within the meaning of the standard assertedly established by Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S., at 176, and because they are trivial matters over which neither party should be required to bargain.There is no merit to either of these arguments. First, Ford has misconstrued Pittsburgh Plate Glass. That case made it clear that while 8 (d) normally reaches "only issues that settle an aspect of the relationship between the employer and employees[,] matters involving individuals outside the employment relationship ... are not wholly excluded." 404 U.S., at 178. In such instances, as in Teamsters v. Oliver, 358 U.S., 283 (1959), and Fibreboard Paper Products Corp. v. NLRB, , the test is not whether the "third-party concern is antagonistic to or compatible with the interests of bargaining-unit employees, but whether it vitally affects the `terms and conditions' of their employment." 404 U.S., at 179. Here, however, the matter of in-plant food prices and services is an aspect of the relationship between Ford and its own employees. No third-party interest is directly implicated, and the standard of Pittsburgh Plate Glass has no application.As for the argument that in-plant food prices and service are too trivial to qualify as mandatory subjects, the Board has a contrary view, and we have no basis for rejecting it. It is also clear that the bargaining-unit employees in this case considered the matter far from trivial since they pressed an unsuccessful boycott to secure a voice in setting food prices. They evidently felt, and common sense also tells us, that even minor increases in the cost of meals can amount to a substantial sum of money over time. In any event, we accept the Board's view that in-plant food prices and service are conditions of employment and are subject to the duty to bargain.Ford also argues that the Board's position will result in unnecessary disruption because any small change in price or service will trigger the obligation to bargain. The problem, it is said, will be particularly acute in situations where several unions are involved,13 possibly requiring endless rounds of negotiations over issues as minor as the price of a cup of coffee or a soft drink.These concerns have been thought exaggerated by the Board. Its position in this case, as in all past cases involving the same issue, is that it is sufficient compliance with the statutory mandate if management honors a specific union request for bargaining about changes that have been made or are to be made. Ford Motor Co. (Chicago Stamping Plant), 230 N. L. R. B., at 718; Westinghouse Electric Corp., 156 N. L. R. B. 1080, 1081, enf'd, 369 F.2d 891 (CA4 1966), rev'd en banc, 387 F.2d 542 (1967). The Board apparently assumes that, as a practical matter, requests to bargain will not be lightly made. Moreover, problems created by constantly shifting food prices can be anticipated and provided for in the collective-bargaining agreement. Furthermore, if it is true that disputes over food prices are likely to be frequent and intense, it follows that more, not less, collective bargaining is the remedy. This is the assumption of national labor policy, and it is soundly supported by both reason and experience.14 Finally, Ford asserts that to require it to engage in bargaining over in-plant food service prices would be futile because those prices are set by a third-party supplier, ARA. It is true that ARA sets vending machine and cafeteria prices, but under Ford's contract with ARA, Ford retains the right to review and control food services and prices. In any event, an employer can always affect prices by initiating or altering a subsidy to the third-party supplier such as that provided by Ford in this case, and will typically have the right to change suppliers at some point in the future. To this extent the employer holds future, if not present, leverage over in-plant food services and prices.15 We affirm, therefore, the Court of Appeals' judgment upholding the Board's determination in this case that in-plant food services and prices are "terms and conditions of employment" subject to mandatory bargaining under 8 (a) (5) and 8 (d) of the National Labor Relations Act. So ordered. |
3 | Respondents are owners of so-called "uncontrolled grass lands" along the San Joaquin River in California which depend for water upon seasonal inundations resulting from overflows of the River. The value of these lands will be impaired by the construction by the United States of the Friant Dam and its dependent irrigation system, as part of the Central Valley Project, a gigantic undertaking by the Federal Government to redistribute the principal fresh water resources of California. While the project will have some relatively insignificant effects on navigation, its principal economic effects pertain to values realized from storage and redistribution of water for power, irrigation, reclamation, flood control and other similar purposes. Claiming under California law riparian rights to the benefits from the annual inundations of their lands, respondents sued in the Court of Claims for compensation. The Government contended that the damage was noncompensable, on the ground that the entire project was authorized by Congress, under the commerce power, as a measure for the control of navigation. Held: Judgments of the Court of Claims in favor of respondents are affirmed. Pp. 727-756. 1. Even if it be assumed that Friant Dam bears some relation to control of navigation, nevertheless Congress elected to treat it as a reclamation project, to recognize any state-created rights and to take them under its power of eminent domain; and the provisions of the Reclamation Act, 43 U.S.C. 371 et seq., providing for reimbursement, are applicable to these claims. Pp. 731-742. (a) In undertaking the Friant projects and implementing the work as carried forward by the Reclamation Bureau, Congress proceeded on the basis of full recognition of water rights having valid existence under state law. Pp. 734-736. (b) Notwithstanding its general declaration of purpose that the Central Valley Project as a whole is to improve navigation, Congress did not intend to invoke its navigation servitude as to each and every one of this group of coordinated projects and has not attempted to take, or authorized the taking, without compensation, of rights valid under state law. Pp. 736-739. (c) The administrative practice with reference to this project supports the view that it is a reclamation project involving respect for existing water rights and compensation to owners thereof. Pp. 739-742. 2. Under California law, respondents had riparian rights to periodic inundations of their lands by seasonal overflows of the River; these rights are compensable under California law; and the awards of the Court of Claims correctly applied the law of California as made applicable to these claims by Congress. Pp. 742-755. 3. This Court declines to set aside the determination of the Court of Claims that the date from which interest is to be allowed is October 20, 1941, the date of the first substantial impoundment of water, even though it had not then prevented benefits from reaching the property. P. 755. 4. This Court accepts without review a finding by the Court of Claims construing reservations in deeds of certain of the claimants, a question governed by conveyancing and real property law peculiar to this one case, depending on local law, and not of general interest, and on which there is no manifest error in the finding of the Court of Claims. P. 755. 5. The Court of Claims adequately described the rights taken and for which it made an award. P. 756. 111 Ct. Cl. 1, 89, 76 F. Supp. 87, 99, affirmed.[Footnote *] Together with No. 5, United States v. Potter; No. 6, United States v. Erreca; No. 7, United States v. James J. Stevinson (a Corporation); No. 8, United States v. Stevinson; and No. 9, United States v. 3-H Securities Co., also on certiorari to the same court. The Court of Claims severally awarded compensation to respondents for the taking by the United States, through the construction of Friant Dam, of their riparian rights to annual inundations of their lands along the San Joaquin River in California. 111 Ct. Cl. 1, 89, 76 F. Supp. 87, 99. This Court granted certiorari. . Affirmed, p. 756.Ralph S. Boyd argued the cause for the United States. With him on the briefs were Solicitor General Perlman, Assistant Attorney General Vanech and Roger P. Marquis. Robert L. Stern was also with them on the brief on the original argument and Stanley M. Silverberg was also with them on the brief on the reargument.Edward F. Treadwell argued the cause for respondents. With him on the brief was Reginald S. Laughlin. Samuel I. Jacobs was also of counsel for Potter, respondent in No. 5.By special leave of Court, Warner W. Gardner argued the cause for Gill et al., as amici curiae, urging affirmance. With him on the brief on the original argument was Milton T. Farmer and with him on the brief on the reargument was A. E. Chandler.An amici curiae brief, urging affirmance, was filed on behalf of the States of California, by Fred N. Howser, Attorney General, Arvin B. Shaw, Jr., Assistant Attorney General, Gilbert F. Nelson, Deputy Attorney General, and Northcutt Ely; Idaho, by Robert E. Smylie, Attorney General; Kansas, by Edward F. Arn, Attorney General; Nebraska, by James H. Anderson, Attorney General; Nevada, by Alan Bible, Attorney General; New Mexico, by Joe L. Martinez, Attorney General; North Dakota, by Nels G. Johnson, Attorney General; Oregon, by George Neuner, Attorney General; South Dakota, by Sigurd Anderson, Attorney General; and Washington, by Smith Troy, Attorney General.Harry W. Horton, W. R. Bailey and Arvin B. Shaw, Jr. filed a brief for the Irrigation Districts Association of California, as amicus curiae, urging affirmance.MR. JUSTICE JACKSON delivered the opinion of the Court.We are asked to relieve the United States from six awards by the Court of Claims as just compensation for deprivation of riparian rights along the San Joaquin River in California caused by construction of Friant Dam, and its dependent irrigation system, as part of the Central Valley Project.This is a gigantic undertaking to redistribute the principal fresh-water resources of California. Central Valley is a vast basin, stretching over 400 miles on its polar axis and a hundred in width, in the heart of California. Bounded by the Sierra Nevada on the east and by coastal ranges on the west, it consists actually of two separate river valleys which merge in a single pass to the sea at the Golden Gate. Its rich acres, counted in the millions, are deficient in rainfall and must remain generally arid and unfruitful unless artificially watered.Water resources there are, if they can be captured and distributed over the land. From the highland barricade at the north the Sacramento River flows southerly, while from the Yosemite region at the southeast the San Joaquin River winds northeasterly until the two meet and consort in outlet to the sea through estuaries that connect with San Francisco Bay. These dominating rivers collect tribute from many mountain currents, carry their hoardings past parched plains and thriftlessly dissipate them in the Pacific tides. When it is sought to make these streams yield their wasting treasures to the lands they traverse, men are confronted with a paradox of nature; for the Sacramento, with almost twice the water, is accessible to the least land, whereas about three-fifths of the valley lies in the domain of the less affluent San Joaquin.To harness these wasting waters, overcome this perversity of nature and make water available where it would be of greatest service, the State of California proposed to re-engineer its natural water distribution. This project was taken over by the United States in 1935 and has since been a federal enterprise. The plan, in broad outline, is to capture and store waters of both rivers and many of their tributaries in their highland basins, in some cases taking advantage of the resulting head for generation of electric energy. Shasta Dam in the north will produce power for use throughout much of the State and will provide a great reservoir to equalize seasonal flows of the Sacramento. A more dramatic feature of the plan is the water storage and irrigation system at the other end of the valley. There the waters of the San Joaquin will be arrested at Friant, where they would take leave of the mountains, and will be diverted north and south through a system of canals and sold to irrigate more than a million acres of land, some as far as 160 miles away. A cost of refreshing this great expanse of semiarid land is that, except for occasional spills, only a dry river bed will cross the plain below the dam. Here, however, surplus waters from the north are utilized, for through a 150-mile canal Sacramento water is to be pumped to the cultivated lands formerly dependent on the San Joaquin.Both rivers afford navigation - the Sacramento for a considerable distance inland, the San Joaquin practically only at tidewater levels. The plan will have navigation consequences, principally on the Sacramento; but the effects on navigation are economically insignificant as compared with the values realized from redistribution of water benefits.Such a project inevitably unsettles many advantages long enjoyed in reliance upon the natural order, and it is with deprivation of such benefits that we are here concerned.Claimants own land parcels riparian to the San Joaquin.1 These are called "uncontrolled grass lands," to distinguish them from either crop lands or "controlled grass lands," both of which have long been irrigated through controlled systems supplied from the stream. Neither of these latter will be injured by the diversion, for they are to be provided with the replacement water from the Sacramento.Uncontrolled grass lands involved in the claims are parts of a large riparian area which benefits from the natural seasonal overflow of the stream. Each year, with predictable regularity, the stream swells and submerges and saturates these low-lying lands. They are moistened and enriched by these inundations so that forage and pasturage thrive, as otherwise they can not. The high stage of the river, while fluctuating in height and variable in arrival, is not a flood in the sense of an abnormal and sudden deluge. The river rises and falls in rhythm with the cycle of seasons, expansion being normal for its time as curtailment is for others, and both are repeated with considerable constancy over the years. It should be noted, however, that claimants' benefit comes only from the very crest of this seasonal stage, which crest must be elevated and borne to their lands on the base of a full river, none of which can be utilized for irrigation above and little of it below them. Their claim of right is, in other words, to enjoy natural, seasonal fluctuation unhindered, which presupposes a peak flow largely unutilized.The project puts an end to all this. Except at rare intervals, there will be no spill over Friant Dam, the bed of the San Joaquin along claimants' lands will be parched, and their grass lands will be barren. Unlike the supply utilized for nearby crop and "controlled" lands, the vanishing San Joaquin inundation cannot be replaced with Sacramento water. Claimants have been severally awarded compensation for this taking of their annual inundations, on the theory that, as part of the natural flow, its continuance is a right annexed to their riparian property. 111 Ct. Cl. 1, 89, 76 F. Supp. 87, 99. The principal issues are common to the six cases in which we granted certiorari. . I. NAVIGATION OR RECLAMATION PROJECT? The Solicitor General contends that this overall project, and each part of it, has been authorized by Congress, under the commerce power, as a measure for control of navigation. Claimants on the other hand urge that although improvement of navigation was one objective of the Central Valley undertaking as a whole, nevertheless construction of the Friant Dam and the consequent taking of San Joaquin water rights had no purpose or effect except for irrigation and reclamation. This, it is claimed, was not only the actual, but the avowed purpose of Congress. On these conflicting assumptions the parties predicate contrary conclusions as to the right to compensation.In the Rivers and Harbors Act of August 26, 1937, 2, 50 Stat. 844, 850, and again in the Rivers and Harbors Act of October 17, 1940, 54 Stat. 1198, 1199-1200, Congress said that "the entire Central Valley project ... is ... declared to be for the purposes of improving navigation, regulating the flow of the San Joaquin River and the Sacramento River, controlling floods, providing for storage and for the delivery of the stored waters thereof ... ." The 1937 Act also provided that "the said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control ... ."But it also is true, as pointed out by claimants, that in these Acts Congress expressly "reauthorized"2 a project already initiated by President Roosevelt, who, on September 10, 1935, made allotment of funds for construction of Friant Dam and canals under the Federal Emergency Relief Appropriation Act, 49 Stat. 115, 4, and provided that they "shall be reimbursable in accordance with the reclamation laws."3 A finding of feasibility, as required by law,4 was made by the Secretary of the Interior on November 26, 1935, making no reference to navigation, and his recommendation of "the Central Valley development as a Federal reclamation project" was approved by the President on December 2, 1935.When it "reauthorized" the Central Valley undertaking, Congress in the same Act provided that "the provisions of the reclamation law,5 as amended, shall govern the repayment of expenditures and the construction, operation, and maintenance of the dams, canals, power plants, pumping plants, transmission lines, and incidental works deemed necessary to said entire project, and the Secretary of the Interior may enter into repayment contracts, and other necessary contracts, with State agencies, authorities, associations, persons, and corporations, either public or private, including all agencies with which contracts are authorized under the reclamation law, and may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes: ... ."The Central Valley basin development envisions, in one sense, an integrated undertaking, but also an aggregate of many subsidiary projects, each of which is of first magnitude. It consists of thirty-eight major dams and reservoirs bordering the valley floor and scores of smaller ones in headwaters. It contemplates twenty-eight hydropower generating stations. It includes hundreds of miles of main canals, thousands of miles of laterals and drains, electric transmission and feeder lines and substations, and a vast network of structures for the control and use of water on two million acres of land already irrigated, three million acres of land to be newly irrigated, 360,000 acres in the delta needing protection from intrusions of salt water, and for municipal and miscellaneous purposes including cities, towns, duck clubs and game refuges. These projects are not only widely separated geographically, many of them physically independent in operation, but they are authorized in separate acts from year to year and are to be constructed at different times over a considerable span of years. A formula has been approved by the President by which multiple purpose dams are the responsibility of the Bureau of Reclamation, and dams and other works only for flood control are exclusively the responsibility of the Army Engineers.6 The entire Friant and San Joaquin projects at all times have been administered by the Bureau of Reclamation.We cannot disagree with claimants' contention that in undertaking these Friant projects and implementing the work as carried forward by the Reclamation Bureau, Congress proceeded on the basis of full recognition of water rights having valid existence under state law. By its command that the provisions of the reclamation law should govern the construction, operation, and maintenance of the several construction projects, Congress directed the Secretary of the Interior to proceed in conformity with state laws, giving full recognition to every right vested under those laws.7 Cf. Nebraska v. Wyoming, ; Power Co. v. Cement Co., ; Nebraska v. Wyoming, ; Mason Co. v. Tax Comm'n, . In this respect, Congress' action parallels that in Ford & Son v. Little Falls Fibre Co., . The original plan called for purchase of water rights and included an estimate of their cost.8 We are advised by the Government that at least throughout administration of California reclamation projects it has been the consistent practice of the Bureau of Reclamation to respect such property rights. Such has specifically been the Bureau's practice in connection with the Friant project, and this has been reported to Congress,9 which has responded some nine times in the past twelve years to requests for appropriations to meet such expenses. We think this amounts, not to authorizations and declarations creating causes of action against the United States, but to awareness and approval of administrative construction. We think it clear that throughout the conception, enactment and subsequent administration of the plan, Congress has recognized the property status of water rights vested under California law.It is not to be doubted that the totality of a plan so comprehensive has some legitimate relation to control of inland navigation or that particular components may be described without pretense as navigation and flood control projects. This made it appropriate that Congress should justify making this undertaking a national burden by general reference to its power over commerce and navigation.The Government contends that the overall declaration of purpose is applicable to Friant Dam and related irrigation facilities as an integral part of "what Congress quite properly treated as a unit." Adverting to United States v. Willow River Co., ; United States v. Commodore Park, ; United States v. Appalachian Power Co., ; United States v. Chandler-Dunbar Co., , the Government relies on the rule that it does not have to compensate for destruction of riparian interests over which at the point of conflict it has a superior navigation easement the exercise of which occasions the damage. And irrespective of divisibility of the entire Central Valley undertaking, the Government contends that Friant Dam involves a measure of flood control, an end which is sensibly related to control of navigation. Oklahoma v. Atkinson Co., .Claimants, on the other hand, urge that at least the Friant Dam project was wholly unrelated to navigation ends and could not be controlled by the general Congressional declaration of purpose. They point out that, although definitions of navigation have been expanded, United States v. Appalachian Power Co., supra, in every instance in which this Court has denied compensation for deprivation of riparian rights it has specifically noted that the federal undertaking bore some positive relation to control of navigation. United States v. Willow River Co., supra, 510; United States v. Commodore Park, supra, 391; United States v. Appalachian Power Co., supra, 423; United States v. Chandler-Dunbar Co., supra, 62; and cases cited. And, referring to International Paper Co. v. United States, ; United States v. River Rouge Co., , and cases cited, they observe that this Court has never permitted the Government to pervert its navigation servitude into a right to destroy riparian interests without reimbursement where no navigation purpose existed.Since we do not agree that Congress intended to invoke its navigation servitude as to each and every one of this group of coordinated projects, we do not reach the constitutional or other issues thus posed. Accordingly, we need not decide whether a general declaration of purpose is controlling where interference with navigation is neither the means, South Carolina v. Georgia, , nor the consequence, United States v. Commodore Park, supra, of its advancement elsewhere. Similarly, we need not ponder whether, by virtue of a highly fictional navigation purpose, the Government could destroy the flow of a navigable stream and carry away its waters for sale to private interests without compensation to those deprived of them. We have never held that or anything like it, and we need not here pass on any question of constitutional power; for we do not find that Congress has attempted to take or authorized the taking, without compensation, of any rights valid under state law.On the contrary, Congress' general direction of purpose we think was intended to help meet any objection to its constitutional power to undertake this big bundle of big projects. The custom of invoking the navigation power in authorizing improvements appears to have had its origin when the power of the Central Government to make internal improvements was contested and in doubt. It was not until 1936 that this Court in United States v. Butler, , declared for the first time, and without dissent on this point, that, in conferring power upon Congress to tax "to pay the Debts and provide for the common Defence and general Welfare of the United States," the Constitution delegates a power separate and distinct from those later enumerated, and one not restricted by them, and that Congress has a substantive power to tax and appropriate for the general welfare, limited only by the requirement that it shall be exercised for the common benefit as distinguished from some mere local purpose. If any doubt of this power remained, it was laid to rest the following year in Helvering v. Davis, . Thus the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement, is now as clear and ample as its power to accomplish the same results indirectly through resort to strained interpretation of the power over navigation.10 But in view of this background we think that reference to the navigation power was in justification of federal action on the whole, not for effect on private rights at every location along each component project. Even if we assume, with the Government, that Friant Dam in fact bears some relation to control of navigation, we think nevertheless that Congress realistically elected to treat it as a reclamation project. It was so conceived and authorized by the President and it was so represented to Congress. Whether Congress could have chosen to take claimants' rights by the exercise of its dominant navigation servitude is immaterial. By directing the Secretary to proceed under the Reclamation Act of 1902, Congress elected not "to in any way interfere with the laws of any State ... relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder." 32 Stat. 388, 390.We cannot twist these words into an election on the part of Congress under its navigation power to take such water rights without compensation. In the language of Mr. Justice Holmes, writing for the Court in International Paper Co. v. United States, , Congress "proceeded on the footing of a full recognition of [riparians'] rights and of the Government's duty to pay for the taking that [it] purported to accomplish." We conclude that, whether required to do so or not, Congress elected to recognize any state-created rights and to take them under its power of eminent domain.11 We are guided to this conclusion by the interpretation placed on Congress' Acts by the Reclamation Bureau, which, in administering the project, has at all times pursued a course impossible to reconcile with present contentions of the Government. From the beginning, it has acted on the assumption that its Friant undertaking was a reclamation project. Even a casual inspection of its committee hearings and reports leaves no doubt that Congress was familiar with and approved this interpretation. Although the Solicitor General contends that, because of the navigation purpose remotely involved, deprivation of water rights along the San Joaquin is not compensable, we have observed that the plan as originally adopted and as carried out by the Bureau included replacement at great expense of all water formerly used for crops and "controlled grass lands" and purchase of that used on marginal pasture lands.12 It has consistently advised the Congress that it was purchasing San Joaquin water rights and appropriations have been made accordingly.13 Moreover, Congress14 and the water users15 have been advised that, in prosecution of the work, existing water rights would be respected. This administrative practice has been extended even to the lands in question. Pursuant to its plan, the Bureau offered to purchase the rights of claimants in Nos. 7, 8 and 9, but the parties could not agree on the price. In addition, it entered into a written contract with Miller & Lux, Inc., purchasing for $2,450,000 riparian rights which included some identical with those the Government now denies to exist. In fact it includes the very rights now asserted by claimants Gerlach, Erreca and Potter, who obtained title to their riparian properties from Miller & Lux. Because of certain reservations in their grants, it was possible that Miller & Lux retained the rights riparian to these properties. The Government therefore agreed with Miller & Lux that the sum of $511,350 should be deposited with an escrow agent. If final judgments obligate the United States to make compensation to Miller & Lux grantees for such riparian grass lands, the United States shall be reimbursed from the escrow fund in an amount not exceeding $9 per acre. However, if final judgments dismiss the claims, the escrowed funds go to Miller & Lux. The substance of this strange transaction is that the Government, which now asks us to hold that there are no such riparian rights, has already bought and paid for them at the price which the Court of Claims has allowed. The results of the Government's bargain are that, if we hold there are no rights, Miller & Lux will be paid for them; and, if we hold there are such rights, they will be paid from what otherwise goes to Miller & Lux. As to these three cases, the Government is defending against the claims, not as the real party in interest, but because it undertook to do so on behalf of Miller & Lux.Of course, this Court is not bound by administrative mistakes. If the Government had contracted to pay for rights which are nonexistent, it would not preclude us from upholding later and better advised contentions. But when a project has been regarded by the highest Executive authorities as a reclamation project, and has been carried as such from its initiation to final payment for these rights, and Congress, knowing its history, has given the approvals that it has, we think there is no ground for asking us to hold that the provisions of the Reclamation Act do not apply. We hold that they do apply and we therefore turn, as that Act bids us, to the laws of the State to determine the rights and liabilities of landowner and appropriator.II. CLAIMANTS' RIPARIAN RIGHTS UNDER CALIFORNIA LAW. The adversaries in this case invoke rival doctrines of water law which have been in competition throughout California legal history. The claims are expressly based on common-law riparian-rights doctrines as declared by California courts. The United States, on the other hand, by virtue of the Reclamation Act, stands in the position of an upstream appropriator for a beneficial use.The governing water law of California must now be derived from a 1928 Amendment to its Constitution16 which compresses into a single paragraph a reconciliation and modification of doctrines evolved in litigations that have vexed its judiciary for a century. Its text leaves many questions to be answered, and neither it nor any legislation or judicial decision provides a direct and explicit determination of the present state law on issues before us. But since the federal law adopts that of the State as the test of federal liability, we must venture a conclusion as to peculiarly local law. We can do so only in the light of a long history of strife and doctrinal conflict, which California says must be known by every judge of these matters, Conger v. Weaver, 6 Cal. 548, and in continuity with which both the cryptic text of the Amendment and the policy of federal statutes become more intelligible.17 Upon acquiring statehood in 1850, California adopted the common law of England as the rule of decision in its courts when not inconsistent with the Federal or State Constitutions or State legislation. In the middle of the Eighteenth Century, English common law included a body of water doctrine known as riparian rights. That also was the general Mexican law, if it had any lingering authority there, but see Boquillas Cattle Co. v. Curtis, ; Gutierres v. Albuquerque Land Co., , except for a peculiar concession to "pueblos." Indeed, riparian-rights doctrines prevailed throughout Western civilization.As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes - things common to all and property of none. Such was the doctrine spread by civil-law commentators and embodied in the Napoleonic Code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law.Riparian rights developed where lands were amply watered by rainfall. The primary natural asset was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over private lands, access became a right annexed to the shore. The law followed the principle of equality which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many variations, each seeking to provide incentives for development of its natural advantages. These are set forth in Shively v. Bowlby, . But it may be said that when California adopted it the general philosophy of the riparian-rights system had become common law throughout what was then the United States.Then in the mountains of California there developed a combination of circumstances unprecedented in the long and litigious history of running water. Its effects on water laws were also unprecedented. Almost at the time when Mexico ceded California, with other territories, to the United States, gold was discovered there and a rush of hardy, aggressive and venturesome pioneers began. If the high lands were to yield their treasure to prospectors, water was essential to separate the precious from the dross. The miner's need was more than a convenience - it was a necessity; and necessity knows no law. But conditions were favorable for necessity to make law, and it did - law unlike any that had been known in any part of the Western world.The adventurers were in a little-inhabited, unsurveyed, unowned and almost ungoverned country, theretofore thought to have little value. It had become public domain of the United States and miners regarded waters as well as lands subject to preemption. To be first in possession was to be best in title. Priority - of discovery, location and appropriation - was the primary source of rights. Fortuitously, along lower reaches of the streams there were no riparian owners to be injured and none to challenge customs of the miners.In September, 1850, California was admitted to the Union as a State. In 1851, its first Legislature enacted a Civil Practice Act which contained a provision that "in actions respecting `Mining Claims,' ... customs, usages, or regulations, when not in conflict with the Constitution and Laws of this State, shall govern the decision of the action."18 The custom of appropriating water thus acquired some authority, notwithstanding its contradiction of the common law. A practice that was law in the mountains was contrary to the law on the books. Here were provocations to controversy that soon came to the newly established state courts.In California, as everywhere, the law of flowing streams has been the product of contentions between upper and lower levels. Thus when Matthew Irwin built a dam and canal on the upper San Joaquin for appropriating water to supply miners, downstream settler Robert Phillips tore it down and asserted his own riparian right to have the water descend to him in its natural volume. Faced with this issue between custom and doctrine, the California Supreme Court escaped by observing that both claims were located on public domain, and that neither party could show proprietorship. Accordingly, as between two mere squatters, priority of appropriation established the better right. But the court gave warning that this appropriative right might not prevail against a downstream riparian who claimed by virtue of proprietorship. Irwin v. Phillips, 5 Cal. 140 (1855).The United States, as owner of the whole public domain, was such a proprietor, and the decision made appropriations vulnerable to its challenge. It also left the pioneers in position of trespassers. They were taught that the tenure of their preemptions and appropriations was precarious when, in 1858, the Attorney General of the United States intervened in private litigation to contend in federal court that the land in dispute was public, and asserted generally a right to restrain all mining operations upon public land. His intervention was successful, an injunction forbade working the mine in question, and a writ issued under the hand of President Lincoln directing military authorities to remove the miners. United States v. Parrott, 1 McAll. (C. C.) 271.Demands of mining and water interests that the Federal Government relieve their uncertain status were loud, but went unheeded amidst the problems that came with civil war. But after the war closed, the issue was again precipitated by a bill introduced at the request of the Secretary of the Treasury to have the United States withdraw all mines from the miners, appraise and sell them, reserving a royalty after sale. This the Secretary believed would yield a large revenue and the public lands would help pay the public war debt. However, the private interests prevailed. The Act of July 26, 1866, 14 Stat. 251, R. S. 2339, declared the mining lands free and open to preemption and included the following: "That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage." 14 Stat. 251, 253, 43 U.S.C. 661. This section was expounded by Mr. Justice Field in Jennison v. Kirk, , as foreclosing further proprietary objection by the United States to appropriations which rested upon local custom. This Court regarded the Act as "an unequivocal grant" for existing diversions of water on the public lands. Broder v. Water Co., . Thus Congress made good appropriations in being as against a later patent to riparian parcels of the public domain, and removed the cloud cast by adverse federal claims.While this was being accomplished, changed conditions brought new adversaries to contend against the appropriators. The Homestead Act of 1862 had opened agricultural lands to preemption and set up a method of acquiring formal title. 12 Stat. 392. Farms and ranches appeared along the streams and wanted the protection that the common law would give to their natural flow. The Act of 1866, as we have noted, made appropriators liable for damage to settlers with whose possession they interfered. The Supreme Court of California decided that a riparian owner came into certain rights which he could assert against a subsequent appropriator of the waters of the stream, even though he could not as against a prior appropriation. Crandall v. Woods, 8 Cal. 136.In 1886 came the decisive battle of Lux v. Haggin, 69 Cal. 255, 10 P. 674. Haggin organized an irrigation company and claimed the right to appropriate the entire flow of the Kern River for irrigation and to destroy any benefits for riparian owners downstream. The court held that the doctrine of riparian rights still prevailed in California, that such right attached to riparian land as soon as it became private property and, while subject to appropriations made prior to that time, it is free from all hostile appropriations thereafter. Thus California set itself apart by its effort to reconcile the system of riparian rights with the system of appropriation, whereas other arid states rejected the doctrine of riparian rights forthrightly and completely.The Twentieth Century inducted new parties into the old struggle. Gigantic electric power and irrigation projects succeeded smaller operations, and municipalities sought to by-pass intervening agricultural lands and go into the mountains to appropriate the streams for city supply. Increasing dependence of all branches of the State's economy, both rural and urban, upon water centered attention upon its conservation and maximum utilization.This objective seemed frustrated by the riparian-rights doctrine when, in 1926, the California Supreme Court decided Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607, and this Court, after argument, dismissed certiorari for want of a federal question, . That case involved just such questions as we have here. Southern California Edison projected a large storage of San Joaquin waters in the mountains primarily for power generation. Plaintiffs' ranch, like lands of claimants, had always been naturally irrigated by overflow and thus naturally was productive property. Appropriation by the power company threatened to impair this overflow and destroy the value of the ranch. The company was unwilling to compensate the damage. The court held that common law of riparian rights must prevail against the proposed utilization and, notwithstanding the economic waste involved in plaintiffs' benefit, enjoined the power project.This ruling precipitated a movement for amendment of the State Constitution and thus brought to a focus a contest that had grown in bitterness and intensity throughout the arid regions as both populations and property values mounted. The doctrine of riparian rights was characterized as socialistic. Wiel, Theories of Water Law, 27 Harv. L. Rev. 530 (1914). The State Supreme Court said the law of appropriation would result in monopoly. Lux v. Haggin, supra, at 309, 10 P. at 703. If the uneconomic consequences of unlimited riparianism were revealed by court decisions, so the effects of unrestrained appropriation became apparent where the flow of rivers became completely appropriated, leaving no water for newcomers or new industry.19 A Joint Committee of the California Legislature gave extended study to the water problems of that State and careful consideration of many remedies. Among other proposals, one relevant to our question was to revoke or nullify all common-law protection to riparian rights and do it retroactively as of the year 1850.20 The Committee rejected all dispossession proposals as confiscatory. It reported an amendment to the Constitution which attempted to serve the general welfare of the State by preserving and limiting both riparian and appropriative rights while curbing either from being exercised unreasonably or wastefully. The Amendment was submitted to and adopted by the electors in November 1928 and now constitutes California's basic water law, to which the Federal Reclamation Act defers.We cannot assume that this Amendment was without impact upon claims to water rights such as we have here, for, as we have seen, it was provoked by their assertion. Neither can we assume that its effect is to deprive riparian owners of benefits it declares to continue or unintentionally to strike down values there was a studied purpose to preserve. We are only concerned with whether it continued in claimants such a right as to be compensable if taken. But what it took away is some measure of what it left.Riparianism, pressed to the limits of its logic, enabled one to play dog-in-the-manger. The shore proprietor could enforce by injunction his bare technical right to have the natural flow of the stream, even if he was getting no substantial benefit from it. This canine element in the doctrine is abolished. "The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, ... ." This limitation is not transgressed by the awards in question which only compensate for the loss of actual beneficial use. Any hazard to claimants' rights lurks in the following clause: "and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water." Since riparian rights attach to, and only to, so much of the flow of the San Joaquin as may be put to beneficial use consistently with this clause, claimants can enforce no use of wasteful or unreasonable character.We assume for purposes of this decision that the prodigal use, inseparable from claimants' benefits, is such that the rights here asserted might not be enforced by injunction. But withholding equitable remedies, such as specific performance, mandatory orders or injunctions, does not mean that no right exists. There may still be a right invasion of which would call for indemnification. In fact, adequacy of the latter remedy is usually grounds for denial of the former.But the public welfare, which requires claimants to sacrifice their benefits to broader ones from a higher utilization, does not necessarily require that their loss be uncompensated any more than in other takings where private rights are surrendered in the public interest. The waters of which claimants are deprived are taken for resale largely to other private land owners not riparian to the river and to some located in a different water shed. Thereby private lands will be made more fruitful, more valuable, and their operation more profitable. The reclamation laws contemplate that those who share these advantages shall, through water charges, reimburse the Government for its outlay. This project anticipates recoupment of its cost over a forty-year period.21 No reason appears why those who get the waters should be spared from making whole those from whom they are taken. Public interest requires appropriation; it does not require expropriation. We must conclude that by the Amendment California unintentionally destroyed and confiscated a recognized and adjudicated private property right, or that it remains compensable although no longer enforcible by injunction. The right of claimants at least to compensation prior to the Amendment was entirely clear. Insofar as any California court has passed on the exact question, the right appears to survive.22 Five years after the Amendment, the Superior Court of California23 specifically sustained identical rights. The Madera Irrigation District had been organized to build a dam at the Friant site and to divert San Joaquin waters to irrigate about 170,000 acres. It was sued by Miller & Lux, Inc., and two of its subsidiaries, and decrees in their favor were entered in 1933. In general, the court sustained the Miller & Lux riparian rights to the annual overflow of uncontrolled grass lands, some of which now belong to claimants. It adjudged the proposed appropriation invalid and ineffective as against those rights. In July of 1940 the United States acquired all of Madera's rights, including pending applications to appropriate San Joaquin water under state law. These judgments had become final and were outstanding adjudications of the issues here involved against a grantor of the United States. Without considering the claim that the 1933 judgments may be res judicata, they are at least persuasive that claimants' rights to the benefit had, in the opinion of California courts, survived the Amendment and must be retired by condemnation or acquisition before the Friant diversion could be valid.The Supreme Court of California has given no answer to this specific problem. But in the light of its precedents and its conclusions and discussions of collateral issues, especially in Peabody v. Vallejo, 2 Cal. 2d 351, 40 P.2d 486; Lodi v. East Bay Municipal Utility District, 7 Cal. 2d 316, 60 P.2d 439; Hillside Water Co. v. Los Angeles, 10 Cal. 2d 677, 76 P.2d 681; Gin S. Chow v. Santa Barbara, 217 Cal. 673, 22 P.2d 5; Meridian, Ltd. v. San Francisco, 13 Cal. 2d 424, 90 P.2d 537; Los Angeles v. Glendale, 23 Cal. 2d 68, 142 P.2d 289, we conclude that claimants' right to compensation has a sound basis in California law. The reclamation authorities were apparently of that view as the Miller & Lux contract would indicate.We recognize that the right to inundation asserted here is unique in the history of riparian claims. Where the thirst of the land is supplied by rainfall, floods are detriments if not disasters, and to abate overflows could rarely if ever cause damage. But, as we have pointed out, uncommon local conditions have given rise to the singular rule of California. The same scarcity which makes it advantageous to take these waters gives them value in the extraordinary circumstances in which the California courts have recognized a private right to have no interception of their flow except upon compensation.We think the awards of the Court of Claims correctly applied the law of California as made applicable to these claims by Congress. III. OTHER ISSUES. The Government also assigns as error determination of the date from which interest is to be allowed. The Court of Claims adopted as the date of taking the first substantial impoundment of water which occurred on October 20, 1941, even though it had not then prevented benefits from reaching the property. The contract between the Government and Miller & Lux contemplated this as the date of taking, for it puts the $511,350 in escrow to protect the Government against suits "initiated prior to the sixth anniversary after the initial storage or diversion." Since the Government itself has adopted this date for the expiration of its protection by contract, we see no reason why it should challenge the Court of Claims for use of the same date for accrual of the claims. Regardless of how this might have been fixed in the absence of such an administrative determination, we decline to set aside the finding on this subject.Second, the Government claims that the court below misconstrued reservations in the deeds between the three claimants and Miller & Lux. It is not apparent from the facts we have recited that the Government is the real party in interest as to this question, which seems to be in the nature of a private controversy between claimants and Miller & Lux. In any event, it presents a question of conveyancing and real property law peculiar to this one case, and depending on local law. It is not a question of general interest, nor is there any manifest error, and we accept, without review, the finding of the Court of Claims thereon. Finally, the Government protests that the court below failed adequately to describe the rights taken for which it has made an award. We think in view of the simple nature of the claims, the exhaustive character of the findings and the understanding the Government must have acquired in seven years of the litigations, there is little prospect that it will be grievously misled by deficiencies, if any, that may exist in the description.The judgments are Affirmed.MR. JUSTICE BLACK concurs in the judgment and opinion except that he agrees with MR. JUSTICE DOUGLAS that interest should not be allowed. |
6 | After Continental Airlines, Inc., filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, it repudiated its collective bargaining agreement with petitioner Air Line Pilots Association, International (ALPA). An acrimonious strike ensued, during which Continental hired replacement pilots and reemployed several hundred crossover strikers. Two years into the strike, Continental announced in its "Supplementary Base Vacancy Bid 1985-5" (85-5 bid) that it would fill a large number of anticipated vacancies using a system that allows pilots to bid for positions and that, in the past, had assigned positions by seniority. Although ALPA authorized strikers to submit bids, Continental announced that all of the positions had been awarded to working pilots. ALPA and Continental then agreed to end the strike, dispose of some related litigation, and reallocate the positions covered by the 85-5 bid. Striking pilots were offered the option of settling all outstanding claims with Continental and participating in the 85-5 bid positions' allocations, electing not to return to work and receiving severance pay, or retaining their individual claims against Continental and becoming eligible to return to work only after all the settling pilots had been reinstated. Thus, striking pilots received some of the positions previously awarded to the working pilots. After the settlement, respondents, former striking pilots, filed suit in the District Court against ALPA, charging, inter alia, that the union had breached its duty of fair representation. The court granted ALPA's motion for summary judgment, but the Court of Appeals reversed. It rejected ALPA's argument that a union cannot breach the fair representation duty without intentional misconduct, applying, instead, the rule announced in Vaca v. Sipes, , that a union violates the duty if its actions are either "arbitrary, discriminatory, or in bad faith," id. at 190. With respect to the test's first component, the court found that a nonarbitrary decision must be (1) based upon relevant permissible union factors, (2) a rational result of the consideration of those factors, and (3) inclusive of a fair and impartial consideration of all employees' interests. Applying that test, the court concluded that a jury could find that ALPA acted arbitrarily by negotiating a settlement less favorable than the consequences of a complete surrender to Continental, which the court believed would have left intact the striking pilots' seniority rights with regard to the 85-5 bid positions. It also found the existence of a material issue of fact whether the favored treatment of working pilots in the allocation of the 85-5 bid positions constituted discrimination against the strikers.Held: 1. The tripartite standard announced in Vaca v. Sipes, supra, applies to a union in its negotiating capacity. See, e.g., Communications Workers v. Beck, . Thus, when acting in that capacity, the union is not, as ALPA contends, required only to act in good faith and treat its members equally and in a nondiscriminatory fashion. Rather, it also has a duty to act in a rational, nonarbitrary fashion to provide its members fair and adequate representation. See, e.g., Vaca v. Sipes, supra, 386 U.S., at 177; Steele v. Louisiana & Nashville R. Co., . Pp. 73-77. 2. The final product of the bargaining process may constitute evidence of a breach of the fair representation duty only if, in light of the factual and legal landscape, it can be fairly characterized as so far outside of a "wide range of reasonableness," Ford Motor Co. v. Huffman, , that it is wholly "irrational" or "arbitrary." The Court of Appeals' refinement of the arbitrariness component authorizes more judicial review of the substance of negotiated agreements than is consistent with national labor policy. Congress did not intend judicial review of a union's performance to permit the court to substitute its own view of the proper bargain for that reached by the union. See, e.g., NLRB v. Insurance Agents, . Rather, Congress envisioned the relationship between the courts and labor unions as similar to that between the courts and the legislature. See Steele, supra, 323 U.S., at 198. Any substantive examination of a union's performance, therefore, must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities. Cf., e.g., Day-Brite Lighting, Inc. v. Missouri, . P. 78. 3. The resolution of the dispute as to the 85-5 bid positions was well within the "wide range of reasonableness" that a union is allowed in its bargaining. Assuming that the union made a bad settlement, it was by no means irrational when viewed in light of the legal landscape at the time of the settlement. Given Continental's resistance during the strike, it would have been rational for ALPA to recognize that a voluntary return to work might have precipitated litigation over the strikers' right to the positions, and that Continental might not have abandoned its bargaining position without a settlement disposing of the pilots' individual claims. Thus, it would have been rational to negotiate a settlement that produced certain and prompt access to a share of the new jobs, avoided the costs and risks associated with major litigation, and was more favorable than a return to work for the significant number of pilots who chose severance. Any discrimination between striking and working pilots in the allocation of the 85-5 bid positions does not represent a breach of the duty, because, if it is correct that ALPA's decision to accept a compromise was rational, some form of allocation was inevitable. Cf. Trans World Airlines, Inc. v. Flight Attendants, ; NLRB v. Erie Resistor Corp., , distinguished. Pp. 78-81. 886 F.2d 1438 (CA5 1985), reversed.STEVENS, J., delivered the opinion for a unanimous Court.Laurence Gold argued the cause for petitioner. With him on the briefs were Harold G. Levison, Jed S. Rakoff, David Silberman, Gary Green, and John A. Irvine.Marty Harper argued the cause for respondents. With him on the brief were John P. Frank, Allen R. Clarke, and Janet Napolitano.* [Footnote *] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, and James A. Feldman; and for Continental Airlines, Inc., by John J. Gallagher and Charles L. Warren.Justice STEVENS delivered the opinion of the Court.We granted certiorari to clarify the standard that governs a claim that a union has breached its duty of fair representation in its negotiation of a back-to-work agreement terminating a strike. We hold that the rule announced in Vaca v. Sipes, - that a union breaches its duty of fair representation if its actions are either "arbitrary, discriminatory, or in bad faith" - applies to all union activity, including contract negotiation. We further hold that a union's actions are arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a "wide range of reasonableness," Ford Motor Co. v. Huffman, , as to be irrational. IThis case arose out of a bitter confrontation between Continental Airlines, Inc. (Continental) and the union representing its pilots, the Air Line Pilots Association, International (ALPA). On September 24, 1983, Continental filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. Immediately thereafter, with the approval of the Bankruptcy Court, Continental repudiated its collective bargaining agreement with ALPA and unilaterally reduced its pilots' salaries and benefits by more than half. ALPA responded by calling a strike that lasted for over two years. See O'Neill v. Airline Pilots Assn., Int'l, 886 F.2d 1438, 1440 (CA5 1989).Of the approximately 2,000 pilots employed by Continental, all but about 200 supported the strike. By the time the strike ended, about 400 strikers had "crossed over" and been accepted for reemployment in order of reapplication. App. to Brief of Continental Airlines, Inc., as Amicus Curiae A11, and n. 8. By trimming its operations and hiring about 1,000 replacements, Continental was able to continue in business. By August, 1985, there were 1,600 working pilots and only 1,000 strikers.The strike was acrimonious, punctuated by incidents of violence and the filing of a variety of law suits, charges, and countercharges. In August, 1985, Continental notified ALPA that it was withdrawing recognition of ALPA as the collective-bargaining agent for its pilots. ALPA responded with a federal lawsuit alleging that Continental was unlawfully refusing to continue negotiations for a new collective bargaining agreement. In this adversary context, on September 9, 1985, Continental posted its "Supplementary Base Vacancy Bid 1985-5" (85-5 bid) - an act that precipitated not only an end to the strike, but also the litigation that is now before us. Ibid.For many years Continental had used a "system bid" procedure for assigning pilots to new positions. Bids were typically posted well in advance in order to allow time for necessary training without interfering with current service. When a group of vacancies was posted, any pilot could submit a bid specifying his or her preferred position (Captain, First Officer, or Second Officer), base of operations, and aircraft type. Ibid. In the past, vacant positions had been awarded on the basis of seniority, determined by the date the pilot first flew for Continental. The 85-5 bid covered an unusually large number of anticipated vacancies - 441 future Captain and First Officer positions and an undetermined number of Second Officer vacancies. Pilots were given nine days - until September 18, 1985 - to submit their bids. Id. at 1441.Fearing that this bid might effectively lock the striking pilots out of jobs for the indefinite future, ALPA authorized the strikers to submit bids. Several hundred did so, as did several hundred working pilots. Although Continental initially accepted bids from both groups, it soon became concerned about the bona fides of the striking pilots' offer to return to work at a future date. It therefore challenged the strikers' bids in court and announced that all of the 85-5 bid positions had been awarded to working pilots. Ibid.At this juncture, ALPA intensified its negotiations for a complete settlement. ALPA's negotiating committee and Continental reached an agreement, which was entered as an order by the Bankruptcy Court on October 31, 1985. See App. 7-41. The agreement provided for an end to the strike, the disposition of all pending litigation, and reallocation of the positions covered by the 85-5 bid. See id., at 10-34.The agreement offered the striking pilots three options. Under the first, pilots who settled all outstanding claims with Continental were eligible to participate in the allocation of the 85-5 bid positions. Under the second option, pilots who elected not to return to work received severance pay of $4,000 per year of service (or $2,000 if they had been furloughed before the strike began).1 Under the third option, striking pilots retained their individual claims against Continental and were eligible to return to work only after all the first option pilots had been reinstated. See 886 F.2d at 1441-1442.Pilots who chose the first option were thus entitled to some of the 85-5 bid positions that, according to Continental, had previously been awarded to working pilots. The first 100 Captain positions were allocated to working pilots, and the next 70 Captain positions were awarded, in order of seniority, to returning strikers who chose option one. App. 13. Thereafter, striking and nonstriking pilots were eligible for Captain positions on a one-to-one ratio. Id. at 13-14. The initial base and aircraft type for a returning striker was assigned by Continental, but the assignments for working pilots were determined by their bids. 886 F.2d at 1441. After the initial assignment, future changes in bases and equipment were determined by seniority, and striking pilots who were in active service when the strike began received seniority credit for the period of the strike. See App. 22.IISeveral months after the settlement, respondents, as representatives of a class of former striking pilots, brought this action against ALPA. See App. 1. In addition to raising other charges not before us, respondents alleged that the union had breached its duty of fair representation in negotiating and accepting the settlement.2 After extensive discovery, ALPA filed a motion for summary judgment. See id., at 3. Opposing that motion, respondents identified four alleged breaches of duty, including the claim that "ALPA negotiated an agreement that arbitrarily discriminated against striking pilots."3 The District Court granted the motion, relying alternatively on the fact that the Bankruptcy Court had approved the settlement and on its own finding that, even if the October 31 settlement was merely a private agreement, ALPA did not breach its duty of fair representation. In his oral explanation of his ruling, the District Judge opined that "the agreement that was achieved looks atrocious in retrospect, but it is not a breach of fiduciary duty badly to settle the strike." App. 75.The Court of Appeals reversed. 886 F.2d 1438 (CA5 1989). It first rejected ALPA's argument that a union cannot breach its duty of fair representation without intentional misconduct. The court held that the duty includes "`three distinct'" components. Id., at 1444 (quoting Tedford v. Peabody Coal Co., 533 F.2d 952, 957, n. 6 (CA5 1976)). A union breaches the duty if its conduct is either "`arbitrary, discriminatory, or in bad faith.'" 886 F.2d at 1444. (quoting Vaca v. Sipes, 386 U.S., at 190). With respect to the arbitrariness component, the Court of Appeals followed Fifth Circuit precedent, stating: "`We think a decision to be non-arbitrary must be (1) based upon relevant, permissible union factors which excludes the possibility of it being based upon motivations such as personal animosity or political favoritism; (2) a rational result of the consideration of these factors; and (3) inclusive of a fair and impartial consideration of the interests of all employees.'" 886 F.2d, at 1444. (quoting Tedford, 533 F.2d, at 957) (footnotes omitted and emphasis added by the Court of Appeals). Applying this arbitrariness test to the facts of this case, the Court of Appeals concluded that a jury could find that ALPA acted arbitrarily because the jury could find that the settlement "left the striking pilots worse off in a number of respects than complete surrender to [Continental]." 886 F.2d, at 1445. That conclusion rested on the court's opinion that the evidence suggested that, if ALPA had simply surrendered and made an unconditional offer to return to work, the strikers would have been entitled to complete priority on all the positions covered by the 85-5 bid.4 Relying on a District Court decision in litigation between ALPA and another airline,5 the court rejected ALPA's argument that the 85-5 bid positions were arguably not vacancies because they had already been assigned to working pilots. Id., at 1446. In addition, the Court of Appeals ruled that the evidence raised a genuine issue of material fact whether the favored treatment of working pilots in the allocation of 85-5 bid positions constituted discrimination against those pilots who had chosen to strike. Id., at 1446-1447.The court held that respondents had raised a jury question whether ALPA had violated its duty to refrain from "arbitrary" conduct, and the court therefore remanded the case for trial. Id., at 1448-1449. Because it reversed the District Court's grant of summary judgment on the arbitrariness component, the Court of Appeals did not decide whether summary judgment on the fair representation claim might be precluded by the existence of other issues of fact.6 We granted certiorari to review the Court of Appeals' statement of the standard governing an alleged breach of a union's duty of fair representation and the court's application of the standard in this case. .IIIALPA's central argument is that the duty of fair representation requires only that a union act in good faith and treat its members equally and in a nondiscriminatory fashion. The duty, the union argues, does not impose any obligation to provide adequate representation. The District Court found that there was no evidence that ALPA acted other than in good faith and without discrimination.7 Because of its view of the limited scope of the duty, ALPA contends that the District Court's finding, which the Court of Appeals did not question, is sufficient to support summary judgment.The union maintains, not without some merit, that its view that courts are not authorized to review the rationality of good-faith, nondiscriminatory union decisions is consonant with federal labor policy. The Government has generally regulated only "the process of collective bargaining," H.K. Porter Co. v. NLRB, (emphasis added), but relied on private negotiation between the parties to establish "their own charter for the ordering of industrial relations," Teamsters v. Oliver, . As we stated in NLRB v. Insurance Agents, , Congress "intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences." See also Carbon Fuel Co. v. Mine Workers, .There is, however, a critical difference between governmental modification of the terms of a private agreement and an examination of those terms in search for evidence that a union did not fairly and adequately represent its constituency. Our decisions have long recognized that the need for such an examination proceeds directly from the union's statutory role as exclusive bargaining agent. "[T]he exercise of a granted power to act in behalf of others involves. the assumption toward them of a duty to exercise the power in their interest and behalf." Steele v. Louisville & Nashville R. Co., .The duty of fair representation is thus akin to the duty owed by other fiduciaries to their beneficiaries. For example, some Members of the Court have analogized the duty a union owes to the employees it represents to the duty a trustee owes to trust beneficiaries. See Teamsters v. Terry, ; id. at 584-588 (KENNEDY, J., dissenting). Others have likened the relationship between union and employee to that between attorney and client. See id. at 582 (STEVENS, J., concurring in part and concurring in judgment). The fair representation duty also parallels the responsibilities of corporate officers and directors toward shareholders. Just as these fiduciaries owe their beneficiaries a duty of care as well as a duty of loyalty, a union owes employees a duty to represent them adequately as well as honestly and in good faith. See, e.g., Restatement (Second) of Trusts 174 (1959) (trustee's duty of care); Strickland v. Washington, (lawyer must render "adequate legal assistance"); Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 274 (CA2 1986) (directors owe duty of care as well as loyalty).ALPA suggests that a union need owe no enforceable duty of adequate representation, because employees are protected from inadequate representation by the union political process. ALPA argues, as has the Seventh Circuit, that employees "do not need ... protection against representation that is inept but not invidious" because if a "union does an incompetent job ... its members can vote in new officers who will do a better job or they can vote in another union." Dober v. Roadway Express, Inc., 707 F.2d 292, 295 (CA7 1983). In Steele, the case in which we first recognized the duty of fair representation, we also analogized a union's role to that of a legislature. See 323 U.S., at 198. Even legislatures, however, are subject to some judicial review of the rationality of their actions. See, e.g., United States v. Carolene Products Co., ; United States Dept. of Agriculture v. Moreno, .ALPA relies heavily on language in Ford Motor Co. v. Huffman, , which, according to the union, suggests that no review of the substantive terms of a settlement between labor and management is permissible. In particular, ALPA stresses our comment in the case that "[a] wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion." Id. at 338. Unlike ALPA, we do not read this passage to limit review of a union's actions to "good faith and honesty of purpose," but rather to recognize that a union's conduct must also be within "[a] wide range of reasonableness."Although there is admittedly some variation in the way in which our opinions have described the unions' duty of fair representation, we have repeatedly identified three components of the duty, including a prohibition against "arbitrary" conduct. Writing for the Court in the leading case in this area of the law, JUSTICE WHITE explained:"The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisviile & N.R. Co., ; Tunstall v. Brotherhood of Locomotive Firemen, , and was soon extended to unions certified under the N.L.R.A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U.S., 335. at 342. It is obvious that Owens' complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action." Vaca v. Sipes, 386 U.S., at 177. This description of the "duty grounded in federal statutes" has been accepted without question by Congress and in a line of our decisions spanning almost a quarter of a century.8 The union correctly points out, however, that virtually all of those cases can be distinguished because they involved contract administration or enforcement, rather than contract negotiation. ALPA argues that the policy against substantive review of contract terms applies directly only in the negotiation area. Although this is a possible basis for distinction, none of our opinions has suggested that the duty is governed by a double standard. Indeed, we have repeatedly noted that the Vaca v. Sipes standard applies to "challenges leveled not only at a union's contract administration and enforcement efforts but at its negotiation activities as well." Communications Workers v. Beck, (internal citation omitted); see also Electrical Workers v. Foust, ; Vaca v. Sipes, 386 U.S., at 177. We have also held that the duty applies in other instances in which a union is acting in its representative role, such as when the union operates a hiring hall. See Breininger v. Sheet Metal Workers, .We doubt, moreover, that a bright line could be drawn between contract administration and contract negotiation. Industrial grievances may precipitate settlement negotiations leading to contract amendments, and some strikes and strike settlement agreements may focus entirely on questions of contract interpretation. See Conley v. Gibson, ; Steelworkers v. Warrior & Gulf Navigation Co., . Finally, some union activities subject to the duty of fair representation fall into neither category. See Breininger, 493 U.S., at 87-90.We are, therefore, satisfied that the Court of Appeals correctly concluded that the tripartite standard announced in Vaca v. Sipes applies to a union in its negotiating capacity. We are persuaded, however, that the Court of Appeals' further refinement of the arbitrariness component of the standard authorizes more judicial review of the substance of negotiated agreements than is consistent with national labor policy. As we acknowledged above, Congress did not intend judicial review of a union's performance to permit the court to substitute its own view of the proper bargain for that reached by the union. Rather, Congress envisioned the relationship between the courts and labor unions as similar to that between the courts and the legislature. Any substantive examination of a union's performance, therefore, must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities. Cf. Day-Brite Lighting, Inc. v. Missouri, (court does "not sit as a superlegislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare"); United States v. Carolene Products, 304 U.S., at 154 (where "question is at least debatable," "decision was for Congress"). For that reason, the final product of the bargaining process may constitute evidence of a breach of duty only if it can be fairly characterized as so far outside a "wide range of reasonableness," Ford Motor Co. v. Huffman, 345 U.S., at 338, that it is wholly "irrational" or "arbitrary."The approach of the Court of Appeals is particularly flawed because it fails to take into account either the strong policy favoring the peaceful settlement of labor disputes, see, e.g., Groves v. Ring Screw Works, Ferndale Fastener Div., , or the importance of evaluating the rationality of a union's decision in the light of both the facts and the legal climate that confronted the negotiators at the time the decision was made. As we shall explain, these factors convince us that ALPA's agreement to settle the strike was not arbitrary for either of the reasons posited by the Court of Appeals.IVThe Court of Appeals placed great stress on the fact that the deal struck by ALPA was worse than the result the union would have obtained by unilateral termination of the strike. Indeed, the court held that a jury finding that the settlement was worse than surrender could alone support a judgment that the union had acted arbitrarily and irrationally. See 886 F.2d, at 1445-1446. This holding unduly constrains the "wide range of reasonableness," 345 U.S., at 338, within which unions may act without breaching their fair representation duty.For purposes of decision, we may assume that the Court of Appeals was correct in its conclusion that, if ALPA had simply surrendered and voluntarily terminated the strike, the striking pilots would have been entitled to reemployment in the order of seniority. Moreover, we may assume that Continental would have responded to such action by rescinding its assignment of all of the 85-5 bid positions to working pilots. After all, it did rescind about half of those assignments pursuant to the terms of the settlement. Thus, we assume that the union made a bad settlement - one that was even worse than a unilateral termination of the strike.Nevertheless, the settlement was by no means irrational. A settlement is not irrational simply because it turns out in retrospect to have been a bad settlement. Viewed in light of the legal landscape at the time of the settlement, ALPA's decision to settle rather than give up was certainly not illogical. At the time of the settlement, Continental had notified the union that all of the 85-5 bid positions had been awarded to working pilots, and was maintaining that none of the strikers had any claim on any of those jobs.A comparable position had been asserted by United Air Lines in litigation in the Northern District of Illinois.9 Because the District Court in that case had decided that such vacancies were not filled until pilots were trained and actually working in their new assignments, the Court of Appeals here concluded that the issue had been resolved in ALPA's favor when it agreed to the settlement with Continental. See 886 F.2d, at 1446. But this reasoning overlooks the fact that the validity of the District Court's ruling in the other case was then being challenged on appeal.10 Moreover, even if the law had been clear that the 85-5 bid positions were vacancies, the Court of Appeals erroneously assumed that the existing law was also clarion that the striking pilots had a right to those vacancies because they had more seniority than the cross-over and replacement workers. The court relied for the latter proposition solely on our cases interpreting the National Labor Relations Act. See 886 F.2d, at 1445. We have made clear, however, that National Labor Relations Act cases are not necessarily controlling in situations, such as this one, which are governed by the Railway Labor Act. See Railroad Trainmen v. Jacksonville Terminal Co., .Given the background of determined resistance by Continental at all stages of this strike, it would certainly have been rational for ALPA to recognize the possibility that an attempted voluntary return to work would merely precipitate litigation over the right to the 85-5 bid positions. Because such a return would not have disposed of any of the individual claims of the pilots who ultimately elected option one or option two of the settlement, there was certainly a realistic possibility that Continental would not abandon its bargaining position without a complete settlement. At the very least, the settlement produced certain and prompt access to a share of the new jobs and avoided the costs and risks associated with major litigation. Moreover, since almost a third of the striking pilots chose the lump-sum severance payment rather than reinstatement, see n. 1, supra, the settlement was presumably more advantageous than a surrender to a significant number of striking pilots. In labor disputes, as in other kinds of litigation, even a bad settlement may be more advantageous in the long run than a good lawsuit. In all events, the resolution of the dispute over the 85-5 bid vacancies was well within the "wide range of reasonableness," 345 U.S., at 338, that a union is allowed in its bargaining.The suggestion that the "discrimination" between striking and working pilots represented a breach of the duty of fair representation also fails. If we are correct in our conclusion that it was rational for ALPA to accept a compromise between the claims of the two groups of pilots to the 85-5 bid positions, some form of allocation was inevitable. A rational compromise on the initial allocation of the positions was not invidious "discrimination" of the kind prohibited by the duty of fair representation. Unlike the grant of "super seniority" to the cross-over and replacement workers in NLRB v. Erie Resistor Corp., , this agreement preserved the seniority of the striking pilots after their initial reinstatement. In Erie, the grant of extra seniority enabled the replacement workers to keep their jobs while more senior strikers lost theirs during a layoff subsequent to the strike. See id., at 223-224. The agreement here only provided the order and mechanism for the reintegration of the returning strikers but did not permanently alter the seniority system. This case therefore more closely resembles our decision in Trans World Airlines, Inc. v. Flight Attendants, , in which we held that an airline's refusal, after a strike, to displace cross-over workers with more senior strikers was not unlawful discrimination. 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 | Under financial instruments commonly known as "Ginnie Maes," the issuing private financial institution has the primary obligation of making timely principal and interest payments. However, in order to attract investors into the private mortgage market, Ginnie Maes also contain a provision whereby the Government National Mortgage Association, a Government corporation, guarantees payment if the issuer defaults. After state taxing officials included the value of appellant's Ginnie Mae portfolio in calculating net assets, appellant filed suit challenging its annual property tax assessment. The state courts rejected appellant's contention that the Ginnie Maes could not be taxed under the constitutional principle of intergovernmental tax immunity and under Revised Statutes 3701, which exempts from state taxation "all stocks, bonds, Treasury notes, and other obligations of the United States."Held: Ginnie Maes are not exempt from state taxation under 3701. The statutory phrase "other obligations of the United States" refers only to obligations or securities of the same type as those specifically enumerated. Ginnie Maes are fundamentally different from the enumerated instruments in that the Government's obligation as guarantor is secondary and contingent. Nor is the indirect, contingent, and unliquidated promise that the Government makes in Ginnie Maes the type of obligation that is protected by the constitutional principle of intergovernmental tax immunity. The purpose of that principle is to prevent States from taxing federal obligations in a manner which has an adverse effect on the United States' borrowing ability. Ginnie Maes' failure to include a binding governmental promise to pay specified sums at specified dates renders any threat to the federal borrowing power far too attenuated to support constitutional immunity. Pp. 187-192. 112 Ill. 2d 174, 492 N. E. 2d 1278, affirmed.STEVENS, J., delivered the opinion for a unanimous Court.Erwin N. Griswold argued the cause for appellant. With him on the briefs were Karl L. Kellar, Ira L. Burleson, and John C. McCarthy. Patricia Rosen, Assistant Attorney General of Illinois, argued the cause for appellees. With her on the brief for appellees Illinois Department of Revenue et al. were Neil F. Hartigan, Attorney General, and Roma Jones Stewart, Solicitor General. Charles J. Prorok filed a brief for appellee Aurand.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Assistant Attorney General Olsen, Alan I. Horowitz, Michael L. Paup, and Ernest J. Brown; for the National Governor's Association et al. by Benna Ruth Solomon, Beate Bloch, and Alan S. Madans; and for the California Franchise Tax Board by Benjamin F. Miller and Anna Jovanovich.JUSTICE STEVENS delivered the opinion of the Court.This case involves financial instruments commonly known as "Ginnie Maes." These instruments are issued by private financial institutions, which are obliged to make timely payment of the principal and interest as set forth in the certificates. The Government National Mortgage Association (GNMA) guarantees that the payments will be made as scheduled. The question presented today is whether these instruments are exempt from state taxation under the constitutional principle of intergovernmental tax immunity, or under the relevant immunity statute.1 Prior to 1979 changes in Illinois' tax law, Rockford Life Insurance Company (Rockford) paid an annual property tax on the assessed value of its capital stock. In 1978, the Illinois taxing authorities included the value of Rockford's portfolio of Ginnie Maes in their calculation of the corporation's net assets. Rockford challenged the assessment in the Illinois courts and the County Treasurer filed an action to collect the full amount of the assessment ($723,053.70). The Illinois courts uniformly rejected Rockford's contention that the securities were exempt from state property taxes,2 reasoning that "the securities in question here were not `other obligations of the United States' within the meaning of 3701," and that the constitutional and statutory inquiries were identical in this case. 112 Ill. 2d 174, 176-184, 492 N. E. 2d 1278, 1279-1283 (1986). We noted probable jurisdiction,3 , and now affirm.IThe instruments involved here are standard securities bearing the title "Mortgage Backed Certificate Guaranteed by Government National Mortgage Association." App. 56. True to that title, the instruments contain a provision in which GNMA pledges the "full faith and credit of the United States" to secure the timely payment of the interest and principal set forth in the instrument. The purpose of the guarantee, and the function of GNMA, which is a wholly owned government corporation within the Department of Housing and Urban Development, is to attract investors into the mortgage market by minimizing the risk of loss.4 See 12 U.S.C. 1716(a). There is uncontradicted evidence in the record supporting the conclusion that GNMA's guarantee is responsible for the ready marketability of these securities. That guarantee is not the primary obligation described in the instrument, however. The duty to make monthly payments of principal and interest to the investors falls squarely on the issuer of the certificate.5 The issuer of the certificate is a private party, generally a financial institution, that posesses [possesses] a pool of federally guaranteed mortgages.6 Those individual mortgages are the product of transactions between individual borrowers and private lending institutions. It is this pool of private obligations that provides the source of funds, as well as the primary security, for the principal and interest that the issuer promises to pay to the order of the holder of the instrument. After a pool of qualified mortgages is assembled by a qualified issuer, the issuer enters into an agreement with GNMA authorizing the issuer to sell one or more certificates, each of which is proportionately based on and backed by all the mortgages in the designated pool, and each of which is also guaranteed by GNMA. The issuer thereafter may sell the "mortgage-backed certificates" to holders such as Rockford. The issuer administers the pool by collecting principal and interest from the individual mortgagors and remitting the amounts specified in the certificates to the holders. GNMA's costs for the regulatory duties is covered by a fee charged to the issuer. Unless the issuer defaults in its payments to the holder of a certificate, no federal funds are used in connection with the issuance and sale of these securities, the administration of the pool of mortgages, or the payments of principal and interest set forth in the certificates.Under the type of Ginnie Maes involved in this case, see n. 5, supra, the issuer is required to continue to make payments to the holders even if an individual mortgage in the pool becomes delinquent. In such event, the issuer may pursue its remedies against the individual mortgagor, or the guarantor of the mortgage, but the issuer does not have any rights against GNMA. GNMA's guarantee is implicated only if the issuer fails to meet its obligations to the holders under the certificates. In that event the holder proceeds directly against GNMA, and not against the issuer. But the risk of actual loss to GNMA is minimal because its guarantee is secured not only by the individual mortgages in the pool but also by the separate guarantee of each of those mortgages, and by a fidelity bond which the issuer is required to post. See 24 CFR 390.1 (1986).IIThe GNMA guarantee of payment that is contained in the mortgage-backed certificates held by Rockford is a pledge of the "full faith and credit of the United States."7 But that does not mean that it is the type of "obligation" of the United States which is subject to exemption under the Constitution or the immunity statute. Because the statutory immunity provision now codified at 31 U.S.C. 3124(a) is "principally a restatement of the constitutional rule," see Memphis Bank & Trust Co. v. Garner, , we shall first decide whether the statute requires that Ginnie Maes be exempted from state property taxes, and then consider whether the constitutional doctrine of intergovernmental tax immunity requires any broader exemption.At the time relevant to this case,8 Rev. Stat. 3701, as amended, 31 U.S.C. 742 (1976 ed.), provided that "all stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority" (emphasis added). The full text of the sentence in which these words appear, rules of statutory construction, and the earlier legislation that was codified by the enactment of this statute, are all consistent with the conclusion that the phrase "other obligations" refers "only to obligations or securities of the same type as those specifically enumerated." Smith v. Davis, . This longstanding interpretation resolves the statutory question before us. GNMA certificates are fundamentally different from the securities specifically named in the statute. Most significantly, they are neither direct nor certain obligations of the United States. As the certificate provides, it is the issuer that bears the primary obligation to make timely payments - the United States' obligation is secondary and contingent.9 In short, the United States is the guarantor - not the obligor. This distinction is more than adequate to support our conclusion that Ginnie Maes do not qualify as "other obligations of the United States" for the purposes of this statute.Nor does the constitutional doctrine of intergovernmental tax immunity exempt these instruments from state property taxes. In Smith v. Davis, supra, the United States owed money to a construction company for work that the company had performed on open account. In computing its assets for state tax purposes, the company sought to exclude the amount owed to it by the Federal Government, but a unanimous Court held that the debt was not exempt. The Court concluded that "a unilateral, unliquidated creditor's claim, which by itself does not bind the United States and which in no way increases or affects the public debt, cannot be said to be a credit instrumentality of the United States for the purposes of tax immunity," 323 U.S., at 114, and went on to explain that the claim differed"vitally from the type of credit instrumentalities which this Court in the past has recognized as constitutionally exempt from state and local taxation. Such instrumentalities in each instance have been characterized by (1) written documents, (2) the bearing of interest, (3) a binding promise by the United States to pay specified sums at specified dates and (4) specific Congressional authorization, which also pledged the full faith and credit of the United States in support of the promise to pay." Id., at 114-115. With respect to Ginnie Maes, the third element described in Smith v. Davis is clearly lacking, and its absence is critical in view of the purposes behind the intergovernmental tax immunity doctrine. That doctrine is based on the proposition that the borrowing power is an essential aspect of the Federal Government's authority and, just as the Supremacy Clause bars the States from directly taxing federal property, it also bars the States from taxing federal obligations in a manner which has an adverse effect on the United States' borrowing ability. See Weston v. City Council of Charleston, 2 Pet. 449 (1829); McCulloch v. Maryland, 4 Wheat. 316 (1819). The lack of a fixed and certain obligation by the United States in the Ginnie Mae context makes this concern far too attenuated to support constitutional immunity.10 Cf. Willcuts v. Bunn, ; Hibernia Savings Society v. San Francisco, ; Plummer v. Coler, . Moreover, none of the proceeds of the issuance and sale of the GNMA certificates are received by the Federal Government or used to finance any governmental function. Indeed, given the fixed fees that GNMA charges issuers, and the lack of any GNMA profit sharing, it has not been suggested here that the federal fisc would at all benefit from a holding that Ginnie Maes are exempt from state taxation.11 Appellant asserts that Congress authorized the GNMA's guarantee for the salutary purpose of facilitating the financing of private mortgages, and that an exemption from state taxation will further this purpose. But our job is neither to assess the underlying merits of the program, nor to opine on whether Congress would be wise to exempt Ginnie Maes from state taxation. Our task is simply to decide whether the indirect, contingent, and unliquidated promise that GNMA is authorized to make is the type of federal obligation for which the Constitution, in Congress' silence, imposes an exemption from state taxation. We hold that it is not.IIIA court must proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly established. We do well to remember the concluding words in Smith, which although spoken in reference to the statute, are relevant to our role in applying the constitutional doctrine as well:"All of these related statutes are a clear indication of an intent to immunize from state taxation only the interest-bearing obligations of the United States which are needed to secure credit to carry on the necessary functions of government. That intent, which is largely codified in 3701, should not be expanded or modified in any degree by the judiciary." 323 U.S., at 119. The judgment is Affirmed. |
8 | Appellee black voters of Escambia County, Fla., filed suit in Federal District Court, alleging that the at-large system for electing County Commissioners, by diluting appellees' voting strength, violated various federal constitutional and statutory provisions. The court entered judgment for appellees, holding that the election system violated, inter alia, the Fourteenth Amendment and the Voting Rights Act of 1965. The Court of Appeals affirmed on the ground that the election system violated the Fourteenth Amendment, but did not review the District Court's conclusion as to the violation of the Voting Rights Act. This appeal presented the question whether the evidence of discriminatory intent in the record was adequate to support the District Court's finding that the at-large system violated the Fourteenth Amendment.Held: Normally this Court will not decide a constitutional question if there is some other ground upon which to dispose of the case. The parties have not briefed the question whether the Voting Rights Act provided grounds for affirmance of the District Court's judgment, and, in any event, the question should be decided in the first instance by the Court of Appeals. Therefore, the proper course is to vacate the Court of Appeals' judgment and remand the case to that court for consideration of the statutory question. 688 F.2d 960, vacated and remanded.Charles S. Rhyne argued the cause for appellants. With him on the briefs were J. Lee Rankin, Thomas D. Silverstein, Thomas R. Santurri, and Paula G. Drummond.Larry T. Menefee argued the cause for appellees. With him on the briefs were James U. Blacksher, Jack Greenberg, Eric Schnapper, and Kent Spriggs.* [Footnote *] Briefs of amicus curiae urging affirmance were filed for the American Civil Liberties Union by Laughlin McDonald, Neil Bradley, Christopher Coates, Burt Neuborne, and E. Richard Larson; and for the Lawyers' Committee for Civil Rights Under Law by Fred N. Fishman, Robert H. Kapp, Norman Redlich, William L. Robinson, and Frank R. Parker. PER CURIAM.This appeal presents questions as to the appropriate standards of proof and appropriate remedy in suits that allege a violation of voting rights secured by the Fourteenth Amendment. We do not reach these questions, however, as it appears that the judgment under review may rest alternatively upon a statutory ground of decision.IAppellees, black voters of Escambia County, Fla., filed suit in the District Court, alleging that the at-large system for electing the five members of the Board of County Commissioners violated appellees' rights under the First, Thirteenth, Fourteenth, and Fifteenth Amendments, the Civil Rights Act of 1957, 71 Stat. 637, as amended, 42 U.S.C. 1971(a) (1), and the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S.C. 1973.1 Appellees contended that the at-large system operated to "dilute" their voting strength. See, e. g., Rogers v. Lodge, .The District Court entered judgment for appellees. That court found that the at-large system used by the county discriminated against black voters and had been retained at least in part for discriminatory purposes. The court concluded that the system violated appellees' rights under the Fourteenth and Fifteenth Amendments and the Voting Rights Act. The District Court ordered that the five commissioners be elected from single-member districts.The Court of Appeals affirmed the District Court's judgment, concluding that the at-large election system violated the Fourteenth Amendment and that the District Court's remedy was appropriate.2 688 F.2d 960 (1982). As the finding of a Fourteenth Amendment violation was adequate to support the District Court's judgment, the Court of Appeals did not review the District Court's conclusion that the at-large system also violated the Fifteenth Amendment and the Voting Rights Act.3 Id., at 961, n. 2.We noted probable jurisdiction, .4 IIThis appeal presents the question whether the evidence of discriminatory intent in the record before the District Court was adequate to support the finding that the at-large system violated the Fourteenth Amendment. We decline to decide this question. As the Court of Appeals noted, the District Court's judgment rested alternatively upon the Voting Rights Act. See 688 F.2d, at 961, n. 2; App. to Juris. Statement 101a. Moreover, the 1982 amendments to that Act, Pub. L. 97-205, 3, 96 Stat. 134, 42 U.S.C. 1973(b),5 were not before the Court of Appeals. Affirmance on the statutory ground would moot the constitutional issues presented by the case. It is a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case. See Ashwander v. TVA, (Brandeis, J., concurring).The parties have not briefed the statutory question, and, in any event, that question should be decided in the first instance by the Court of Appeals. We conclude, therefore, that the proper course is to vacate the judgment of the Court of Appeals, and remand the case to that court for consideration of the question whether the Voting Rights Act provides grounds for affirmance of the District Court's judgment.6 It is so ordered. JUSTICE BLACKMUN, while joining the Court's per curiam opinion, would disallow costs in this case. |
0 | The federal statute governing food stamp fraud provides in 7 U.S.C. 2024(b) (1) that "whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations" shall be guilty of a criminal offense. Petitioner was indicted for violation of 2024(b)(1). At a jury trial in Federal District Court, the Government proved that petitioner on three occasions had purchased food stamps from an undercover Department of Agriculture agent for substantially less then their face value. The court refused petitioner's proposed jury instruction that the Government must prove that petitioner knowingly did an act that the law forbids, purposely intending to violate the law. Rather, over petitioner's objection, the court instructed the jury that the Government had to prove that petitioner acquired and possessed the food stamps in a manner not authorized by statute or regulations and that he knowingly and willfully acquired the stamps. Petitioner was convicted. The Court of Appeals affirmed.Held: Absent any indication of a contrary purpose in the statute's language or legislative history, the Government in a prosecution for violation of 2024(b)(1) must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations. Pp. 423-434. (a) Criminal offenses requiring no mens rea have a generally disfavored status. The failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law. Moreover, to interpret the statute to dispense with mens rea would be to criminalize a broad range of apparently innocent conduct. In addition, requiring mens rea in this case is in keeping with the established principle that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. Pp. 425-428. (b) The fact that 2024(c), which is directed primarily at stores authorized to accept food stamps from program participants, differs in wording and structure from 2024(b)(1) and provides that "[w]hoever presents, or causes to be presented, coupons for payment or redemption ... knowing the same to have been received, transferred, or used in any manner in violation of [the statute] or the regulations," fails to show a congressional purpose not to require proof of the defendant's knowledge of illegality in a 2024(b)(1) prosecution. Nor has it been shown that requiring knowledge of illegality in a 2024(c), but not a 2024(b)(1), prosecution is supported by such obvious and compelling policy reasons that it should be assumed that Congress intended to make such a distinction. Pp. 428-430. (c) United States v. Yermian, , does not support an interpretation of 2024(b)(1) dispensing with the requirement that the Government prove the defendant's knowledge of illegality. Nor is the 2024(b)(1) offense a "public welfare" offense that depends on no mental element but consists only of forbidden acts or omissions. Pp. 431-433. 735 F.2d 1044, reversed.BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., joined, post, p. 434. POWELL, J., took no part in the consideration or decision of the case.William T. Huyck, by appointment of the Court, , argued the cause and filed briefs for petitioner.Charles A. Rothfeld argued the cause pro hac vice for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, and Deputy Solicitor General Claiborne.JUSTICE BRENNAN delivered the opinion of the Court.The federal statute governing food stamp fraud provides that "whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations" is subject to a fine and imprisonment. 78 Stat. 708, as amended, 7 U.S.C. 2024(b)(1).1 The question presented is whether in a prosecution under this provision the Government must prove that the defendant knew that he was acting in a manner not authorized by statute or regulations.IPetitioner Frank Liparota was the co-owner with his brother of Moon's Sandwich Shop in Chicago, Illinois. He was indicted for acquiring and possessing food stamps in violation of 2024(b)(1). The Department of Agriculture had not authorized petitioner's restaurant to accept food stamps. App. 6-7.2 At trial, the Government proved that petitioner on three occasions purchased food stamps from an undercover Department of Agriculture agent for substantially less than their face value. On the first occasion, the agent informed petitioner that she had $195 worth of food stamps to sell. The agent then accepted petitioner's offer of $150 and consummated the transaction in a back room of the restaurant with petitioner's brother. A similar transaction occurred one week later, in which the agent sold $500 worth of coupons for $350. Approximately one month later, petitioner bought $500 worth of food stamps from the agent for $300.In submitting the case to the jury, the District Court rejected petitioner's proposed "specific intent" instruction, which would have instructed the jury that the Government must prove that "the defendant knowingly did an act which the law forbids, purposely intending to violate the law." Id., at 34.3 Concluding that "[t]his is not a specific intent crime" but rather a "knowledge case," id., at 31, the District Court instead instructed the jury as follows:"When the word `knowingly' is used in these instructions, it means that the Defendant realized what he was doing, and was aware of the nature of his conduct, and did not act through ignorance, mistake, or accident. Knowledge may be proved by defendant's conduct and by all of the facts and circumstances surrounding the case." Id., at 33. The District Court also instructed that the Government had to prove that "the Defendant acquired and possessed food stamp coupons for cash in a manner not authorized by federal statute or regulations" and that "the Defendant knowingly and wilfully acquired the food stamps." 3 Tr. 251. Petitioner objected that this instruction required the jury to find merely that he knew that he was acquiring or possessing food stamps; he argued that the statute should be construed instead to reach only "people who knew that they were acting unlawfully." App. 31. The judge did not alter or supplement his instructions, and the jury returned a verdict of guilty.Petitioner appealed his conviction to the Court of Appeals for the Seventh Circuit, arguing that the District Court erred in refusing to instruct the jury that "specific intent" is required in a prosecution under 7 U.S.C. 2024(b)(1). The Court of Appeals rejected petitioner's arguments. 735 F.2d 1044 (1984). Because this decision conflicted with recent decisions of three other Courts of Appeals,4 we granted certiorari. . We reverse.IIThe controversy between the parties concerns the mental state, if any, that the Government must show in proving that petitioner acted "in any manner not authorized by [the statute] or the regulations." The Government argues that petitioner violated the statute if he knew that he acquired or possessed food stamps and if in fact that acquisition or possession was in a manner not authorized by statute or regulations. According to the Government, no mens rea, or "evil-meaning mind," Morissette v. United States, , is necessary for conviction. Petitioner claims that the Government's interpretation, by dispensing with mens rea, dispenses with the only morally blameworthy element in the definition of the crime. To avoid this allegedly untoward result, he claims that an individual violates the statute if he knows that he has acquired or possessed food stamps and if he also knows that he has done so in an unauthorized manner.5 Our task is to determine which meaning Congress intended. The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute. United States v. Hudson, 7 Cranch 32 (1812).6 With respect to the element at issue in this case, however, Congress has not explicitly spelled out the mental state required. Although Congress certainly intended by use of the word "knowingly" to require some mental state with respect to some element of the crime defined in 2024(b)(1), the interpretations proffered by both parties accord with congressional intent to this extent. Beyond this, the words themselves provide little guidance. Either interpretation would accord with ordinary usage.7 The legislative history of the statute contains nothing that would clarify the congressional purpose on this point.8 Absent indication of contrary purpose in the language or legislative history of the statute, we believe that 2024(b)(1) requires a showing that the defendant knew his conduct to be unauthorized by statute or regulations.9 "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Morissette v. United States, supra, at 250. Thus, in United States v. United States Gypsum Co., , we noted that "[c]ertainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement" and that criminal offenses requiring no mens rea have a "generally disfavored status." Similarly, in this case, the failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law.This construction is particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct. For instance, 2024(b)(1) declares it criminal to use, transfer, acquire, alter, or possess food stamps in any manner not authorized by statute or regulations. The statute provides further that "[c]oupons issued to eligible households shall be used by them only to purchase food in retail food stores which have been approved for participation in the food stamp program at prices prevailing in such stores." 7 U.S.C. 2016(b) (emphasis added); see also 7 CFR 274.10(a) (1985).10 This seems to be the only authorized use. A strict reading of the statute with no knowledge-of-illegality requirement would thus render criminal a food stamp recipient who, for example, used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp program participants. Such a reading would also render criminal a nonrecipient of food stamps who "possessed" stamps because he was mistakenly sent them through the mail11 due to administrative error, "altered" them by tearing them up, and "transferred" them by throwing them away. Of course, Congress could have intended that this broad range of conduct be made illegal, perhaps with the understanding that prosecutors would exercise their discretion to avoid such harsh results. However, given the paucity of material suggesting that Congress did so intend, we are reluctant to adopt such a sweeping interpretation.In addition, requiring mens rea is in keeping with our longstanding recognition of the principle that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." Rewis v. United States, . See also United States v. United States Gypsum Co., supra, at 437; United States v. Bass, ; Bell v. United States, ; United States v. Universal C. I. T. Credit Corp., . Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability. See United States v. Bass, supra, at 348 ("[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity"). Although the rule of lenity is not to be applied where to do so would conflict with the implied or expressed intent of Congress, it provides a time-honored interpretive guideline when the congressional purpose is unclear. In the instant case, the rule directly supports petitioner's contention that the Government must prove knowledge of illegality to convict him under 2024(b)(1).The Government argues, however, that a comparison between 2024(b)(1) and its companion, 2024(c), demonstrates a congressional purpose not to require proof of the defendant's knowledge of illegality in a 2024(b)(1) prosecution. Section 2024(c) is directed primarily at stores authorized to accept food stamps from program participants. It provides that "[w]hoever presents, or causes to be presented, coupons for payment or redemption ... knowing the same to have been received, transferred, or used in any manner in violation of [the statute] or the regulations" is subject to fine and imprisonment (emphasis added).12 The Government contrasts this language with that of 2024(b)(1), in which the word "knowingly" is placed differently: "whoever knowingly uses, transfers ..." (emphasis added). Since 2024(c) undeniably requires a knowledge of illegality, the suggested inference is that the difference in wording and structure between the two sections indicates that 2024(b)(1) does not.The Government urges that this distinction between the mental state required for a 2024(c) violation and that required for a 2024(b)(1) violation is a sensible one. Absent a requirement of mens rea, a grocer presenting food stamps for payment might be criminally liable under 2024(c) even if his customer or employees have illegally procured or transferred the stamps without the grocer's knowledge. Requiring knowledge of illegality in a 2024(c) prosecution is allegedly necessary to avoid this kind of vicarious, and non-fault-based, criminal liability. Since the offense defined in 2024(b)(1) - using, transferring, acquiring, altering, or possessing food stamps in an unauthorized manner - does not involve this possibility of vicarious liability, argues the Government, Congress had no reason to impose a similar knowledge of illegality requirement in that section.We do not find this argument persuasive. The difference in wording between 2024(b)(1) and 2024(c) is too slender a reed to support the attempted distinction, for if the Government's argument were accepted, it would lead to the demise of the very distinction that Congress is said to have desired. According to the Government, Congress did intend a knowledge of illegality requirement in 2024(c), while it did not intend such a requirement in 2024(b)(1). Anyone who has violated 2024(c) has "present[ed], or caus[ed] to be presented, coupons for payment or redemption" in an unauthorized manner. Such a person would seemingly have also "use[d], transfer[red], acquir[ed], alter[ed], or possess[ed]" the coupons in a similarly unauthorized manner, and thus to have violated 2024(b)(1). It follows that the Government will be able to prosecute any violator of 2024(c) under 2024(b)(1) as well. If only 2024(c) - and not 2024(b)(1) - required the Government to prove knowledge of illegality, the result would be that the Government could always avoid proving knowledge of illegality in food stamp fraud cases, simply by bringing its prosecutions under 2024(b)(1). If Congress wanted to require the Government to prove knowledge of illegality in some, but not all, food stamp fraud cases, it thus chose a peculiar way to do so.For similar reasons, the Government's arguments that Congress could have had a plausible reason to require knowledge of illegality in prosecutions under 2024(c), but not 2024(b)(1), are equally unpersuasive. Grocers are participants in the food stamp program who have had the benefit of an extensive informational campaign concerning the authorized use and handling of food stamps. App. 7-8. Yet the Government would have to prove knowledge of illegality when prosecuting such grocers, while it would have no such burden when prosecuting third parties who may well have had no opportunity to acquaint themselves with the rules governing food stamps. It is not immediately obvious that Congress would have been so concerned about imposing strict liability on grocers, while it had no similar concerns about imposing strict liability on nonparticipants in the program. Our point once again is not that Congress could not have chosen to enact a statute along these lines, for there are no doubt policy arguments on both sides of the question as to whether such a statute would have been desirable. Rather, we conclude that the policy underlying such a construction is neither so obvious nor so compelling that we must assume, in the absence of any discussion of this issue in the legislative history, that Congress did enact such a statute.13 The Government advances two additional arguments in support of its reading of the statute. First, the Government contends that this Court's decision last Term in United States v. Yermian, , supports its interpretation. Yermian involved a prosecution for violation of the federal false statement statute, 18 U.S.C. 1001.14 All parties agreed that the statute required proof at least that the defendant "knowingly and willfully" made a false statement. Thus, unlike the instant case, all parties in Yermian agreed that the Government had to prove the defendant's mens rea.15 The controversy in Yermian centered on whether the Government also had to prove that the defendant knew that the false statement was made in a matter within the jurisdiction of a federal agency. With respect to this element, although the Court held that the Government did not have to prove actual knowledge of federal agency jurisdiction, the Court explicitly reserved the question whether some culpability was necessary with respect even to the jurisdictional element. 468 U.S., at 75, n. 14. In contrast, the Government in the instant case argues that no mens rea is required with respect to any element of the crime. Finally, Yermian found that the statutory language was unambiguous and that the legislative history supported its interpretation. The statute at issue in this case differs in both respects.Second, the Government contends that the 2024(b)(1) offense is a "public welfare" offense, which the Court defined in Morissette v. United States, 342 U.S., at 252-253, to "depend on no mental element but consist only of forbidden acts or omissions." Yet the offense at issue here differs substantially from those "public welfare offenses" we have previously recognized. In most previous instances, Congress has rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety. Thus, in United States v. Freed, , we examined the federal statute making it illegal to receive or possess an unregistered firearm. In holding that the Government did not have to prove that the recipient of unregistered hand grenades knew that they were unregistered, we noted that "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Id., at 609. See also United States v. International Minerals & Chemical Corp., . Similarly, in United States v. Dotterweich, , the Court held that a corporate officer could violate the Food, Drug, and Cosmetic Act when his firm shipped adulterated and misbranded drugs, even "though consciousness of wrongdoing be totally wanting." See also United States v. Balint, . The distinctions between these cases and the instant case are clear. A food stamp can hardly be compared to a hand grenade, see Freed, nor can the unauthorized acquisition or possession of food stamps be compared to the selling of adulterated drugs, as in Dotterweich.IIIWe hold that in a prosecution for violation of 2024(b)(1), the Government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations.16 This holding does not put an unduly heavy burden on the Government in prosecuting violators of 2024(b)(1). To prove that petitioner knew that his acquisition or possession of food stamps was unauthorized, for example, the Government need not show that he had knowledge of specific regulations governing food stamp acquisition or possession. Nor must the Government introduce any extraordinary evidence that would conclusively demonstrate petitioner's state of mind. Rather, as in any other criminal prosecution requiring mens rea, the Government may prove by reference to facts and circumstances surrounding the case that petitioner knew that his conduct was unauthorized or illegal.17 Reversed. JUSTICE POWELL took no part in the consideration or decision of this case. |
3 | The District of Columbia Redevelopment Act of 1945 is constitutional, as applied to the taking of appellants' building and land (used solely for commercial purposes) under the power of eminent domain, pursuant to a comprehensive plan prepared by an administrative agency for the redevelopment of a large area of the District of Columbia so as to eliminate and prevent slum and substandard housing conditions - even though such property may later be sold or leased to other private interests subject to conditions designed to accomplish these purposes. Pp. 28-36. (a) The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs. Pp. 31-32. (b) Subject to specific constitutional limitations, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation enacted in the exercise of the police power; and this principle admits of no exception merely because the power of eminent domain is involved. P. 32. (c) This Court does not sit to determine whether or not a particular housing project is desirable. P. 33. (d) If Congress decides that the Nation's Capital shall be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. P. 33. (e) Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. P. 33. (f) Once the public purpose has been established, the means of executing the project are for Congress and Congress alone to determine. P. 33. (g) This Court cannot say that public ownership is the sole method of promoting the public purposes of a community redevelopment project; and it is not beyond the power of Congress to utilize an agency of private enterprise for this purpose or to authorize the taking of private property and its resale or lease to the same or other private parties as part of such a project. P. 34. (h) It is not beyond the power of Congress or its authorized agencies to attack the problem of the blighted parts of the community on an area rather than on a structure-by-structure basis. Redevelopment of an entire area under a balanced integrated plan so as to include not only new homes but also schools, churches, parks, streets, and shopping centers is plainly relevant to the maintenance of the desired housing standards and therefore within congressional power. Pp. 34-35. (i) The standards contained in the Act are sufficiently definite to sustain the delegation of authority to administrative agencies to execute the plan to eliminate not only slums but also the blighted areas that tend to produce slums. P. 35. (j) Once the public purpose is established, the amount and character of the land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislature. Pp. 35-36. (k) If the Redevelopment Agency considers it necessary in carrying out a redevelopment project to take full title to the land, as distinguished from the objectionable buildings located thereon, it may do so. P. 36. (l) The rights of these property owners are satisfied when they receive the just compensation which the Fifth Amendment exacts as the price of the taking. P. 36. 117 F. Supp. 705, modified and affirmed.James C. Toomey and Joseph H. Schneider argued the cause for appellants. With them on the brief was Albert Ginsberg.Solicitor General Sobeloff argued the cause for appellees. Assistant Attorney General Morton, Oscar H. Davis, Roger P. Marquis, George F. Riseling and William S. Cheatham were with him on a brief for the District of Columbia Redevelopment Land Agency and the National Capital Planning Commission, appellees.Vernon E. West, Chester H. Gray, Milton D. Korman, Harry L. Walker and J. Hampton Baumgartner, Jr. filed a brief for Renah F. Camalier and Louis W. Prentiss, Commissioners of the District of Columbia, appellees. MR. JUSTICE DOUGLAS delivered the opinion of the Court.This is an appeal (28 U.S.C. 1253) from the judgment of a three-judge District Court which dismissed a complaint seeking to enjoin the condemnation of appellant's property under the District of Columbia Redevelopment Act of 1945, 60 Stat. 790, D.C. Code, 1951, 5-701-5-719. The challenge was to the constitutionality of the Act, particularly as applied to the taking of appellants' property. The District Court sustained the constitutionality of the Act. 117 F. Supp. 705.By 2 of the Act, Congress made a "legislative determination" that "owing to technological and sociological changes, obsolete lay-out, and other factors, conditions existing in the District of Columbia with respect to substandard housing and blighted areas, including the use of buildings in alleys as dwellings for human habitation, are injurious to the public health, safety, morals, and welfare; and it is hereby declared to be the policy of the United States to protect and promote the welfare of the inhabitants of the seat of the Government by eliminating all such injurious conditions by employing all means necessary and appropriate for the purpose."* Section 2 goes on to declare that acquisition of property is necessary to eliminate these housing conditions. Congress further finds in 2 that these ends cannot be attained "by the ordinary operations of private enterprise alone without public participation"; that "the sound replanning and redevelopment of an obsolescent or obsolescing portion" of the District "cannot be accomplished unless it be done in the light of comprehensive and coordinated planning of the whole of the territory of the District of Columbia and its environs"; and that "the acquisition and the assembly of real property and the leasing or sale thereof for redevelopment pursuant to a project area redevelopment plan ... is hereby declared to be a public use."Section 4 creates the District of Columbia Redevelopment Land Agency (hereinafter called the Agency), composed of five members, which is granted power by 5 (a) to acquire and assemble, by eminent domain and otherwise, real property for "the redevelopment of blighted territory in the District of Columbia and the prevention, reduction, or elimination of blighting factors or causes of blight."Section 6 (a) of the Act directs the National Capital Planning Commission (hereinafter called the Planning Commission) to make and develop "a comprehensive or general plan" of the District, including "a land-use plan" which designates land for use for "housing, business, industry, recreation, education, public buildings, public reservations, and other general categories of public and private uses of the land." Section 6 (b) authorizes the Planning Commission to adopt redevelopment plans for specific project areas. These plans are subject to the approval of the District Commissioners after a public hearing; and they prescribe the various public and private land uses for the respective areas, the "standards of population density and building intensity," and "the amount or character or class of any low-rent housing." 6 (b). Once the Planning Commission adopts a plan and that plan is approved by the Commissioners, the Planning Commission certifies it to the Agency. 6 (d). At that point, the Agency is authorized to acquire and assemble the real property in the area. Id.After the real estate has been assembled, the Agency is authorized to transfer to public agencies the land to be devoted to such public purposes as streets, utilities, recreational facilities, and schools, 7 (a), and to lease or sell the remainder as an entirety or in parts to a redevelopment company, individual, or partnership. 7 (b), (f). The leases or sales must provide that the lessees or purchasers will carry out the redevelopment plan and that "no use shall be made of any land or real property included in the lease or sale nor any building or structure erected thereon" which does not conform to the plan, 7 (d), 11. Preference is to be given to private enterprise over public agencies in executing the redevelopment plan. 7 (g).The first project undertaken under the Act relates to Project Area B in Southwest Washington, D.C. In 1950 the Planning Commission prepared and published a comprehensive plan for the District. Surveys revealed that in Area B, 64.3% of the dwellings were beyond repair, 18.4% needed major repairs, only 17.3% were satisfactory; 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, 83.8% lacked central heating. In the judgment of the District's Director of Health it was necessary to redevelop Area B in the interests of public health. The population of Area B amounted to 5,012 persons, of whom 97.5% were Negroes.The plan for Area B specifies the boundaries and allocates the use of the land for various purposes. It makes detailed provisions for types of dwelling units and provides that at least one-third of them are to be low-rent housing with a maximum rental of $17 per room per month.After a public hearing, the Commissioners approved the plan and the Planning Commission certified it to the Agency for execution. The Agency undertook the preliminary steps for redevelopment of the area when this suit was brought.Appellants own property in Area B at 712 Fourth Street, S. W. It is not used as a dwelling or place of habitation. A department store is located on it. Appellants object to the appropriation of this property for the purposes of the project. They claim that their property may not be taken constitutionally for this project. It is commercial, not residential property; it is not slum housing; it will be put into the project under the management of a private, not a public, agency and redeveloped for private, not public, use. That is the argument; and the contention is that appellants' private property is being taken contrary to two mandates of the Fifth Amendment - (1) "No person shall ... be deprived of ... property, without due process of law"; (2) "nor shall private property be taken for public use, without just compensation." To take for the purpose of ridding the area of slums is one thing; it is quite another, the argument goes, to take a man's property merely to develop a better balanced, more attractive community. The District Court, while agreeing in general with that argument, saved the Act by construing it to mean that the Agency could condemn property only for the reasonable necessities of slum clearance and prevention, its concept of "slum" being the existence of conditions "injurious to the public health, safety, morals and welfare." 117 F. Supp. 705, 724-725.The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs. See District of Columbia v. Thompson Co., . We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia (see Block v. Hirsh, ) or the States legislating concerning local affairs. See Olsen v. Nebraska, ; Lincoln Union v. Northwestern Co., ; California State Association v. Maloney, . This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one. See Old Dominion Co. v. United States, ; United States ex rel. T. V. A. v. Welch, .Public safety, public health, morality, peace and quiet, law and order - these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. See Noble State Bank v. Haskell, . Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc. v. Missouri, . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. See Luxton v. North River Bridge Co., ; United States v. Gettysburg Electric R. Co., . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established. See Luxton v. North River Bridge Co., supra; cf. Highland v. Russell Car Co., . The public end may be as well or better served through an agency of private enterprise than through a department of government - or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with the over-all plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose.In the present case, Congress and its authorized agencies attack the problem of the blighted parts of the community on an area rather than on a structure-by-structure basis. That, too, is opposed by appellants. They maintain that since their building does not imperil health or safety nor contribute to the making of a slum or a blighted area, it cannot be swept into a redevelopment plan by the mere dictum of the Planning Commission or the Commissioners. The particular uses to be made of the land in the project were determined with regard to the needs of the particular community. The experts concluded that if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums - the over-crowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the removal of individual structures that were offensive, would be only a palliative. The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented. Cf. Gohld Realty Co. v. Hartford, 141 Conn. 135, 141-144, 104 A. 2d 365, 368-370; Hunter v. Redevelopment Authority, 195 Va. 326, 338-339, 78 S. E. 2d 893, 900-901. Such diversification in future use is plainly relevant to the maintenance of the desired housing standards and therefore within congressional power.The District Court below suggested that, if such a broad scope were intended for the statute, the standards contained in the Act would not be sufficiently definite to sustain the delegation of authority. 117 F. Supp. 705, 721. We do not agree. We think the standards prescribed were adequate for executing the plan to eliminate not only slums as narrowly defined by the District Court but also the blighted areas that tend to produce slums. Property may of course be taken for this redevelopment which, standing by itself, is innocuous and unoffending. But we have said enough to indicate that it is the need of the area as a whole which Congress and its agencies are evaluating. If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly. The argument pressed on us is, indeed, a plea to substitute the landowner's standard of the public need for the standard prescribed by Congress. But as we have already stated, community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis - lot by lot, building by building.It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch. See Shoemaker v. United States, ; United States ex rel. T. V. A. v. Welch, supra, 554; United States v. Carmack, .The District Court indicated grave doubts concerning the Agency's right to take full title to the land as distinguished from the objectionable buildings located on it. 117 F. Supp. 705, 715-719. We do not share those doubts. If the Agency considers it necessary in carrying out the redevelopment project to take full title to the real property involved, it may do so. It is not for the courts to determine whether it is necessary for successful consummation of the project that unsafe, unsightly, or insanitary buildings alone be taken or whether title to the land be included, any more than it is the function of the courts to sort and choose among the various parcels selected for condemnation.The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking.The judgment of the District Court, as modified by this opinion, is Affirmed.[Footnote *] The Act does not define either "slums" or "blighted areas." Section 3 (r), however, states:"`Substandard housing conditions' means the conditions obtaining in connection with the existence of any dwelling, or dwellings, or housing accommodations for human beings, which because of lack of sanitary facilities, ventilation, or light, or because of dilapidation, overcrowding, faulty interior arrangement, or any combination of these factors, is in the opinion of the Commissioners detrimental to the safety, health, morals, or welfare of the inhabitants of the District of Columbia." |
9 | After the Attorney General of Massachusetts (Attorney General) promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars, petitioners, a group of tobacco manufacturers and retailers, filed this suit asserting, among other things, the Supremacy Clause claim that the cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA), which prescribes mandatory health warnings for cigarette packaging and advertising, 15 U. S. C. §1333, and pre-empts similar state regulations, §1334(b); and a claim that the regulations violate the First and Fourteenth Amendments to the Federal Constitution. In large measure, the District Court upheld the regulations. Among its rulings, the court held that restrictions on the location of advertising were not pre-empted by the FCLAA, and that neither the regulations prohibiting outdoor advertising within 1,000 feet of a school or playground nor the sales practices regulations restricting the location and distribution of tobacco products violated the First Amendment. The court ruled, however, that the point-of-sale advertising regulations requiring that indoor advertising be placed no lower than five feet from the floor were invalid because the Attorney General had not provided sufficient justification for that restriction. The First Circuit affirmed the District Court's rulings that the cigarette advertising regulations are not pre-empted by the FCLAA and that the outdoor advertising regulations and the sales practices regulations do not violate the First Amendment under Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, but reversed the lower court's invalidation of the point-of-sale advertising regulations, concluding that the Attorney General is better suited than courts to determine what restrictions are necessary. Held: 1. The FCLAA pre-empts Massachusetts' regulations governing outdoor and point-of-sale cigarette advertising. Pp. 9-23. (a) The FCLAA's pre-emption provision, §1334, prohibits (a) requiring cigarette packages to bear any "statement relating to smoking and health, other than the statement required by" §1333, and (b) any "requirement or prohibition based on smoking and health ... imposed under state law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with" §1333. The Court's analysis begins with the statute's language. Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438. The statute's interpretation is aided by considering the predecessor pre-emption provision and the context in which the current language was adopted. See, e.g., Medtronic, Inc. v. Lohr, 518 U. S. 470, 486. The original provision simply prohibited any "statement relating to smoking and health ... in the advertising of any cigarettes the packages of which are labeled in conformity with the [Act's] provisions." Without question, the current pre-emption provision's plain language is much broader. Cipollone v. Liggett Group, Inc.,505 U. S. 504, 520. Rather than preventing only "statements," the amended provision reaches all "requirement[s] or prohibition[s] ... imposed under State law." And, although the former statute reached only statements "in the advertising," the current provision governs "with respect to the advertising or promotion" of cigarettes. At the same time that Congress expanded the pre-emption provision with respect to the States, it enacted a provision prohibiting cigarette advertising in electronic media altogether. Pp. 10-15. (b) Congress pre-empted state cigarette advertising regulations like the Attorney General's because they would upset federal legislative choices to require specific warnings and to impose the ban on cigarette advertising in electronic media in order to address concerns about smoking and health. In holding that the FCLAA does not nullify the Massachusetts regulations, the First Circuit concentrated on whether they are "with respect to" advertising and promotion, concluding that the FCLAA only pre-empts regulations of the content of cigarette advertising. The court also reasoned that the regulations are a form of zoning, a traditional area of state power, and, therefore, a presumption against pre-emption applied, see California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325. This Court rejects the notion that the regulations are not "with respect to" cigarette advertising and promotion. There is no question about an indirect relationship between the Massachusetts regulations and cigarette advertising: The regulations expressly target such advertising. Id., at 324-325. The Attorney General's argument that the regulations are not "based on smoking and health" since they do not involve health-related content, but instead target youth exposure to cigarette advertising, is unpersuasive because, at bottom, the youth exposure concern is intertwined with the smoking and health concern. Also unavailing is the Attorney General's claim that the regulations are not pre-empted because they govern the location, not the content, of cigarette advertising. The content/location distinction cannot be squared with the pre-emption provision's language, which reaches all "requirements" and "prohibitions" "imposed under State law." A distinction between advertising content and location in the FCLAA also cannot be reconciled with Congress' own location-based restriction, which bans advertising in electronic media, but not elsewhere. The Attorney General's assertion that a complete state ban on cigarette advertising would not be pre-empted because Congress did not intend to preclude local control of zoning finds no support in the FCLAA, whose comprehensive warnings, advertising restrictions, and pre-emption provision would make little sense if a State or locality could simply target and ban all cigarette advertising. Pp. 15-21. (c) The FCLAA's pre-emption provision does not restrict States' and localities' ability to enact generally applicable zoning restrictions on the location and size of advertisements that apply to cigarettes on equal terms with other products, see, e.g., Metromedia, Inc. v. San Diego, 453 U. S. 490, 507-508, or to regulate conduct as it relates to the sale or use of cigarettes, as by prohibiting cigarette sales to minors, see 42 U. S. C. §§300x-26(a)(1), 300x-21, as well as common inchoate offenses that attach to criminal conduct, such as solicitation, conspiracy, and attempt, cf. Central Hudson, supra, at 563-564. Pp. 21-22. (d) Because the issue was not decided below, the Court declines to reach the smokeless tobacco petitioners' argument that, if the outdoor and point-of-sale advertising regulations for cigarettes are pre-empted, then the same regulations for smokeless tobacco must be invalidated because they cannot be severed from the cigarette provisions. Pp. 22-23. 2. Massachusetts' outdoor and point-of-sale advertising regulations relating to smokeless tobacco and cigars violate the First Amendment, but the sales practices regulations relating to all three tobacco products are constitutional. Pp. 23-41. (a) Under Central Hudson's four-part test for analyzing regulations of commercial speech, the Court must determine (1) whether the expression is protected by the First Amendment, (2) whether the asserted governmental interest is substantial, (3) whether the regulation directly advances the governmental interest asserted, and (4) whether it is not more extensive than is necessary to serve that interest. 507 U. S. 761, 770-771. The fourth step of Central Hudson requires a reasonable fit between the legislature's ends and the means chosen to accomplish those ends, a means narrowly tailored to achieve the desired objective. E.g., Florida Bar v. Went For It, Inc., 515 U. S. 618, 632. Pp. 23-26. (b) The outdoor advertising regulations prohibiting smokeless tobacco or cigar advertising within 1,000 feet of a school or playground violate the First Amendment. Pp. 26-38. (1) Those regulations satisfy Central Hudson's third step by directly advancing the governmental interest asserted to justify them. The Court's detailed review of the record reveals that the Attorney General has provided ample documentation of the problem with underage use of smokeless tobacco and cigars. In addition, the Court disagrees with petitioners' claim that there is no evidence that preventing targeted advertising campaigns and limiting youth exposure to advertising will decrease underage use of those products. On the record below and in the posture of summary judgment, it cannot be concluded that the Attorney General's decision to regulate smokeless tobacco and cigar advertising in an effort to combat the use of tobacco products by minors was based on mere "speculation and conjecture." Edenfield, supra, at 770. Pp. 26-31. (2) Whatever the strength of the Attorney General's evidence to justify the outdoor advertising regulations, however, the regulations do not satisfy Central Hudson's fourth step. Their broad sweep indicates that the Attorney General did not "carefully calculat[e] the costs and benefits associated with the burden on speech imposed." Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417. The record indicates that the regulations prohibit advertising in a substantial portion of Massachusetts' major metropolitan areas; in some areas, they would constitute nearly a complete ban on the communication of truthful information. This substantial geographical reach is compounded by other factors. "Outdoor" advertising includes not only advertising located outside an establishment, but also advertising inside a store if visible from outside. Moreover, the regulations restrict advertisements of any size, and the term advertisement also includes oral statements. The uniformly broad sweep of the geographical limitation and the range of communications restricted demonstrate a lack of tailoring. The governmental interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. A speech regulation cannot unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products. The Attorney General has failed to show that the regulations at issue are not more extensive than necessary. Pp. 31-36. (c) The regulations prohibiting indoor, point-of-sale advertising of smokeless tobacco and cigars lower than 5 feet from the floor of a retail establishment located within 1,000 feet of a school or playground fail both the third and fourth steps of the Central Hudson analysis. The 5-foot rule does not seem to advance the goals of preventing minors from using tobacco products and curbing demand for that activity by limiting youth exposure to advertising. Not all children are less than 5 feet tall, and those who are can look up and take in their surroundings. Nor can the blanket height restriction be construed as a mere regulation of communicative action under United States v. O'Brien, 391 U. S. 367, since it is not unrelated to expression, see, e.g., Texas v. Johnson, 491 U. S. 397, 403, but attempts to regulate directly the communicative impact of indoor advertising. Moreover, the restriction does not constitute a reasonable fit with the goal of targeting tobacco advertising that entices children. Although the First Circuit decided that the restriction's burden on speech is very limited, there is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification. Pp. 36-38. (d) Assuming that petitioners have a cognizable speech interest in a particular means of displaying their products, cf. Cincinnati v. Discovery Network, Inc., 507 U. S. 410, the regulations requiring retailers to place tobacco products behind counters and requiring customers to have contact with a salesperson before they are able to handle such a product withstand First Amendment scrutiny. The State has demonstrated a substantial interest in preventing access to tobacco products by minors and has adopted an appropriately narrow means of advancing that interest. See e.g., O'Brien, supra, at 382. Because unattended displays of such products present an opportunity for access without the proper age verification required by law, the State prohibits self-service and other displays that would allow an individual to obtain tobacco without direct contact with a salesperson. It is clear that the regulations leave open ample communication channels. They do not significantly impede adult access to tobacco products, and retailers have other means of exercising any cognizable speech interest in the presentation of their products. The Court presumes that vendors may place empty tobacco packaging on open display, and display actual tobacco products so long as that display is only accessible to sales personnel. As for cigars, there is no indication that a customer is unable to examine a cigar prior to purchase, so long as that examination takes place through a salesperson. Pp. 38-40. (e) The Court declines to address the cigar petitioners' First Amendment challenge to a regulation prohibiting sampling or promotional giveaways of cigars and little cigars. That claim was not sufficiently briefed and argued before this Court. Pp. 40-41.218 F. 3d 30, affirmed in part, reversed in part, and remanded. O'Connor, J., delivered the opinion of the Court, Parts I, II-C, and II-D of which were unanimous; Parts III-A, III-C, and III-D of which were joined by Rehnquist, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ.; Part III-B-1 of which was joined by Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ.; and Parts II-A, II-B, III-B-2, and IV of which were joined by Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Souter, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Ginsburg and Breyer, JJ., joined, and in Part I of which Souter, J., joined.LORILLARD TOBACCO COMPANY, et al.,PETITIONERS00-596 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.ALTADIS U. S. A. INC., etc., et al., PETITIONERS00-597 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.on writs of certiorari to the united states court ofappeals for the first circuit[June 28, 2001] Justice O'Connor delivered the opinion of the Court. In January 1999, the Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. 940 Code of Mass. Regs. §§21.01-21.07, 22.01-22.09 (2000). Petitioners, a group of cigarette, smokeless tobacco, and cigar manufacturers and retailers, filed suit in Federal District Court claiming that the regulations violate federal law and the United States Constitution. In large measure, the District Court determined that the regulations are valid and enforceable. The United States Court of Appeals for the First Circuit affirmed in part and reversed in part, concluding that the regulations are not pre-empted by federal law and do not violate the First Amendment. The first question presented for our review is whether certain cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA), 79 Stat. 282, as amended, 15 U. S. C. §1331 et seq. The second question presented is whether certain regulations governing the advertising and sale of tobacco products violate the First Amendment.I In November 1998, Massachusetts, along with over 40 other States, reached a landmark agreement with major manufacturers in the cigarette industry. The signatory States settled their claims against these companies in exchange for monetary payments and permanent injunctive relief. See App. 253-258 (Outline of Terms for Massachusetts in National Tobacco Settlement); Master Settlement Agreement (Nov. 23, 1998), http://www.naag.org. At the press conference covering Massachusetts' decision to sign the agreement, then-Attorney General Scott Harshbarger announced that as one of his last acts in office, he would create consumer protection regulations to restrict advertising and sales practices for tobacco products. He explained that the regulations were necessary in order to "close holes" in the settlement agreement and "to stop Big Tobacco from recruiting new customers among the children of Massachusetts." App. 251. In January 1999, pursuant to his authority to prevent unfair or deceptive practices in trade, Mass. Gen. Laws, ch. 93A, §2 (1997), the Massachusetts Attorney General (Attorney General) promulgated regulations governing the sale and advertisement of cigarettes, smokeless tobacco, and cigars. The purpose of the cigarette and smokeless tobacco regulations is "to eliminate deception and unfairness in the way cigarettes and smokeless tobacco products are marketed, sold and distributed in Massachusetts in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age .... [and] in order to prevent access to such products by underage consumers." 940 Code of Mass. Regs. §21.01 (2000). The similar purpose of the cigar regulations is "to eliminate deception and unfairness in the way cigars and little cigars are packaged, marketed, sold and distributed in Massachusetts [so that] ... consumers may be adequately informed about the health risks associated with cigar smoking, its addictive properties, and the false perception that cigars are a safe alternative to cigarettes ... [and so that] the incidence of cigar use by children under legal age is addressed ... in order to prevent access to such products by underage consumers." Ibid. The regulations have a broader scope than the master settlement agreement, reaching advertising, sales practices, and members of the tobacco industry not covered by the agreement. The regulations place a variety of restrictions on outdoor advertising, point-of-sale advertising, retail sales transactions, transactions by mail, promotions, sampling of products, and labels for cigars. The cigarette and smokeless tobacco regulations being challenged before this Court provide:"(2) Retail Outlet Sales Practices. Except as otherwise provided in [§21.04(4)], it shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or smokeless tobacco products through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices:... . ."(c) Using self-service displays of cigarettes or smokeless tobacco products;"(d) Failing to place cigarettes and smokeless to-bacco products out of the reach of all consumers, andin a location accessible only to outlet personnel." §§21.04(2)(c)-(d)."(5) Advertising Restrictions. Except as provided in [§21.04(6)], it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:"(a) Outdoor advertising, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location that is within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school;"(b) Point-of-sale advertising of cigarettes or smokeless tobacco products any portion of which is placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment." §§21.04(5)(a)-(b).The cigar regulations that are still at issue provide:"(1) Retail Sales Practices. Except as otherwise provided in [§22.06(4)], it shall be an unfair or deceptive act or practice for any person who sells or distributes cigars or little cigars directly to consumers within Massachusetts to engage in any of the following practices:"(a) sampling of cigars or little cigars or promotional give-aways of cigars or little cigars." §21.06(1)(a)."(2) Retail Outlet Sales Practices. Except as otherwise provided in [§22.06(4)], it shall be an unfair or deceptive act or practice for any person who sells or distributes cigars or little cigars through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices:... . ."(c) Using self-service displays of cigars or little cigars; "(d) Failing to place cigars and little cigars out of the reach of all consumers, and in a location accessible only to outlet personnel." §§22.06(2)(c)-(d)."(5) Advertising Restrictions. Except as provided in [§22.06(6)], it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:"(a) Outdoor advertising of cigars or little cigars, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school;"(b) Point-of-sale advertising of cigars or little cigars any portion of which is placed lower than fivefeet from the floor of any retail establishment whichis located within a one thousand foot radius ofany public playground, playground area in a publicpark, elementary school or secondary school, and which is not an adult-only retail establishment." §§22.06(5)(a)- (b).The term "advertisement" is defined as:"any oral, written, graphic, or pictorial statement or representation, made by, or on behalf of, any person who manufactures, packages, imports for sale, distributes or sells within Massachusetts [tobacco products], the purpose or effect of which is to promote the use or sale of the product. Advertisement includes, without limitation, any picture, logo, symbol, motto, selling message, graphic display, visual image, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of [tobacco product]. This includes, without limitation, utilitarian items and permanent or semi-permanent fixtures with such indicia of product identification such as lighting fixtures, awnings, display cases, clocks and door mats, but does not include utilitarian items with a volume of 200 cubic inches or less." §§21.03, 22.03. Before the effective date of the regulations, February 1, 2000, members of the tobacco industry sued the Attorney General in the United States District Court for the District of Massachusetts. Four cigarette manufacturers (Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, R. J. Reynolds Tobacco Company, and Philip Morris Incorporated), a maker of smokeless tobacco products (U. S. Smokeless Tobacco Company), and several cigar manufacturers and retailers claimed that many of the regulations violate the Commerce Clause, the Supremacy Clause, the First and Fourteenth Amendments, and Rev. Stat. §1979, 42 U. S. C. §1983. The parties sought summary judgment. 76 F. Supp. 2d 124, 127 (1999); 84 F. Supp. 2d 180, 183 (2000). In its first ruling, the District Court considered the Supremacy Clause claim that the FCLAA, 15 U. S. C. §1331 et seq., pre-empts the cigarette advertising regulations. 76 F. Supp. 2d, at 128-134. The FCLAA prescribes the health warnings that must appear on packaging and in advertisements for cigarettes. The FCLAA contains a pre-emption provision that prohibits a State from imposing any "requirement or prohibition based on smoking and health ... with respect to the advertising or promotion of ... cigarettes." §1334(b). The FCLAA's pre-emption provision does not cover smokeless tobacco or cigars. The District Court explained that the central question for purposes of pre-emption is whether the regulations create a predicate legal duty based on smoking and health. The court reasoned that to read the pre-emption provision to proscribe any state advertising regulation enacted due to health concerns about smoking would expand Congress' purpose beyond a reasonable scope and leave States powerless to regulate in the area. The court concluded that restrictions on the location of advertising are not based on smoking and health and thus are not pre-empted by the FCLAA. The District Court also concluded that a provision that permitted retailers to display a black and white "tombstone" sign reading "Tobacco Products Sold Here," 940 Code of Mass. Regs. §21.04(6) (2000), was pre-empted by the FCLAA. In a separate ruling, the District Court considered the claim that the Attorney General's regulations violate the First Amendment. 84 F. Supp. 2d, at 183-196. Rejecting petitioners' argument that strict scrutiny should apply, the court applied the four-part test of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980), for commercial speech. The court reasoned that the Attorney General had provided an adequate basis for regulating cigars and smokeless tobacco as well as cigarettes because of the similarities among the products. The court held that the outdoor advertising regulations, which prohibit outdoor advertising within 1,000 feet of a school or playground, do not violate the First Amendment because they advance a substantial government interest and are narrowly tailored to suppress no more speech than necessary. The court concluded that the sales practices regulations, which restrict the location and distribution of tobacco products, survive scrutiny because they do not implicate a significant speech interest. The court invalidated the point-of-sale advertising regulations, which require that indoor advertising be placed no lower than five feet from the floor, finding that the Attorney General had not provided sufficient justification for that restriction. The District Court's ruling with respect to the cigar warning requirements and the Commerce Clause is not before this Court. The United States Court of Appeals for the First Circuit issued a stay pending appeal, App. 8-9, and affirmed in part and reversed in part the District Court's judgment, Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30 (2000). With respect to the Supremacy Clause, the Court of Appeals affirmed the District Court's ruling that the Attorney General's cigarette advertising regulations are not pre-empted by the FCLAA. The First Circuit was persuaded by the reasoning of the Second and Seventh Circuits, which had concluded that the FCLAA's pre-emption provision is ambiguous, and held that the provision pre-empts regulations of the content, but not the location, of cigarette advertising. See Greater New York Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633, 636-640 (CA7 1999). With respect to the First Amendment, the Court of Appeals applied the Central Hudson test. 447 U. S. 557 (1980). The court held that the outdoor advertising regulations do not violate the First Amendment. The court concluded that the restriction on outdoor advertising within 1,000 feet of a school or playground directly advances the State's substantial interest in preventing tobacco use by minors. The court also found that the outdoor advertising regulations restrict no more speech than necessary, reasoning that the distance chosen by the Attorney General is the sort of determination better suited for legislative and executive decisionmakers than courts. The Court of Appeals reversed the District Court's invalidation of the point-of-sale advertising regulations, again concluding that the Attorney General is better suited to determine what restrictions are necessary. The Court of Appeals also held that the sales practices regulations are valid under the First Amendment. The court found that the regulations directly advance the State's interest in preventing minors' access to tobacco products and that the regulations are narrowly tailored because retailers have a variety of other means to present the packaging of their products and to allow customers to examine the products. As for the argument that smokeless tobacco and cigars are different from cigarettes, the court expressed some misgivings about equating all tobacco products, but ultimately decided that the Attorney General had presented sufficient evidence with respect to all three products to regulate them similarly. The Court of Appeals' decision with respect to the cigar warning requirements and the Commerce Clause is not before this Court. The Court of Appeals stayed its mandate pending disposition of a petition for a writ of certiorari. App. 13. The cigarette manufacturers and U. S. Smokeless Tobacco Company filed a petition, challenging the Court of Appeals' decision with respect to the outdoor and point-of-sale advertising regulations on pre-emption and First Amendment grounds, and the sales practices regulations on First Amendment grounds. The cigar companies filed a separate petition, again raising a First Amendment challenge to the outdoor advertising, point-of-sale advertising, and sales practices regulations. We granted both petitions, 531 U. S. 1068 (2001), to resolve the conflict among the Courts of Appeals with respect to whether the FCLAA pre-empts cigarette advertising regulations like those at issue here, cf. Lindsey v. Tacoma-Pierce County Health Dept., 195 F. 3d 1065 (CA9 1999), and to decide the important First Amendment issues presented in these cases.II Before reaching the First Amendment issues, we must decide to what extent federal law pre-empts the Attorney General's regulations. The cigarette petitioners contend that the FCLAA, 15 U. S. C. §1331 et seq., pre-empts the Attorney General's cigarette advertising regulations.A Article VI of the United States Constitution commands that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. See also McCulloch v. Maryland, 4 Wheat. 316, 427 (1819) ("It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments"). This relatively clear and simple mandate has generated considerable discussion in cases where we have had to discern whether Congress has pre-empted state action in a particular area. State action may be foreclosed by express language in a congressional enactment, see, e.g., Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517 (1992), by implication from the depth and breadth of a congressional scheme that occupies the legislative field, see, e.g., Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), or by implication because of a conflict with a congressional enactment, see, e.g., Geier v. American Honda Motor Co., 529 U. S. 861, 869-874 (2000). In the FCLAA, Congress has crafted a comprehensive federal scheme governing the advertising and promotion of cigarettes. The FCLAA's pre-emption provision provides:"(a) Additional statements "No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package. "(b) State regulations "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." 15 U. S. C. §1334.The FCLAA's pre-emption provision does not cover smokeless tobacco or cigars. In this case, our task is to identify the domain expressly pre-empted, see Cipollone, supra, at 517, because "an express definition of the pre-emptive reach of a statute ... supports a reasonable inference ... that Congress did not intend to pre-empt other matters," Freightliner Corp. v. Myrick, 514 U. S. 280, 288 (1995). Congressional purpose is the "ultimate touchstone" of our inquiry. Cipollone, supra, at 516 (internal quotation marks omitted). Because "federal law is said to bar state action in [a] fiel[d] of traditional state regulation," namely, advertising, see Packer Corp. v. Utah, 285 U. S. 105, 108 (1932), we "wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress." California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997) (internal quotation marks omitted). See also Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996). Our analysis begins with the language of the statute. Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999). In the pre-emption provision, Congress unequivocally precludes the requirement of any additional statements on cigarette packages beyond those provided in §1333. 15 U. S. C. §1334(a). Congress further precludes States or localities from imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes. §1334(b). Without question, the second clause is more expansive than the first; it employs far more sweeping language to describe the state action that is pre-empted. We must give meaning to each element of the pre-emption provision. We are aided in our interpretation by considering the predecessor pre-emption provision and the circumstances in which the current language was adopted. See Medtronic, supra, at 486; McCarthy v. Bronson; K mart Corp. v. Cartier, Inc.. In 1964, the groundbreaking Report of the Surgeon General's Advisory Committee on Smoking and Health concluded that "[c]igarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action." Department of Health, Education, and Welfare, U. S. Surgeon General's Advisory Committee, Smoking and Health 33. In 1965, Congress enacted the FCLAA as a proactive measure in the face of impending regulation by federal agencies and the States. Pub. L. 89-92, 79 Stat. 282. See also Cipollone, supra, at 513-515. The purpose of the FCLAA was twofold: to inform the public adequately about the hazards of cigarette smoking, and to protect the national economy from interference due to diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to the relationship between smoking and health. Pub. L. 89-92, §2. The FCLAA prescribed a label for cigarette packages: "Caution: Cigarette Smoking May Be Hazardous to Your Health." §4. The FCLAA also required the Secretary of Health, Education, and Welfare (HEW) and the Federal Trade Commission (FTC) to report annually to Congress about the health consequences of smoking and the advertising and promotion of cigarettes. §5. Section 5 of the FCLAA included a pre-emption provision in which "Congress spoke precisely and narrowly." Cipollone, supra, at 518. Subsection 5(a) prohibited any requirement of additional statements on cigarette packaging. Subsection 5(b) provided that "[n]o statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act." Section 10 of the FCLAA set a termination date of July 1, 1969 for these provisions. As we have previously explained, "on their face, [the pre-emption] provisions merely prohibited state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels [subsection (a)] or in cigarette advertisements [subsection (b)]." Cipollone, 505 U. S., at 518. The FCLAA was enacted with the expectation that Congress would reexamine it in 1969 in light of the developing information about cigarette smoking and health. H. R. Rep. No. 586, 89th Cong., 1st Sess., 6 (1965); 111 Cong. Rec. 16541 (1965). In the intervening years, Congress received reports and recommendations from the HEW Secretary and the FTC. S. Rep. No. 91-566, pp. 2-6 (1969). The HEW Secretary recommended that Congress strengthen the warning, require the warning on all packages and in advertisements, and publish tar and nicotine levels on packages and in advertisements. Id., at 4. The FTC made similar and additional recommendations. The FTC sought a complete ban on radio and television advertising, a requirement that broadcasters devote time for health hazard announcements concerning smoking, and increased funding for public education and research about smoking. Id., at 6. The FTC urged Congress not to continue to prevent federal agencies from regulating cigarette advertising. Id., at 10. In addition, the Federal Communications Commission (FCC) had concluded that advertising which promoted the use of cigarettes created a duty in broadcast stations to provide information about the hazards of cigarette smoking. Id., at 6-7. In 1969, House and Senate committees held hearings about the health effects of cigarette smoking and advertising by the cigarette industry. The bill that emerged from the House of Representatives strengthened the warning and maintained the pre-emption provision. The Senate amended that bill, adding the ban on radio and television advertising, and changing the pre-emption language to its present form. H. R. Conf. Rep. No. 91-897, pp. 4-5 (1970). The final result was the Public Health Cigarette Smoking Act of 1969, in which Congress, following the Senate's amendments, made three significant changes to the FCLAA. Pub. L. 91-222, §2, 84 Stat. 87. First, Congress drafted a new label that read: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health." FCLAA, §4. Second, Congress declared it unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the FCC. §6. Finally, Congress enacted the current pre-emption provision, which proscribes any "requirement or prohibition based on smoking and health ... imposed under State law with respect to the advertising or promotion" of cigarettes. §5(b). The new subsection 5(b) did not pre-empt regulation by federal agencies, freeing the FTC to impose warning requirements in cigarette advertising. See Cipollone, supra, at 515. The new pre-emption provision, like its predecessor, only applied to cigarettes, and not other tobacco products. In 1984, Congress again amended the FCLAA in the Comprehensive Smoking Education Act. Pub. L. 98-474, 98 Stat. 2200. The purpose of the Act was to "provide a new strategy for making Americans more aware of any adverse health effects of smoking, to assure the timely and widespread dissemination of research findings and to enable individuals to make informed decisions about smoking." §2. The Act established a series of warnings to appear on a rotating basis on cigarette packages and in cigarette advertising, §4, and directed the Health and Human Services Secretary to create and implement an educational program about the health effects of cigarette smoking, §3. The FTC has continued to report on trade practices in the cigarette industry. In 1999, the first year since the master settlement agreement, the FTC reported that the cigarette industry expended $8.24 billion on advertising and promotions, the largest expenditure ever. FTC, Cigarette Report for 1999, p. 1 (2000). Substantial increases were found in point-of-sale promotions, payments made to retailers to facilitate sales, and retail offers such as buy one, get one free, or product giveaways. Id., at 4-5. Substantial decreases, however, were reported for outdoor advertising and transit advertising. Id., at 2. Congress and federal agencies continue to monitor advertising and promotion practices in the cigarette industry. The scope and meaning of the current pre-emption provision become clearer once we consider the original pre-emption language and the amendments to the FCLAA. Without question, "the plain language of the pre-emption provision in the 1969 Act is much broader." Cipollone, 505 U. S., at 520. Rather than preventing only "statements," the amended provision reaches all "requirement[s] or prohibition[s] ... imposed under State law." And, although the former statute reached only statements "in the advertising," the current provision governs "with respect to the advertising or promotion" of cigarettes. See ibid. Congress expanded the pre-emption provision with respect to the States, and at the same time, it allowed the FTC to regulate cigarette advertising. Congress also prohibited cigarette advertising in electronic media altogether. Viewed in light of the context in which the current pre-emption provision was adopted, we must determine whether the FCLAA pre-empts Massachusetts' regula-tions governing outdoor and point-of-sale advertising of cigarettes.B The Court of Appeals acknowledged that the FCLAA pre-empts any "requirement or prohibition based on smoking and health ... with respect to the advertising or promotion of ... cigarettes," 15 U. S. C. §1334(b), but concluded that the FCLAA does not nullify Massachusetts' cigarette advertising regulations. The court concentrated its analysis on whether the regulations are "with respect to" advertising and promotion, relying on two of its sister Circuits to conclude that the FCLAA only pre-empts regulations of the content of cigarette advertising. The Court of Appeals also reasoned that the Attorney General's regulations are a form of zoning, a traditional area of state power; therefore the presumption against pre-emption applied. The cigarette petitioners maintain that the Court of Appeals' "with respect to" analysis is inconsistent with the FCLAA's statutory text and legislative history, and gives the States license to prohibit almost all cigarette advertising. Petitioners also maintain that there is no basis for construing the pre-emption provision to prohibit only content-based advertising regulations. Although they support the Court of Appeals' result, the Attorney General and United States as amicus curiae do not fully endorse that court's textual analysis of the pre-emption provision. Instead, they assert that the cigarette advertising regulations are not pre-empted because they are not "based on smoking and health." The Attorney General and the United States also contend that the regulations are not pre-empted because they do not prescribe the content of cigarette advertising and they fall squarely within the State's traditional powers to control the location of advertising and to protect the welfare of children. Turning first to the language in the pre-emption provision relied upon by the Court of Appeals, we reject the notion that the Attorney General's cigarette advertising regulations are not "with respect to" advertising and promotion. We disagree with the Court of Appeals' analogy to the Employee Retirement Income Security Act of 1974 (ERISA). In some cases concerning ERISA's pre-emption of state law, the Court has had to decide whether a particular state law "relates to" an employee benefit plan covered by ERISA even though the state law makes no express reference to such a plan. See, e.g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S., at 324-325. Here, however, there is no question about an indirect relationship between the regulations and cigarette advertising because the regulations expressly target cigarette advertising. 940 Code of Mass. Regs. §21.04(5) (2000). Before this Court, the Attorney General focuses on a different phrase in the pre-emption provision: "based on smoking and health." The Attorney General argues that the cigarette advertising regulations are not "based on smoking and health," because they do not involve health-related content in cigarette advertising but instead target youth exposure to cigarette advertising. To be sure, Members of this Court have debated the precise meaning of "based on smoking and health," see Cipollone, supra, at 529, n. 7 (plurality opinion), but we cannot agree with the Attorney General's narrow construction of the phrase. As Congress enacted the current pre-emption provision, Congress did not concern itself solely with health warnings for cigarettes. In the 1969 amendments, Congress not only enhanced its scheme to warn the public about the hazards of cigarette smoking, but also sought to protect the public, including youth, from being inundated with images of cigarette smoking in advertising. In pursuit of the latter goal, Congress banned electronic media advertising of cigarettes. And to the extent that Congress contemplated additional targeted regulation of cigarette advertising, it vested that authority in the FTC. The context in which Congress crafted the current pre-emption provision leads us to conclude that Congress prohibited state cigarette advertising regulations motivated by concerns about smoking and health. Massachusetts has attempted to address the incidence of underage cigarette smoking by regulating advertising, see 940 Code of Mass. Regs. §21.01 (2000), much like Congress' ban on cigarette advertising in electronic media. At bottom, the concern about youth exposure to cigarette advertising is intertwined with the concern about cigarette smoking and health. Thus the Attorney General's attempt to distinguish one concern from the other must be rejected. The Attorney General next claims that the State's outdoor and point-of-sale advertising regulations for cigarettes are not pre-empted because they govern the location, and not the content, of advertising. This is also Justice Stevens' main point with respect to pre-emption. Post, at 6 (opinion concurring in part and dissenting in part). The content versus location distinction has some surface appeal. The pre-emption provision immediately follows the section of the FCLAA that prescribes warnings. See 15 U. S. C. §§1333, 1334. The pre-emption provision itself refers to cigarettes "labeled in conformity with" the statute. §1334(b). But the content/location distinction cannot be squared with the language of the pre-emption provision, which reaches all "requirements" and "prohibitions" "imposed under State law." A distinction between the content of advertising and the location of advertising in the FCLAA also cannot be reconciled with Congress' own location-based restriction, which bans advertising in electronic media, but not elsewhere. See §1335. We are not at liberty to pick and choose which provisions in the legislative scheme we will consider, see post, at 7, n. 5 (opinion of Stevens, J.), but must examine the FCLAA as a whole. Moreover, any distinction between the content and location of cigarette advertising collapses once the implications of that approach are fully considered. At oral argument, the Attorney General was pressed to explain what types of state regulations of cigarette advertising, in his view, are pre-empted by the FCLAA. The Attorney General maintained that a state law that required cigarette retailers to remove the word "tobacco" from advertisements, or required cigarette billboards to be blank, would be pre-empted if it were a regulation of "health-related content." Tr. of Oral Arg. 41, 42. The Attorney General also maintained, however, that a complete ban on all cigarette advertising would not be pre-empted because Congress did not intend to invade local control over zoning. Id., at 42-44. The latter position clearly follows from the factual distinction between content and location, but it finds no support in the text of the FCLAA's pre-emption provision. We believe that Congress wished to ensure that "a State could not do through negative mandate (e.g., banning all cigarette advertising) that which it already was forbidden to do through positive mandate (e.g., mandating particular cautionary statements)." Cipollone, 505 U. S., at 539 (Blackmun, J., joined by Kennedy and Souter, JJ., concurring in part and dissenting inpart). See also Vango Media, Inc. v. New York, 34 F.3d 68 (CA2 1994) (holding pre-empted a regulation that required one public health message for every four cigarette advertisements). Justice Stevens, post, at 6-10, maintains that Congress did not intend to displace state regulation of the location of cigarette advertising. There is a critical distinction, however, between generally applicable zoning regulations, see infra, at 21-22, and regulations targeting cigarette advertising. The latter type of regulation, which is inevitably motivated by concerns about smoking and health, squarely contradicts the FCLAA. The FCLAA's comprehensive warnings, advertising restrictions, and pre-emption provision would make little sense if a Stateor locality could simply target and ban all cigaretteadvertising. Justice Stevens finds it ironic that we conclude that "federal law precludes States and localities from protecting children from dangerous products within 1,000 feet of a school," in light of our prior conclusion that the "Federal Government lacks the constitutional authority to impose a similarly-motivated ban" in United States v. Lopez, 514 U. S. 549 (1995). Post, at 10, n. 8. Our holding is not as broad as the dissent states; we hold only that the FCLAA pre-empts state regulations targeting cigarette advertising. States remain free to enact generally applicable zoning regulations, and to regulate conduct with respect to cigarette use and sales. Infra, at 21-22. The reference to Lopez is also inapposite. In Lopez, we held that Congress exceeded the limits of its Commerce Clause power in the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a firearm in a school zone. 514 U. S., at 553-568. This case, by contrast, concerns the Supremacy Clause and the doctrine of pre-emption as applied in a case where Congress expressly precluded certain state regulations of cigarette advertising. Massachusetts did not raise a constitutional challenge to the FCLAA, and we are not confronted with whether Congress exceeded its constitutionally delegated authority in enacting the FCLAA. In sum, we fail to see how the FCLAA and its pre-emption provision permit a distinction between the specific concern about minors and cigarette advertising and the more general concern about smoking and health in cigarette advertising, especially in light of the fact that Congress crafted a legislative solution for those very concerns. We also conclude that a distinction between state regulation of the location as opposed to the content of cigarette advertising has no foundation in the text of the pre-emption provision. Congress pre-empted state cigarette advertising regulations like the Attorney General's because they would upset federal legislative choices to require specific warnings and to impose the ban on cigarette advertising in electronic media in order to address concerns about smoking and health. Accordingly, we hold that the Attorney General's outdoor and point-of-sale advertising regulations targeting cigarettes are pre-empted by the FCLAA.C Although the FCLAA prevents States and localities from imposing special requirements or prohibitions "based on smoking and health" "with respect to the advertising or promotion" of cigarettes, that language still leaves significant power in the hands of States to impose generally applicable zoning regulations and to regulate conduct. As we noted in Cipollone, "each phrase within [the provision] limits the universe of [state action] pre-empted by the statute." 505 U. S., at 524 (plurality opinion). For instance, the FCLAA does not restrict a State or locality's ability to enact generally applicable zoning restrictions. We have recognized that state interests in traffic safety and esthetics may justify zoning regulations for advertising. See Metromedia, Inc. v. San Diego, 453 U. S. 490, 507-508 (1981). See also St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269, 274 (1919); Thomas Cusack Co. v. Chicago, 242 U. S. 526, 529-531 (1917). Although Congress has taken into account the unique concerns about cigarette smoking and health in advertising, there is no indication that Congress intended to displace local community interests in general regulations of the location of billboards or large marquee advertising, or that Congress intended cigarette advertisers to be afforded special treatment in that regard. Restrictions on the location and size of advertisements that apply to cigarettes on equal terms with other products appear to be outside the ambit of the pre-emption provision. Such restrictions are not "based on smoking and health." The FCLAA also does not foreclose all state regulation of conduct as it relates to the sale or use of cigarettes. The FCLAA's pre-emption provision explicitly governs state regulations of "advertising or promotion."** Accordingly, the FCLAA does not pre-empt state laws prohibiting cigarette sales to minors. To the contrary, there is an established congressional policy that supports such laws; Congress has required States to prohibit tobacco sales to minors as a condition of receiving federal block grant funding for substance abuse treatment activities. 106 Stat. 394, 388, 42 U. S. C. §§300x-26(a)(1), 300x-21. In Massachusetts, it is illegal to sell or distribute tobacco products to persons under the age of 18. Mass. Gen. Laws, ch. 270, §6 (2000). Having prohibited the sale and distribution of tobacco products to minors, the State may prohibit common inchoate offenses that attach to criminal conduct, such as solicitation, conspiracy, and attempt. Cf. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U. S. 557, 563-564 (1980); Carey v. Population Servs. Int'l, 431 U. S. 678, 701 (1977); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 772 (1976); 60 Fed. Reg. 41330-41332 (1995) (citing evidence that industry may be attempting to induce individuals under 18 to smoke cigarettes). States and localities also have at their disposal other means of regulating conduct to ensure that minors do not obtain cigarettes. See Part III-D, infra.D The smokeless tobacco petitioners argue that if the State's outdoor and point-of-sale advertising regulations for cigarettes are pre-empted, then the same advertising regulations with respect to smokeless tobacco must be invalidated because they cannot be severed from the cigarette provisions. Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, p. 4, n. 5. The District Court did not reach the severability issue with respect to the advertising provisions that are before this Court. 76 F. Supp. 2d, at 134, n. 11. The Court of Appeals also did not reach severability because that court likewise concluded that the cigarette advertising regulations were not pre-empted. 218 F. 3d, at 37, n. 3. We decline to reach an issue that was not decided below. National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).III By its terms, the FCLAA's pre-emption provision only applies to cigarettes. Accordingly, we must evaluate the smokeless tobacco and cigar petitioners' First Amendment challenges to the State's outdoor and point-of-sale advertising regulations. The cigarette petitioners did not raise a pre-emption challenge to the sales practices regulations. Thus, we must analyze the cigarette as well as the smokeless tobacco and cigar petitioners' claim that certain sales practices regulations for tobacco products violate the First Amendment.A For over 25 years, the Court has recognized that commercial speech does not fall outside the purview of the First Amendment. See, e.g., Virginia Bd. of Pharmacy, supra, at 762. Instead, the Court has afforded commercial speech a measure of First Amendment protection " `commensurate' " with its position in relation to other constitutionally guaranteed expression. See, e.g., Florida Bar v. Went For It, Inc., 515 U. S. 618, 623 (1995) (quoting Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989)). In recognition of the "distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech," Central Hudson, supra, at 562 (internal quotation marks omitted), we developed a framework for analyzing regulations of commercial speech that is "substantially similar" to the test for time, place, and manner restrictions, Board of Trustees of State Univ. of N. Y. v. Fox, supra, at 477. The analysis contains four elements:"At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson, supra, at 566. Petitioners urge us to reject the Central Hudson analysis and apply strict scrutiny. They are not the first litigants to do so. See, e.g., Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 184 (1999). Admittedly, several Members of the Court have expressed doubts about the Central Hudson analysis and whether it should apply in particular cases. See, e.g., Greater New Orleans, supra, at 197 (Thomas, J., concurring in judgment); 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 501, 510-514 (1996) (joint opinion of Stevens, Kennedy, and Ginsburg, JJ.); id., at 517 (Scalia, J. concurring in part and concurring in judgment); id., at 518 (Thomas, J., concurring in part and concurring in judgment). But here, as in Greater New Orleans, we see "no need to break new ground. Central Hudson, as applied in our more recent commercial speech cases, provides an adequate basis for decision." 527 U. S., at 184. Only the last two steps of Central Hudson's four-part analysis are at issue here. The Attorney General has assumed for purposes of summary judgment that petitioners' speech is entitled to First Amendment protection. 218 F. 3d., at 43; 84 F. Supp. 2d, at 185-186. With respect to the second step, none of the petitioners contests the importance of the State's interest in preventing the use of tobacco products by minors. Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, p. 41; Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 16; Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, p. 8. The third step of Central Hudson concerns the relationship between the harm that underlies the State's interest and the means identified by the State to advance that interest. It requires that"the speech restriction directly and materially advanc[e] the asserted governmental interest. `This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.' " Greater New Orleans, supra, at 188 (quoting Edenfield v. Fane, 507 U. S. 761, 770-771 (1993)). We do not, however, require that "empirical data come ... accompanied by a surfeit of background information... [W]e have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and `simple common sense.' " Florida Bar v. Went For It, Inc., 515 U. S., at 628 (citations and internal quotation marks omitted). The last step of the Central Hudson analysis "complements" the third step, "asking whether the speech restriction is not more extensive than necessary to serve the interests that support it." Greater New Orleans, supra, at 188. We have made it clear that "the least restrictive means" is not the standard; instead, the case law requires a reasonable " `fit between the legislature's ends and the means chosen to accomplish those ends, ... a means narrowly tailored to achieve the desired objective.' " Went For It, Inc., supra, at 632 (quoting Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S., at 480). Focusing on the third and fourth steps of the Central Hudson analysis, we first address the outdoor advertising and point-of-sale advertising regulations for smokeless tobacco and cigars. We then address the sales practices regulations for all tobacco products.B The outdoor advertising regulations prohibit smokeless tobacco or cigar advertising within a 1,000-foot radius of a school or playground. 940 Code of Mass. Regs. §§21.04(5)(a), 22.06(5)(a) (2000). The District Court and Court of Appeals concluded that the Attorney General had identified a real problem with underage use of tobacco products, that limiting youth exposure to advertising would combat that problem, and that the regulations burdened no more speech than necessary to accomplish the State's goal. 218 F. 3d, at 44-53; 84 F. Supp. 2d, at 186-193. The smokeless tobacco and cigar petitioners take issue with all of these conclusions.1 The smokeless tobacco and cigar petitioners contend that the Attorney General's regulations do not satisfy Central Hudson's third step. They maintain that although the Attorney General may have identified a problem with underage cigarette smoking, he has not identified an equally severe problem with respect to underage use of smokeless tobacco or cigars. The smokeless tobacco petitioner emphasizes the "lack of parity" between cigarettes and smokeless tobacco. Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 19; Reply Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, pp. 4, 10-11. The cigar petitioners catalogue a list of differences between cigars and other tobacco products, including the characteristics of the products and marketing strategies. Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, at 9-11. The petitioners finally contend that the Attorney General cannot prove that advertising has a causal link to tobacco use such that limiting advertising will materially alleviate any problem of underage use of their products. Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 20-22; Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, at 9-16. In previous cases, we have acknowledged the theory that product advertising stimulates demand for products, while suppressed advertising may have the opposite effect. See Rubin, 509 U. S. 418, 434 (1993); Central Hudson,447 U. S., at 568-569. The Attorney General cites numerous studies to support this theory in the case of tobacco products. The Attorney General relies in part on evidence gathered by the Food and Drug Administration (FDA) in its attempt to regulate the advertising of cigarettes and smokeless tobacco. See Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco Products to Protect Children and Adolescents, FDA Proposed Rule, 60 Fed. Reg. 41314 (1995); Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, FDA Final Rule, 61 Fed. Reg. 44396 (1996). The FDA promulgated the advertising regulations after finding that the period prior to adulthood is when an overwhelming majority of Americans first decide to use tobacco products, and that advertising plays a crucial role in that decision. FDA Final Rule, 61 Fed. Reg., at 44398-44399. We later held that the FDA lacks statutory authority to regulate tobacco products. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000). Nevertheless, the Attorney General relies on the FDA's proceedings and other studies to support his decision that advertising affects demand for tobacco products. Cf. Erie v. Pap's A. M., 529 U. S. 277, 296 (2000) (plurality opinion) (cities and localities may rely on evidence from other jurisdictions to demonstrate harmful secondary effects of adult entertainment and to justify regulation); Barnes v. Glen Theatre, Inc., 501 U. S. 560, 583-584 (1991) (Souter, J., concurring in judgment) (same); Renton v. Playtime Theatres, Inc., 475 U. S. 41, 50-52 (1986) (same). See also Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 393, and n. 6 (2000) (discussing evidence of corruption and the appearance of corruption in campaign finance). In its rulemaking proceeding, the FDA considered several studies of tobacco advertising and trends in the use of various tobacco products. The Surgeon General's report and the Institute of Medicine's report found that "there is sufficient evidence to conclude that advertising and labeling play a significant and important contributory role in a young person's decision to use cigarettes or smokeless tobacco products." 60 Fed. Reg. 41332. See also Pierce et al., Tobacco Industry Promotion of Cigarettes and Adolescent Smoking, 279 JAMA 511, 514 (1998). For instance, children smoke fewer brands of cigarettes than adults, and those choices directly track the most heavily advertised brands, unlike adult choices, which are more dispersed and related to pricing. FDA Proposed Rule, 60 Fed. Reg. 41332. Another study revealed that 72% of 6 year olds and 52% of children ages 3 to 6 recognized "Joe Camel," the cartoon anthropomorphic symbol of R. J. Reynolds' Camel brand cigarettes. Id., at 41333. After the introduction of Joe Camel, Camel cigarettes' share of the youth market rose from 4% to 13%. Id., at 41330. The FDA also identified trends in tobacco consumption among certain populations, such as young women, that correlated to the introduction and marketing of products geared toward that population. Id., at 41333. The FDA also made specific findings with respect to smokeless tobacco. The FDA concluded that "[t]he recent and very large increase in the use of smokeless tobacco products by young people and the addictive nature of these products has persuaded the agency that these products must be included in any regulatory approach that is designed to help prevent future generations of young people from becoming addicted to nicotine-containing tobacco products." Id., at 41318. Studies have analyzed smokeless tobacco use by young people, discussing trends based on gender, school grade, and locale. See, e.g., Boyd et al., Use of Smokeless Tobacco among Children and Adolescents in the United States, 16 Preventative Medicine 402-418 (1987), Record, Doc. No. 38, Exh. 63. Researchers tracked a dramatic shift in patterns of smokeless tobacco use from older to younger users over the past 30 years. See, e.g., FDA Proposed Rule, 60 Fed. Reg., at 41317; Tomar et al., Smokeless tobacco brand preference and brand switching among US adolescents and young adults, 4 Tobacco Control 67 (1995), Record, Doc. No. 38, Exh. 62; Department of Health and Human Services, Preventing Tobacco Use Among Young People: A Report of the Surgeon General 163 (1994), Record, Doc. No. 36, Exh. 1. In particular, the smokeless tobacco industry boosted sales tenfold in the 1970s and 1980s by targeting young males. FDA Proposed Rule, 60 Fed. Reg., at 41331. See also National Cancer Institute, Cigars: Health Effects and Trends, Smoking and Tobacco Control Monograph No. 9, p. 16 (1998), Record, Doc. No. 39, Exh. 67. Another study documented the targeting of youth through smokeless tobacco sales and advertising techniques. Ernster, Advertising and Promotion of Smokeless Tobacco Products, National Cancer Institute Monograph No. 8, pp. 87-93 (1989), Record, Doc. No. 38, Exh. 66. The Attorney General presents different evidence with respect to cigars. There was no data on underage cigar use prior to 1996 because the behavior was considered "uncommon enough not to be worthy of examination." Smoking and Tobacco Control Monograph No. 9, at 13; FTC Report to Congress: Cigar Sales and Advertising and Promotional Expenses for Calendar Years 1996 and 1997, p. 9 (1999), Record, Doc. No. 39, Exh. 71. In 1995, the FDA decided not to include cigars in its attempted regulation of tobacco product advertising, explaining that "the agency does not currently have sufficient evidence that these products are drug delivery devices ... . FDA has focused its investigation of its authority over tobacco products on cigarettes and smokeless tobacco products, and not on pipe tobacco or cigars, because young people predominantly use cigarettes and smokeless tobacco products." 60 Fed. Reg. 41322. More recently, however, data on youth cigar use has emerged. The National Cancer Institute concluded in its 1998 Monograph that the rate of cigar use by minors is increasing and that, in some States, the cigar use rates are higher than the smokeless tobacco use rates for minors. Smoking and Tobacco Control Monograph No. 9, at 19, 42-51. In its 1999 Report to Congress, the FTC concluded that "substantial numbers of adolescents are trying cigars." FTC Report to Congress, at 9. See also Department of Health and Human Services, Office of Inspector General, Youth Use of Cigars: Patterns of Use and Perceptions of Risk (1999), Record, Doc. No. 39, Exh. 78. Studies have also demonstrated a link between advertising and demand for cigars. After Congress recognized the power of images in advertising and banned cigarette advertising in electronic media, television advertising of small cigars "increased dramatically in 1972 and 1973," "filled the void left by cigarette advertisers," and "sales ... soared." Smoking and Tobacco Control Monograph No. 9, at 24. In 1973, Congress extended the electronic media advertising ban for cigarettes to little cigars. Little Cigar Act, §3, Pub. L. 93-109, 87 Stat. 352, as amended, 15 U. S. C. §1335. In the 1990s, cigar advertising campaigns triggered a boost in sales. Smoking and Tobacco Control Monograph No. 9, at 215. Our review of the record reveals that the Attorney General has provided ample documentation of the problem with underage use of smokeless tobacco and cigars. In addition, we disagree with petitioners' claim that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of smokeless tobacco and cigars. On this record and in the posture of summary judgment, we are unable to conclude that the Attorney General's decision to regulate advertising of smokeless tobacco and cigars in an effort to combat the use of tobacco products by minors was based on mere "speculation [and] conjecture." Edenfield v. Fane, 507 U. S., at 770.2 Whatever the strength of the Attorney General's evidence to justify the outdoor advertising regulations, however, we conclude that the regulations do not satisfy the fourth step of the Central Hudson analysis. The final step of the Central Hudson analysis, the "critical inquiry in this case," requires a reasonable fit between the means and ends of the regulatory scheme. 507 U. S. 410, 417 (1993) (internal quotation marks omitted). The outdoor advertising regulations prohibit any smokeless tobacco or cigar advertising within 1,000 feet of schools or playgrounds. In the District Court, petitioners maintained that this prohibition would prevent advertising in 87% to 91% of Boston, Worchester, and Springfield, Massachusetts. 84 F. Supp. 2d, at 191. The 87% to 91% figure appears to include not only the effect of the regulations, but also the limitations imposed by other generally applicable zoning restrictions. See App. 161-167. The Attorney General disputed petitioners' figures but "concede[d] that the reach of the regulations is substantial." 218 F. 3d, at 50. Thus, the Court of Appeals concluded that the regulations prohibit advertising in a substantial portion of the major metropolitan areas of Massachusetts. Ibid. The substantial geographical reach of the Attorney General's outdoor advertising regulations is compounded by other factors. "Outdoor" advertising includes not only advertising located outside an establishment, but also advertising inside a store if that advertising is visible from outside the store. The regulations restrict advertisements of any size and the term advertisement also includes oral statements. 940 Code of Mass. Regs §§21.03, 22.03 (2000). In some geographical areas, these regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers. The breadth and scope of the regulations, and the process by which the Attorney General adopted the regulations, do not demonstrate a careful calculation of the speech interests involved. First, the Attorney General did not seem to consider the impact of the 1,000-foot restriction on commercial speech in major metropolitan areas. The Attorney General apparently selected the 1,000-foot distance based on the FDA's decision to impose an identical 1,000-foot restriction when it attempted to regulate cigarette and smokeless tobacco advertising. See FDA Final Rule, 61 Fed. Reg. 44399; Brief for Respondents 45, and n. 23. But the FDA's 1,000-foot regulation was not an adequate basis for the Attorney General to tailor the Massachusetts regulations. The degree to which speech is suppressed — or alternative avenues for speech remain available — under a particular regulatory scheme tends to be case specific. See, e.g., Renton, 475 U. S., at 53-54. And a case specific analysis makes sense, for although a State or locality may have common interests and concerns about underage smoking and the effects of tobacco advertisements, the impact of a restriction on speech will undoubtedly vary from place to place. The FDA's regulations would have had widely disparate effects nationwide. Even in Massachusetts, the effect of the Attorney General's speech regulations will vary based on whether a locale is rural, suburban, or urban. The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring. In addition, the range of communications restricted seems unduly broad. For instance, it is not clear from the regulatory scheme why a ban on oral communications is necessary to further the State's interest. Apparently that restriction means that a retailer is unable to answer inquiries about its tobacco products if that communication occurs outdoors. Similarly, a ban on all signs of any size seems ill suited to target the problem of highly visible billboards, as opposed to smaller signs. To the extent that studies have identified particular advertising and promotion practices that appeal to youth, tailoring would involve targeting those practices while permitting others. As crafted, the regulations make no distinction among practices on this basis. The Court of Appeals recognized that the smokeless tobacco and cigar petitioners' concern about the amount of speech restricted was "valid," but reasoned that there was an "obvious connection to the state's interest in protecting minors." 218 F. 3d, at 50. Even on the premise that Massachusetts has demonstrated a connection between the outdoor advertising regulations and its substantial interest in preventing underage tobacco use, the question of tailoring remains. The Court of Appeals failed to follow through with an analysis of the countervailing First Amendment interests. The State's interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products. In a case involving indecent speech on the Internet we explained that "the governmental interest in protecting children from harmful materials ... does not justify an unnecessarily broad suppression of speech addressed to adults." Reno v. American Civil Liberties Union, 521 U. S. 844, 875 (1997) (citations omitted). See, e.g., Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74 (1983) ("The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox"); Butler v. Michigan, 352 U. S. 380, 383 (1957) ("The incidence of this enactment is to reduce the adult population ... to reading only what is fit for children"). As the State protects children from tobacco advertisements, tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication. Cf. American Civil Liberties Union, supra, at 886-889 (O'Connor, J., concurring in judgment in part and dissenting in part) (discussing the creation of "adult zones" on the Internet). In some instances, Massachusetts' outdoor advertising regulations would impose particularly onerous burdens on speech. For example, we disagree with the Court of Appeals' conclusion that because cigar manufacturers and retailers conduct a limited amount of advertising in comparison to other tobacco products, "the relative lack of cigar advertising also means that the burden imposed on cigar advertisers is correspondingly small." 218 F. 3d, at 49. If some retailers have relatively small advertising budgets, and use few avenues of communication, then the Attorney General's outdoor advertising regulations potentially place a greater, not lesser, burden on those retailers' speech. Furthermore, to the extent that cigar products and cigar advertising differ from that of other tobacco products, that difference should inform the inquiry into what speech restrictions are necessary. In addition, a retailer in Massachusetts may have no means of communicating to passersby on the street that it sells tobacco products because alternative forms of advertisement, like newspapers, do not allow that retailer to propose an instant transaction in the way that onsite advertising does. The ban on any indoor advertising that is visible from the outside also presents problems in establishments like convenience stores, which have unique security concerns that counsel in favor of full visibility of the store from the outside. It is these sorts of considerations that the Attorney General failed to incorporate into the regulatory scheme. We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State's substantial interest in preventing underage tobacco use. Justice Stevens urges that the Court remand the case for further development of the factual record. Post, at 12-14. We believe that a remand is inappropriate in this case because the State had ample opportunity to develop a record with respect to tailoring (as it had to justify its decision to regulate advertising), and additional evidence would not alter the nature of the scheme before the Court. See Greater New Orleans, 527 U. S., at 189, n. 6. A careful calculation of the costs of a speech regulation does not mean that a State must demonstrate that there is no incursion on legitimate speech interests, but a speech regulation cannot unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products. After reviewing the outdoor advertising regulations, we find the calculation in this case insufficient for purposes of the First Amendment.C Massachusetts has also restricted indoor, point-of-sale advertising for smokeless tobacco and cigars. Advertising cannot be "placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of" any school or playground. 940 Code of Mass. Regs. §§21.04(5)(b), 22.06(5)(b) (2000). The District Court invalidated these provisions, concluding that the Attorney General had not provided a sufficient basis for regulating indoor advertising. 84 F. Supp. 2d, at 192-193, 195. The Court of Appeals reversed. 218 F. 3d, at 50-51. The court explained: "We do have some misgivings about the effectiveness of a restriction that is based on the assumption that minors under five feet tall will not, or will less frequently, raise their view above eye-level, but we find that such [a] determination falls within that range of reasonableness in which the Attorney General is best suited to pass judgment." Id., at 51. We conclude that the point-of-sale advertising regulations fail both the third and fourth steps of the Central Hudson analysis. A regulation cannot be sustained if it " `provides only ineffective or remote support for the government's purpose,' " Edenfield, 507 U. S., at 770 (quoting Central Hudson, 447 U. S., at 564), or if there is "little chance" that the restriction will advance the State's goal, Greater New Orleans, supra, at 193 (internal quotation marks omitted). As outlined above, the State's goal is to prevent minors from using tobacco products and to curb demand for that activity by limiting youth exposure to advertising. The 5 foot rule does not seem to advance that goal. Not all children are less than 5 feet tall, and those who are certainly have the ability to look up and take in their surroundings. By contrast to Justice Stevens, post, at 16-17, we do not believe this regulation can be construed as a mere regulation of conduct under United States v. O'Brien, 391 U. S. 367 (1968). To qualify as a regulation of communicative action governed by the scrutiny outlined in O'Brien, the State's regulation must be unrelated to expression. Texas v. Johnson, 491 U. S. 397, 403 (1989). See also Erie v. Pap's A. M., 529 U. S. 277, 289-296 (2000) (plurality opinion). Here, Massachusetts' height restriction is an attemptto regulate directly the communicative impact of indoor advertising. Massachusetts may wish to target tobacco advertisements and displays that entice children, much like floor-level candy displays in a convenience store, but the blanket height restriction does not constitute a reasonable fit with that goal. The Court of Appeals recognized that the efficacy of the regulation was questionable, but decided that "[i]n any event, the burden on speech imposed by the provision is very limited." 218 F. 3d, at 51. There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification. We conclude that the restriction on the height of indoor advertising is invalid under Central Hudson's third and fourth prongs.D The Attorney General also promulgated a number of regulations that restrict sales practices by cigarette, smokeless tobacco, and cigar manufacturers and retailers. Among other restrictions, the regulations bar the use of self-service displays and require that tobacco products be placed out of the reach of all consumers in a location accessible only to salespersons. 940 Code of Mass. Regs. §§21.04(2)(c)-(d), 22.06(2)(c)-(d) (2000). The cigarette petitioners do not challenge the sales practices regulations on pre-emption grounds. Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, at 5, n. 2. Two of the cigarette petitioners (Brown & Williamson Tobacco Corporation and Lorillard Tobacco Company), petitioner U. S. Smokeless Tobacco Company, and the cigar petitioners challenge the sales practices regulations on First Amendment grounds. The cigar petitioners additionally challenge a provision that prohibits sampling or promotional giveaways of cigars or little cigars. 940 Code of Mass. Regs. §22.06(1)(a). The District Court concluded that these restrictions implicate no cognizable speech interest, 84 F. Supp. 2d, at 195-196, but the Court of Appeals did not fully adopt that reasoning. The Court of Appeals recognized that self-service displays "often do have some communicative commercial function," but noted that the restriction in the regulations "is not on speech, but rather on the physical location of actual tobacco products." 218 F. 3d, at 53. The court reasoned that nothing in the regulations would prevent the display of empty tobacco product containers, so long as no actual tobacco product was displayed, much like movie jackets at a video store. Ibid. With respect to cigar products, the court observed that retailers traditionally allow access to those products, so that the consumer may make a selection on the basis of a number of objective and subjective factors including the aroma and feel of the cigars. Ibid. Even assuming a speech interest, however, the court concluded that the regulations were narrowly tailored to serve the State's substantial interest in preventing access to tobacco products by minors. Id., at 54. The court also noted that the restrictions do not apply to adult-only establishments. Ibid. Petitioners devoted little of their briefing to the sales practices regulations, and our understanding of the regulations is accordingly limited by the parties' submissions. As we read the regulations, they basically require tobacco retailers to place tobacco products behind counters and require customers to have contact with a salesperson before they are able to handle a tobacco product. The cigarette and smokeless tobacco petitioners contend that "the same First Amendment principles that require invalidation of the outdoor and indoor advertising restrictions require invalidation of the display regulations at issue in this case." Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, at 46, n. 7. See also Reply Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 12, n. 7. The cigar petitioners contend that self-service displays for cigars cannot be prohibited because each brand of cigar is unique and customers traditionally have sought to handle and compare cigars at the time of purchase. Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, at 23, n. 9; Reply Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, p. 10, n. 7. We reject these contentions. Assuming that petitioners have a cognizable speech interest in a particular means of displaying their products, cf. Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993) (distribution of a magazine through newsracks), these regulations withstand First Amendment scrutiny. Massachusetts' sales practices provisions regulate conduct that may have a communicative component, but Massachusetts seeks to regulate the placement of tobacco products for reasons unrelated to the communication of ideas. See O'Brien, supra, at 382. See also Pap's A. M., 529 U. S., at 289 (plurality opinion); id., at 310 (Souter, J., concurring in part and dissenting in part); Johnson, 491 U. S., at 403. We conclude that the State has demonstrated a substantial interest in preventing access to tobacco products by minors and has adopted an appropriately narrow means of advancing that interest. See O'Brien, supra, at 382. Unattended displays of tobacco products present an opportunity for access without the proper age verification required by law. Thus, the State prohibits self-service and other displays that would allow an individual to obtain tobacco products without direct contact with a salesperson. It is clear that the regulations leave open ample channels of communication. The regulations do not significantly impede adult access to tobacco products. Moreover, retailers have other means of exercising any cognizable speech interest in the presentation of their products. We presume that vendors may place empty tobacco packaging on open display, and display actual tobacco products so long as that display is only accessible to sales personnel. As for cigars, there is no indication in the regulations that a customer is unable to examine a cigar prior to purchase, so long as that examination takes place through a salesperson. The cigar petitioners also list Massachusetts' prohibition on sampling and free giveaways among the regulations they challenge on First Amendment grounds. See 940 Code of Mass. Regs. §22.06(1)(a) (2000); Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, at 2. At no point in their briefs or at oral argument, however, did the cigar petitioners argue the merits of their First Amendment claim with respect to the sampling and giveaway regulation. We decline to address an issue that was not sufficiently briefed and argued before this Court. See Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 366, n. 10 (1994); Williams v. United States, 503 U. S. 193, 206 (1992); Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 38-40 (1989). We conclude that the sales practices regulations withstand First Amendment scrutiny. The means chosen by the State are narrowly tailored to prevent access to tobacco products by minors, are unrelated to expression, and leave open alternative avenues for vendors to convey information about products and for would-be customers to inspect products before purchase.IV We have observed that "tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States." FDA v. Brown & Williamson Tobacco Corp., 529 U. S., at 161. From a policy perspective, it is understandable for the States to attempt to prevent minors from using tobacco products before they reach an age where they are capable of weighing for themselves the risks and potential benefits of tobacco use, and other adult activities. Federal law, however, places limits on policy choices available to the States. In this case, Congress enacted a comprehensive scheme to address cigarette smoking and health in advertising and pre-empted state regulation of cigarette advertising that attempts to address that same concern, even with respect to youth. The First Amendment also constrains state efforts to limit advertising of tobacco products, because so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information. To the extent that federal law and the First Amendment do not prohibit state action, States and localities remain free to combat the problem of underage tobacco use by appropriate means. The judgment of the United States Court of Appeals for the First Circuit is therefore affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered.LORILLARD TOBACCO COMPANY, et al.,PETITIONERS00-596 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.ALTADIS U. S. A. INC., etc., et al., PETITIONERS00-597 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.on writs of certiorari to the united states court ofappeals for the first circuit[June 28, 2001] Justice Kennedy, with whom Justice Scalia joins, concurring in part and concurring in the judgment. The obvious overbreadth of the outdoor advertising restrictions suffices to invalidate them under the fourth part of the test in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980). As a result, in my view, there is no need to consider whether the restrictions satisfy the third part of the test, a proposition about which there is considerable doubt. Cf. post, at 13-14 (Thomas, J., concurring in part and concurring in judgment). Neither are we required to consider whether Central Hudson should be retained in the face of the substantial objections that can be made to it. See post, at 4-11 (opinion of Thomas, J.). My continuing concerns that the test gives insufficient protection to truthful, nonmisleading commercial speech require me to refrain from expressing agreement with the Court's application of the third part of Central Hudson. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 501-504 (1996) (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.). With the exception of Part III-B-1, then, I join the opinion of the Court.LORILLARD TOBACCO COMPANY, et al.,PETITIONERS00-596 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.ALTADIS U. S. A. INC., etc., et al., PETITIONERS00-597 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.on writs of certiorari to the united states court ofappeals for the first circuit[June 28, 2001] Justice Thomas, concurring in part and concurring in the judgment. I join the opinion of the Court (with the exception of Part III-B-1) because I agree that the Massachusetts cigarette advertising regulations are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U. S. C. §1331 et seq. I also agree with the Court's disposition of the First Amendment challenges to the other regulations at issue here, and I share the Court's view that the regulations fail even the intermediate scrutiny of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557 (1980). At the same time, I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as "commercial." See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (Thomas, J., concurring in part and concurring in judgment). I would subject all of the advertising restrictions to strict scrutiny and would hold that they violate the First Amendment.I At the heart of this litigation is a Massachusetts regulation that imposes a sweeping ban on speech about tobacco products. 940 Code of Mass. Regs. §21.04(5) (2000), which governs cigarettes and smokeless tobacco, and §22.06(5), which governs cigars, prohibit all outdoor advertising, all indoor advertising that can be seen from outdoors, and all point-of-sale advertising (even if not visible from outdoors) that is lower than five feet from the floor.1 These restrictions are superficially limited in their geographic scope: they apply only within 1,000 feet of "any public playground, playground area in a public park, elementary school or secondary school." §21.04(5)(a). But the Court of Appeals acknowledged that the zone of prohibition covers as much as 90 percent of the three largest cities in Massachusetts, Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30, 50 (CA1 2000), so the practical effect is little different from that of a total ban. Cf. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 812 (2000) ("The Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans"). Respondents suggest in passing that the regulations are "zoning-type restrictions" that should receive "the intermediate level of scrutiny traditionally associated with various forms of `time, place, and manner' regulations." Brief for Respondents 31. We have indeed upheld time, place, and manner regulations that prohibited certain kinds of outdoor signs, see, e.g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984), and we have similarly upheld zoning laws that had the effect of restricting certain kinds of sexually explicit expression, see, e.g., Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). But the abiding characteristic of valid time, place, and manner regulations is their content neutrality. See Ward v. Rock Against Racism, 491 U. S. 781, 791-796 (1989). In Vincent the city prohibited all signs on public property, not to suppress the message conveyed by any of the signs, but simply to minimize the esthetic effect of visual clutter. Likewise, the ordinance in Renton was aimed not at expression, but at the "secondary effects" caused by adult businesses. The regulations here are very different. Massachusetts is not concerned with any "secondary effects" of tobacco advertising — it is concerned with the advertising's primary effect, which is to induce those who view the advertisements to purchase and use tobacco products. Cf. Boos v. Barry, 485 U. S. 312, 321 (1988) ("Listeners' reactions to speech are not the type of `secondary effects' we referred to in Renton"). In other words, it seeks to suppress speech about tobacco because it objects to the content of that speech. We have consistently applied strict scrutiny to such content-based regulations of speech. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641-643 (1994).A There was once a time when this Court declined to give any First Amendment protection to commercial speech. In Valentine v. Chrestensen, 316 U. S. 52 (1942), the Court went so far as to say that "the Constitution imposes [no] restraint on government as respects purely commercial advertising." Id., at 54. That position was repudiated in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976), which explained that even speech "which does `no more than propose a commercial transaction' " is protected by the First Amendment. Id., at 762 (quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376, 385 (1973)). Since then, the Court has followed an uncertain course — much of the uncertainty being generated by the malleability of the four-part balancing test of Central Hudson. See 44 Liquormart, 517 U. S., at 520-522 (Thomas, J., concurring in part and concurring injudgment). I have observed previously that there is no "philosophical or historical basis for asserting that `commercial' speech is of `lower value' than `noncommercial' speech." Id., at 522. Indeed, I doubt whether it is even possible to draw a coherent distinction between commercial and noncommercial speech. See id., at 523, n. 4 (citing Kozinski & Banner, Who's Afraid of Commercial Speech, 76 Va. L. Rev. 627 (1990)).2 It should be clear that if these regulations targeted anything other than advertising for commercial products — if, for example, they were directed at billboards promoting political candidates — all would agree that the restrictions should be subjected to strict scrutiny. In my view, an asserted government interest in keeping people ignorant by suppressing expression "is per se illegitimate and can no more justify regulation of `commercial' speech than it can justify regulation of `noncommercial' speech." 517 U. S., at 518 (Thomas, J., concurring in part and concurring in judgment). That is essentially the interest asserted here, and, adhering to the views I expressed in 44 Liquormart, I would subject the Massachusetts regulations to strict scrutiny.B Even if one accepts the premise that commercial speech generally is entitled to a lower level of constitutional protection than are other forms of speech, it does not follow that the regulations here deserve anything less than strict scrutiny. Although we have recognized several categories of speech that normally receive reduced First Amendment protection, or no First Amendment protection at all, we have never held that the government may regulate speech within those categories in any way that it wishes. Rather, we have said "that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content." R. A. V. v. St. Paul, 505 U. S. 377, 383 (1992). Even when speech falls into a category of reduced constitutional protection, the government may not engage in content discrimination for reasons unrelated to those characteristics of the speech that place it within the category. For example, a city may ban obscenity (because obscenity is an unprotected category, see, e.g., Roth v. United States, 354 U. S. 476 (1957)), but it may not ban "only those legally obscene works that contain criticism of the city government." R. A. V., supra, at 384. In explaining the distinction between commercial speech and other forms of speech, we have emphasized that commercial speech is both "more easily verifiable by its disseminator" and less likely to be "chilled by proper regulation." Virginia Bd., 425 U. S., at 772, n. 24. These characteristics led us to conclude that, in the context of commercial speech, it is "less necessary to tolerate inaccurate statements for fear of silencing the speaker," and also that it is more "appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive." Ibid. Whatever the validity of this reasoning, it is limited to the peculiarly commercial harms that commercial speech can threaten — i.e., the risk of deceptive or misleading advertising. As we observed in R. A. V.:"[A] State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection) is in its view greater there. But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion." 505 U. S., at 388-389 (citations omitted). In 44 Liquormart, several Members of the Court said much the same thing:"[W]hen a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands." 517 U. S., at 501 (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.).Whatever power the State may have to regulate commercial speech, it may not use that power to limit the content of commercial speech, as it has done here, "for reasons unrelated to the preservation of a fair bargaining process." Such content-discriminatory regulation — like all other content-based regulation of speech — must be subjected to strict scrutiny.C In an effort to avoid the implications of these basic principles of First Amendment law, respondents make two principal claims. First, they argue that the regulations target deceptive and misleading speech. See Brief for Respondents 33 ("Petitioners' advertising clearly engenders `the potential for deception or confusion' that allows for regulation of commercial speech based on its content" (quoting Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 65 (1983)). Second, they argue that the regulations restrict speech that promotes an illegal transaction — i.e., the sale of tobacco to minors. See Brief for Respondents 15 ("The regulations ... exhibit a close connection to a commercial transaction the State has prohibited"). Neither theory is properly before the Court. For purposes of summary judgment, respondents were willing to assume "that the tobacco advertisements at issue here are truthful, nonmisleading speech about a lawful activity." 218 F. 3d, at 43. Although respondents now claim that they have not conceded this point, see Brief for Respondent 35, n. 17, the fact remains that they did not urge their theories in the lower courts, and in general, we do not consider arguments for affirmance that were not presented below. See, e.g., Glover v. United States, 531 U. S. 198, 205 (2001). These concessions should make this an easy case, one clearly controlled by 44 Liquormart and by Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173 (1999). At all events, even if we were to entertain these arguments, neither is persuasive. Respondents suggest that tobacco advertising is misleading because "its youthful imagery and ... sheer ubiquity" leads children to believe "that tobacco use is desirable and pervasive." Brief for Respondents 33; see also Brief for United States as Amicus Curiae 7 ("[S]o many children lack the maturity in judgment to resist the tobacco industry's appeals to excitement, glamour, and independence"). This justification is belied, however, by the sweeping overinclusivity of the regulations. Massachusetts has done nothing to target its prohibition to advertisements appealing to "excitement, glamour, and independence"; the ban applies with equal force to appeals to torpor, homeliness, and servility. It has not focused on "youthful imagery"; smokers depicted on the sides of buildings may no more play shuffleboard than they may ride skateboards. The regulations even prohibit a store from accurately stating the prices at which cigarettes are sold. Such a display could not possibly be misleading, unless one accepts the State's apparent view that the simple existence of tobacco advertisements misleads people into believing that tobacco use is more pervasive than it actually is. The State misunderstands the purpose of advertising. Promoting a product that is not yet pervasively used (or a cause that is not yet widely supported) is a primary purpose of advertising. Tobacco advertisements would be no more misleading for suggesting pervasive use of tobacco products than are any other advertisements that attempt to expand a market for a product, or to rally support for a political movement. Any inference from the advertisements that businesses would like for tobacco use to be pervasive is entirely reasonable, and advertising that gives rise to that inference is in no way deceptive. The State also contends that tobacco advertisements may be restricted because they propose an illegal sale of tobacco to minors. A direct solicitation of unlawful activity may of course be proscribed, whether or not it is commercial in nature. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). The State's power to punish speech that solicits or incites crime has nothing to do with the commercial character of the speech. After all, it is often the case that solicitation to commit a crime is entirely noncommercial. The harm that the State seeks to prevent is the harm caused by the unlawful activity that is solicited; it is unrelated to the commercial transaction itself. Thus there is no reason to apply anything other than our usual rule for evaluating solicitation and incitement simply because the speech in question happens to be commercial. See Carey v. Population Services Int'l, 431 U. S. 678, 701-702 (1977). Viewed as an effort to proscribe solicitation to unlawful conduct, these regulations clearly fail the Brandenburg test. A State may not "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg, supra, at 447. Even if Massachusetts could prohibit advertisements reading, "Hey kids, buy cigarettes here," these regulations sweep much more broadly than that. They cover "any ... statement or representation ... the purpose or effect of which is to promote the use or sale" of tobacco products, whether or not the statement is directly or indirectly addressed to minors. 940 Code of Mass. Regs. §21.03 (2000). On respondents' theory, all tobacco advertising may be limited because some of its viewers may not legally act on it. It is difficult to see any stopping point to a rule that would allow a State to prohibit all speech in favor of an activity in which it is illegal for minors to engage. Presumably, the State could ban car advertisements in an effort to enforce its restrictions on underage driving. It could regulate advertisements urging people to vote, because children are not permitted to vote. And, although the Solicitor General resisted this implication of her theory, see Tr. of Oral Arg. 55-56, the State could prohibit advertisements for adult businesses, which children are forbidden to patronize. At bottom, respondents' theory rests on the premise that an indirect solicitation is enough to empower the State to regulate speech, and that, as petitioners put it, even an advertisement directed at adults "will give any children who may happen to see it the wrong idea and therefore must be suppressed from public view." Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, p. 36. This view is foreign to the First Amendment. "Every idea is an incitement," Gitlow v. New York, 268 U. S. 652, 673 (1925) (Holmes, J., dissenting), and if speech may be suppressed whenever it might inspire someone to act unlawfully, then there is no limit to the State's censorial power. Cf. American Booksellers Assn., Inc. v. Hudnut, 771 F. 2d 323 (CA7 1985), aff'd, 475 U. S. 1001 (1986). There is a deeper flaw in the State's argument. Even if Massachusetts has a valid interest in regulating speech directed at children — who, it argues, may be more easily misled, and to whom the sale of tobacco products is unlawful — it may not pursue that interest at the expense of the free speech rights of adults. The theory that public debate should be limited in order to protect impressionable children has a long historical pedigree: Socrates was condemned for being "a doer of evil, inasmuch as he corrupts the youth." 1 Dialogues of Plato, Apology 348 (B. Jowett transl., 4th ed. 1953). But the theory has met with a less enthusiastic reception in this Court than it did in the Athenian assembly. In Butler v. Michigan, 352 U. S. 380 (1957), we struck down a statute restricting the sale of materials " `tending to incite minors to violent or depraved or immoral acts.' " Id., at 381 (quoting then Mich. Penal Code §343). The effect of the law, we observed, was "to reduce the adult population of Michigan to reading only what is fit for children." 352 U. S., at 383. As Justice Frankfurter colorfully put it, "Surely, this is to burn the house to roast the pig." Ibid. We have held consistently that speech "cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." Erznoznik v. Jacksonville, 422 U. S. 205, 213-214 (1975); accord, Bolger, 438 U. S. 726 (1978), we upheld the Federal Communications Commission's power to regulate indecent but nonobscene radio broadcasts. But Pacifica relied heavily on what it considered to be the "special justifications for regulation of the broadcast media that are not applicable to other speakers." Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997). It emphasized that radio is "uniquely pervasive" and "uniquely accessible to children, even those too young to read." Pacifica, supra, at 748-749 (emphasis added). Outside of the broadcasting context, we have adhered to the view that "the governmental interest in protecting children from harmful materials" does not "justify an unnecessarily broad suppression of speech addressed to adults." Reno, supra, at 875; see also Playboy Entertainment, 529 U. S., at 814 ("[T]he objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative"). Massachusetts may not avoid the application of strict scrutiny simply because it seeks to protect children.II Under strict scrutiny, the advertising ban may be saved only if it is narrowly tailored to promote a compelling government interest. See, e.g., id., at 813. If that interest could be served by an alternative that is less restrictive of speech, then the State must use that alternative instead. See ibid.; Reno, supra, at 874. Applying this standard, the regulations here must fail.A Massachusetts asserts a compelling interest in reducing tobacco use among minors. Applied to adults, an interest in manipulating market choices by keeping people ignorant would not be legitimate, let alone compelling. See supra, at 5. But assuming that there is a compelling interest in reducing underage smoking, and that the ban on outdoor advertising promotes this interest, I doubt that the same is true of the ban on point-of-sale advertising below five feet. See 940 Code of Mass. Regs. §§21.04(5)(b), 22.06(5)(b) (2000). The Court of Appeals admitted to having "some misgivings about the effectiveness of a restriction that is based on the assumption that minors under five feet tall will not, or will less frequently, raise their view above eye-level," 218 F. 3d, at 51, as well it might have, since respondents have produced no evidence to support this counterintuitive assumption. Obviously even short children can see objects that are taller than they are. Anyway, by the time they are 12½ years old, both the median girl and the median boy are over five feet tall. See U. S. Centers for Disease Control and Prevention, Growth Charts (2000). Thus, there is no reason to believe that this regulation does anything to protect minors from exposure to tobacco advertising.3 Far from serving a compelling interest, the ban on displays below five feet seems to lack even a minimally rational relationship to any conceivable interest. There is also considerable reason to doubt that the restrictions on cigar and smokeless tobacco outdoor advertising promote any state interest. Outdoor advertising for cigars, after all, is virtually nonexistent. Cigar makers use no billboards in Massachusetts, and in fact their nationwide outdoor advertising budget is only about $50,000 per year. See 218 F. 3d, at 49. To the extent outdoor advertising exists, there is no evidence that it is targeted at youth or has a significant effect on youth. The Court of Appeals focused on the State's evidence of a relationship between "tobacco advertising and tobacco use," id., at 48, thus eliding the dearth of evidence showing any relationship between cigar advertising and cigar use by minors. Respondents principally rely on a National Cancer Institute report on cigar smoking, see Brief for Respondents 39, n. 19. But that report contains only the conclusory assertion that cigars are being "heavily promoted in ways likely to influence adolescent use," and it does not even discuss outdoor advertising, instead focusing on "[e]ndorsements by celebrities," "the resurgence of cigar smoking in movies," and "cigar lifestyle magazines such as `Cigar Aficionado.' " National Cancer Institute, Cigars: Health Effects and Trends, Smoking and Tobacco Control Monograph No. 9, pp. 14-15 (1998), Record, Doc. No. 39, Exh. 67. The report candidly acknowledges that "[a]dditional information is needed to better characterize marketing efforts for cigars" and "to learn the extent to which advertising and promotion for cigars ... reaches and affects kids." Id., at 216-217. In other words, respondents have adduced no evidence that a ban on cigar advertising will do anything to promote their asserted interest. Much the same is true of smokeless tobacco. Here respondents place primary reliance on evidence that, in the late 1960's, the U. S. Smokeless Tobacco Company increased its sales through advertising targeted at young males. See Brief for Respondents 39, n. 19. But this does nothing to show that advertising affecting minors is a problem today. The Court invokes the Food and Drug Administration's findings, see ante, at 29-30, but the report it cites based its conclusions on the observed "very large increase in the use of smokeless tobacco products by young people." 60 Fed. Reg. 41318 (1995). This premise is contradicted by one of respondents' own studies, which reports a large, steady decrease in smokeless tobacco use among Massachusetts high school students during the 1990's. See App. 292. This finding casts some doubt on whether the State's interest in additional regulation is truly compelling. More importantly, because cigarette smoking among high school students has not exhibited such a trend, see ibid., it indicates that respondents'effort to aggregate cigarettes and smokeless tobacco is misguided.B In any case, even assuming that the regulations advance a compelling state interest, they must be struck down because they are not narrowly tailored. The Court is correct, see ante, at 32-33, that the arbitrary 1,000-foot radius demonstrates a lack of narrow tailoring, but the problem goes deeper than that. A prohibited zone defined solely by circles drawn around schools and playgrounds is necessarily overinclusive, regardless of the radii of the circles. Consider, for example, a billboard located within 1,000 feet of a school but visible only from an elevated freeway that runs nearby. Such a billboard would not threaten any of the interests respondents assert, but it would be banned anyway, because the regulations take no account of whether the advertisement could even be seen by children. The prohibited zone is even more suspect where, as here, it includes all but 10 percent of the area in the three largest cities in the State. The loose tailoring of the advertising ban is displayed not only in its geographic scope but also in the nature of the advertisements it affects. The regulations define "advertisement" very broadly; the term includes any "written ... statement or representation, made by" a person who sells tobacco products, "the purpose or effect of which is to promote the use or sale of the product." §21.03. Almost everything a business does has the purpose of promoting the sale of its products, so this definition would cover anything a tobacco retailer might say. Some of the prohibited speech would not even be commercial. If a store displayed a sign promoting a candidate for Attorney General who had promised to repeal the tobacco regulations if elected, it probably would be doing so with the long-term purpose of promoting sales, and the display of such a sign would be illegal. Even if the definition of "advertisement" were read more narrowly so as to require a specific reference to tobacco products, it still would have Draconian effects. It would, for example, prohibit a tobacconist from displaying a sign reading "Joe's Cigar Shop." The effect of this rule is not to make cigars impossible to find; retailers are after all allowed to display a 576-square-inch black-and-white sign reading "Tobacco Products Sold Here." §22.06(6). Rather, it is to make individual cigar retailers more difficult to identify by making them change their names. Respondents assert no interest in cigar retailer anonymity, and it is difficult to conceive of any other interest to which this rule could be said to be narrowly tailored. The regulations fail the narrow tailoring inquiry for another, more fundamental reason. In addition to examining a narrower advertising ban, the State should have examined ways of advancing its interest that do not require limiting speech at all. Here, respondents had several alternatives. Most obviously, they could have directly regulated the conduct with which they were concerned. See, e.g., Rubin v. Coors Brewing Co., 514 U. S. 476, 490-491 (1995) (invalidating ban on disclosure of alcohol content on beer labels, in part because the Government could have pursued alternatives such as "directly limiting the alcohol content of beers"); see also 44 Liquormart, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring).III Underlying many of the arguments of respondents and their amici is the idea that tobacco is in some sense sui generis — that it is so special, so unlike any other object of regulation, that application of normal First Amendment principles should be suspended. See, e.g., Brief for Respondents 50 (referring to tobacco use as "one of the State's — and indeed the Nation's — most urgent problems"); Brief for United States as Amicus Curiae 19-20 (cataloging the prevalence and the effects of tobacco use); Brief for American Medical Association et al. as Amici Curiae 24 (advocating "the authority of governments to protect children from uniquely dangerous messages"). Smoking poses serious health risks, and advertising may induce children (who lack the judgment to make an intelligent decision about whether to smoke) to begin smoking, which can lead to addiction. The State's assessment of the urgency of the problem posed by tobacco is a policy judgment, and it is not this Court's place to second-guess it. Nevertheless, it seems appropriate to point out that to uphold the Massachusetts tobacco regulations would be to accept a line of reasoning that would permit restrictions on advertising for a host of other products. Tobacco use is, we are told, "the single leading cause of preventable death in the United States." Brief for United States as Amicus Curiae 19. The second largest contributor to mortality rates in the United States is obesity. Koplan & Dietz, Caloric Imbalance and Public Health Policy, 282 JAMA 1579 (1999). It is associated with increased incidence of diabetes, hypertension, and coronary artery disease, ibid., and it represents a public health problem that is rapidly growing worse. See Mokdad et al., The Spread of the Obesity Epidemic in the United States, 1991-1998, 282 JAMA 1519 (1999). Although the growth of obesity over the last few decades has had many causes, a significant factor has been the increased availability of large quantities of high-calorie, high-fat foods. See Hill, Environmental Contributions to the Obesity Epidemic, 280 Science 1371 (1998). Such foods, of course, have been aggressively marketed and promoted by fast food companies. See Nestle & Jacobson, Halting the Obesity Epidemic, U. S. Dept. of Health and Human Services, 115 Public Health Reports 12, 18 (2000). Respondents say that tobacco companies are covertly targeting children in their advertising. Fast food companies do so openly. See, e.g., Kramer, McD's Steals Another Toy from BK, Advertising Age, Nov. 15, 1999, p. 1 (describing a McDonald's promotional campaign); Lucas, BK Takes Choice Message to Kids, Adweek, June 29, 1998, p. 4 (describing a Burger King promotional campaign). Moreover, there is considerable evidence that they have been successful in changing children's eating behavior. See Borzekowski & Robinson, The 30-Second Effect, 101 J. Am. Dietetic Assn. 42 (2001); Taras, Sallis, Patterson, Nader, & Nelson, Television's Influence on Children's Diet and Physical Activity, 10 J. Dev. & Behav. Pediatrics 176 (1989). The effect of advertising on children's eating habits is significant for two reasons. First, childhood obesity is a serious health problem in its own right. Troiano & Flegal, Overweight Children and Adolescents, 101 Pediatrics 497 (1998). Second, eating preferences formed in childhood tend to persist in adulthood. Birch & Fisher, Development of Eating Behaviors Among Children and Adolescents, 101 Pediatrics 539 (1998). So even though fast food is not addictive in the same way tobacco is, children's exposure to fast food advertising can have deleterious consequences that are difficult to reverse. To take another example, the third largest cause of preventable deaths in the United States is alcohol. McGinnis & Foege, Actual Causes of Death in the United States, 270 JAMA 2207, 2208 (1993). Alcohol use is associated with tens of thousands of deaths each year from cancers and digestive diseases. Id., at 2208-2209. And the victims of alcohol use are not limited to those who drink alcohol. In 1996, over 17,000 people were killed, and over 321,000 people were injured, in alcohol-related car accidents. U. S. Dept. of Justice, Alcohol and Crime 13 (1998). Each year, alcohol is involved in several million violent crimes, including almost 200,000 sexual assaults. Id., at 3-4. Although every State prohibits the sale of alcohol to those under age 21, much alcohol advertising is viewed by children. Federal Trade Commission, J. Evans & R. Kelly, Self-Regulation in the Alcohol Industry (Sept. 1999); Grube & Wallack, Television Beer Advertising and Drinking Knowledge, Beliefs, and Intentions among Schoolchildren, 84 Am. J. Pub. Health 254 (1994). Not surprisingly, there is considerable evidence that exposure to alcohol advertising is associated with underage drinking. See Atkin, Survey and Experimental Research on Effects of Alcohol Advertising, in The Effects of the Mass Media on the Use and Abuse of Alcohol 39 (S. Martin ed. 1995); Madden & Grube, The Frequency and Nature of Alcohol and Tobacco Advertising in Televised Sports, 1990 through 1992, 84 Am. J. Pub. Health 297 (1994). Like underage tobacco use, underage drinking has effects that cannot be undone later in life. Those who begin drinking early are much more likely to become dependent on alcohol. Indeed, the probability of lifetime alcohol dependence decreases approximately 14 percent with each additional year of age at which alcohol is first used. Grant & Dawson, Age at Onset of Alcohol Use and its Association with DSM-IV Alcohol Abuse and Dependence, 9 J. Substance Abuse 103, 108 (1997). And obviously the effects of underage drinking are irreversible for the nearly 1,700 Americans killed each year by teenage drunk drivers. See National Highway Traffic Safety Administration, 1998 Youth Fatal Crash and Alcohol Facts. Respondents have identified no principle of law or logic that would preclude the imposition of restrictions on fast food and alcohol advertising similar to those they seek to impose on tobacco advertising. Cf. Tr. of Oral Arg. 56-57. In effect, they seek a "vice" exception to the First Amendment. No such exception exists. See 44 Liquormart, 517 U. S., at 513-514 (opinion of Stevens, J., joined by Kennedy, Thomas, and Ginsburg, JJ.). If it did, it would have almost no limit, for "any product that poses some threat to public health or public morals might reasonably be characterized by a state legislature as relating to `vice activity.' " Id., at 514. That is why "a `vice' label that is unaccompanied by a corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity." Ibid. No legislature has ever sought to restrict speech about an activity it regarded as harmless and inoffensive. Calls for limits on expression always are made when the specter of some threatened harm is looming. The identity of the harm may vary. People will be inspired by totalitarian dogmas and subvert the Republic. They will be inflamed by racial demagoguery and embrace hatred and bigotry. Or they will be enticed by cigarette advertisements and choose to smoke, risking disease. It is therefore no answer for the State to say that the makers of cigarettes are doing harm: perhaps they are. But in that respect they are no different from the purveyors of other harmful products, or the advocates of harmful ideas. When the State seeks to silence them, they are all entitled to the protection of the First Amendment.LORILLARD TOBACCO COMPANY, et al.,PETITIONERS00-596 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.ALTADIS U. S. A. INC., etc., et al., PETITIONERS00-597 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.on writs of certiorari to the united states court ofappeals for the first circuit[June 28, 2001] Justice Souter, concurring in part and dissenting in part. I join Parts I, II-C, II-D, III-A, III-B-1, III-C, andIII-D of the Court's opinion. I join Part I of the opinion of Justice Stevens concurring in the judgment in partand dissenting in part. I respectfully dissent from Part III-B-2 of the opinion of the Court, and like Justice Stevens would remand for trial on the constitutionality of the 1,000-foot limit.LORILLARD TOBACCO COMPANY, et al.,PETITIONERS00-596 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.ALTADIS U. S. A. INC., etc., et al., PETITIONERS00-597 v.THOMAS F. REILLY, ATTORNEY GENERAL OFMASSACHUSETTS, et al.on writs of certiorari to the united states court ofappeals for the first circuit[June 28, 2001] Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, and with whom Justice Souter joins as to Part I, concurring in part, concurring in the judgment in part, and dissenting in part. This suit presents two separate sets of issues. The first — involving preemption — is straightforward. The second — involving the First Amendment — is more complex. Because I strongly disagree with the Court's conclusion that the Federal Cigarette Labeling and Advertising Act of 1965 (FCLAA or Act), 15 U. S. C. §1331 et seq. as amended, precludes States and localities from regulating the location of cigarette advertising, I dissent from Parts II-A and II-B of the Court's opinion. On the First Amendment questions, I agree with the Court both that the outdoor advertising restrictions imposed by Massachusetts serve legitimate and important state interests and that the record does not indicate that the measures were properly tailored to serve those interests. Because the present record does not enable us to adjudicate the merits of those claims on summary judgment, I would vacate the decision upholding those restrictions and remand for trial on the constitutionality of the outdoor advertising regulations. Finally, because I do not believe that either the point-of-sale advertising restrictions or the sales practice restrictions implicate significant First Amendment concerns, I would uphold them in their entirety.I As the majority acknowledges, ante, at 11, under prevailing principles, any examination of the scope of a preemption provision must " `start with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.' " Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)); see also, e.g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997); Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996). As the regulations at issue in this suit implicate two powers that lie at the heart of the States' traditional police power — the power to regulate land usage and the power to protect the health and safety of minors — our precedents require that the Court construe the preemption provision "narrow[ly]." Id., at 485; see also Cippolone, 505 U. S., at 518. If Congress' intent to preempt a particular category of regulation is ambiguous, such regulations are not preempted.1 The text of the preemption provision must be viewed in context, with proper attention paid to the history, structure, and purpose of the regulatory scheme in which it appears. See, e.g., Medtronic, 514 U. S. 645, 655-656 (1995); Cippolone, 505 U. S., at 513-515, 519-520, 529, 530, n.27; accord, ante, at 11-12.2 An assessment of the scope of a preemption provision must give effect to a "reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law." Medtronic, 518 U. S., at 486. This task, properly performed, leads inexorably to the conclusion that Congress did not intend to preempt state and local regulations of the location of cigarette advertising when it adopted the provision at issue in this suit. In both 1965 and 1969, Congress made clear the purposes of its regulatory endeavor, explaining with precision the federal policies motivating its actions. According to the acts, Congress adopted a "comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health," for two reasons: (1) to inform the public that smoking may be hazardous to health and (2) to ensure that commerce and the interstate economy not be "impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health." 15 U. S. C. §1331. In order to serve the second purpose it was necessary to preempt state regulation of the content of both cigarette labels and cigarette advertising. If one State required the inclusion of a particular warning on the package of cigarettes while another State demanded a different formulation, cigarette manufacturers would have been forced into the difficult and costly practice of producing different packaging for use in different States. To foreclose the waste of resources that would be entailed by such a patchwork regulatory system, Congress expressly precluded other regulators from requiring the placement on cigarette packaging of any "statement relating to smoking and health." §1334(a). Similar concerns applied to cigarette advertising. If different regulatory bodies required that different warnings or statements be used when cigarette manufacturers advertised their products, the text and layout of a company's ads would have had to differ from locale to locale. The resulting costs would have come with little or no health benefit. Moreover, given the nature of publishing, it might well have been the case that cigarette companies would not have been able to advertise in national publications without violating the laws of some jurisdictions. In response to these concerns, Congress adopted a parallel provision preempting state and local regulations requiring inclusion in cigarette advertising of any "statement relating to smoking and health." §1334(b) (1970 ed.) (amended 1970). There was, however, no need to interfere with state or local zoning laws or other regulations prescribing limitations on the location of signs or billboards. Laws prohibiting a cigarette company from hanging a billboard near a school in Boston in no way conflict with laws permitting the hanging of such a billboard in other jurisdictions. Nor would such laws even impose a significant administrative burden on would-be advertisers, as the great majority of localities impose general restrictions on signage, thus requiring advertisers to examine local law before posting signs whether or not cigarette-specific laws are preempted. See Greater N. Y. Metroploitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 109 (CA2 1999) ("Divergent local zoning restrictions on the location of sign advertising are a commonplace feature of the national landscape and cigarette advertisers have always been bound to observe them"). Hence, it is unsurprising that Congress did not include any provision in the 1965 Act preempting location restrictions. The Public Health Cigarette Smoking Act of 1969 (1969 Act), §2, 84 Stat. 87, made two important changes in the preemption provision. First, it limited the applicability of the advertising prong to States and localities, paving the way for further federal regulation of cigarette advertising. FCLAA., §4. Second, it expanded the scope of the advertising preemption provision. Where previously States were prohibited from requiring particular statements in cigarette advertising based on health concerns, they would henceforth be prohibited from imposing any "requirement or prohibition based on smoking and health ... with respect to the advertising or promotion" of cigarettes. §5(b), 15 U. S. C. §1334(b).3 Ripped from its context, this provision could theoretically be read as a breathtaking expansion of the limitations imposed by the 1965 Act. However, both our precedents and common sense require us to read statutory provisions — and, in particular, preemption clauses — in the context of both their neighboring provisions and of the history and purpose of the statutory scheme. See supra, at 3. When so viewed, it is quite clear that the 1969 amendments were intended to expand the provision to capture a narrow set of content regulations that would have escaped preemption under the prior provision, not to fundamentally reorder the division of regulatory authority between the Federal and State Governments. All signs point inescapably to the conclusion that Congress only intended to preempt content regulations in the 1969 Act. It is of crucial importance that, in making modifications of the preemption provision, Congress did not alter the statement laying out the federal policies the provision was intended to serve. See 15 U. S. C. §1331. To this day, the stated federal policies in this area are (1) to inform the public of the dangers of cigarette smoking and (2) to protect the cigarette companies from the burdens of confusing and contradictory state regulations of their labels and advertisements. See ibid. The retention of this provision unchanged is strong evidence that Congress' only intention in expanding the preemption clause was to capture forms of content regulation that had fallen through the cracks of the prior provision — for example, state laws prohibiting cigarette manufacturers from making particular claims in their advertising or requiring them to utilize specified layouts or include particular graphics in their marketing.4 The legislative history of the provision also supports such a reading. The record does not contain any evidence that Congress intended to expand the scope of preemption beyond content restrictions.5 To the contrary, the Senate Report makes it clear that the changes merely "clarified" the scope of the original provision. S. Rep. No. 91-566, p. 12 (1969). Even as amended, Congress perceived the provision as "narrowly phrased" and emphasized that its purpose is to "avoid the chaos created by a multiplicity of conflicting regulations." Ibid. According to the Senate Report, the changes "in no way affect the power of any state or political subdivision of any state with respect to ... the sale of cigarettes to minors ...or similar police regulations." Ibid. In analyzing the scope of the preemption provision, the Courts of Appeals have almost uniformly concluded that state and local laws regulating the location of billboards and signs are not preempted. See Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30, 39-41 (CA1 2000) (case below); Greater New York Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633, 636-640 (CA7 1999); Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F. 3d 1318 (CA4 1995); contra Lindsey v. Tacoma-Pierce County Health Dept, 195 F. 3d 1065 (CA9 1999). The decisions in those cases relied heavily upon our discussion of the same preemption provision in Cipollone, 505 U. S., at 515-524. In Cipollone, while the Members of the Court expressed three different opinions concerning the scope of preemption mandated by the provision, those differences related entirely to which, if any, of the plaintiff's claims based on the content of the defendants' advertising were preempted by §5. Nary a word in any of the three Cipollone opinions supports the thesis that §5 should be interpreted to preempt state regulation of the location of signs advertising cigarettes. Indeed, seven of the nine Justices subscribed to opinions that explicitly tethered the scope of the preemption provision to Congress' concern with "diverse, nonuniform, and confusing cigarette labeling and advertising regulations." Id., at 519; id., at 534, 541 (opinion of Blackmun, J., joined by Kennedy, and Souter, JJ.). I am firmly convinced that, when Congress amended the preemption provision in 1969, it did not intend to expand the application of the provision beyond content regulations.6 I, therefore, find the conclusion inescapable that the zoning regulation at issue in this suit is not a "requirement or prohibition ... with respect to ... advertising" within the meaning of the 1969 Act.7 Even if I were not so convinced, however, I would still dissent from the Court's conclusion with regard to preemption, because the provision is, at the very least, ambiguous. The historical record simply does not reflect that it was Congress' " `clear and manifest purpose,' " Id., at 516, to preempt attempts by States to utilize their traditional zoning authority to protect the health and welfare of minors. Absent such a manifest purpose, Massachusetts and its sister States retain their traditional police powers.8II On the First Amendment issues raised by petitioners, my disagreements with the majority are less significant. I would, however, reach different dispositions as to the 1,000-foot rule and the height restrictions for indoor advertising, and my evaluation of the sales practice restrictions differs from the Court's.The 1,000-Foot Rule I am in complete accord with the Court's analysis of the importance of the interests served by the advertising restrictions. As the Court lucidly explains, few interests are more "compelling," ante, at 34, than ensuring that minors do not become addicted to a dangerous drug before they are able to make a mature and informed decision as to the health risks associated with that substance. Unlike other products sold for human consumption, tobacco products are addictive and ultimately lethal for many long-term users. When that interest is combined with the State's concomitant concern for the effective enforcement of its laws regarding the sale of tobacco to minors, it becomes clear that Massachusetts' regulations serve interests of the highest order and are, therefore, immune from any ends-based challenge, whatever level of scrutiny one chooses to employ. Nevertheless, noble ends do not save a speech-restricting statute whose means are poorly tailored. Such statutes may be invalid for two different reasons. First, the means chosen may be insufficiently related to the ends they purportedly serve. See, e.g., Rubin v. Coors Brewing Co., 514 U. S. 476 (1995) (striking a statute prohibiting beer labels from displaying alcohol content because the provision did not significantly forward the government's interest in the health, safety, and welfare of its citizens). Alternatively, the statute may be so broadly drawn that, while effectively achieving its ends, it unduly restricts communications that are unrelated to its policy aims. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 812 (2000) (striking a statute intended to protect children from indecent television broadcasts, in part because it constituted "a significant restriction of communication between speakers and willing adult listeners"). The second difficulty is most frequently encountered when government adopts measures for the protection of children that impose substantial restrictions on the ability of adults to communicate with one another. See, e.g., Playboy Entertainment Group, Inc., supra; Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). To my mind, the 1,000-foot rule does not present a tailoring problem of the first type. For reasons cogently explained in our prior opinions and in the opinion of the Court, we may fairly assume that advertising stimulates consumption and, therefore, that regulations limiting advertising will facilitate efforts to stem consumption.9 See, e.g., Rubin, 509 U. S. 418, 434 (1993); ante, at 27. Furthermore, if the government's intention is to limit consumption by a particular segment of the community — in this case, minors — it is appropriate, indeed necessary, to tailor advertising restrictions to the areas where that segment of the community congregates — in this case, the area surrounding schools and playgrounds. However, I share the majority's concern as to whether the 1,000-foot rule unduly restricts the ability of cigarette manufacturers to convey lawful information to adult consumers. This, of course, is a question of line-drawing. While a ban on all communications about a given subject would be the most effective way to prevent children from exposure to such material, the state cannot by fiat reduce the level of discourse to that which is "fit for children." Butler v. Michigan, 352 U. S. 380, 383 (1957); cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74 (1983) ("The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox"). On the other hand, efforts to protect children from exposure to harmful material will undoubtedly have some spillover effect on the free speech rights of adults. See, e.g., FCC v. Pacifica Foundation, 438 U. S. 726, 749-750, and n. 28 (1978). Finding the appropriate balance is no easy matter. Though many factors plausibly enter the equation when calculating whether a child-directed location restriction goes too far in regulating adult speech, one crucial question is whether the regulatory scheme leaves available sufficient "alternative avenues of communication." Renton v. Playtime Theatres, Inc., 475 U. S. 41, 50 (1986); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 819 (1984) (Brennan, J., dissenting); accord ante, at 33. Because I do not think the record contains sufficient information to enable us to answer that question, I would vacate the award of summary judgment upholding the 1,000-foot rule and remand for trial on that issue. Therefore, while I agree with the majority that the Court of Appeals did not sufficiently consider the implications of the 1,000-foot rule for the lawful communication of adults, see ante, at 31-36, I dissent from the disposition reflected in Part III-B-2 of the Court's opinion. There is no doubt that the 1,000-foot rule prohibits cigarette advertising in a substantial portion of Massachusetts' largest cities. Even on that question, however, the parties remain in dispute as to the percentage of these urban areas that is actually off limits to tobacco advertising. See ante, at 32. Moreover, the record is entirely silent on the impact of the regulation in other portions of the Commonwealth. The dearth of reliable statistical information as to the scope of the ban is problematic. More importantly, the Court lacks sufficient qualitative information as to the areas where cigarette advertising is prohibited and those where it is permitted. The fact that 80% or 90% of an urban area is unavailable to tobacco advertisements may be constitutionally irrelevant if the available areas are so heavily trafficked or so central to the city's cultural life that they provide a sufficient forum for the propagation of a manufacturer's message. One electric sign in Times Square or at the foot of the Golden Gate Bridge may be seen by more potential customers than a hundred signs dispersed in residential neighborhoods. Finally, the Court lacks information as to other avenues of communication available to cigarette manufacturers and retailers. For example, depending on the answers to empirical questions on which we lack data, the ubiquity of print advertisements hawking particular brands of cigarettes might suffice to inform adult consumers of the special advantages of the respective brands. Similarly, print advertisements, circulars mailed to people's homes, word of mouth, and general information may or may not be sufficient to imbue the adult population with the knowledge that particular stores, chains of stores, or types of stores sell tobacco products.10 In granting summary judgment for the respondents, the District Judge treated the First Amendment issues in this suit as pure questions of law and stated that "there are no material facts in dispute concerning these issues." 84 F. Supp. 2d, at 183. With due respect, I disagree. While the ultimate question before us is one of law, the answer to that question turns on complicated factual questions relating to the practical effects of the regulations. As the record does not reveal the answer to these disputed questions of fact, the court should have denied summary judgment to both parties and allowed the parties to present further evidence. I note, moreover, that the alleged "overinclusivity" of the advertising regulations, ante, at 8, (Thomas, J., concurring in part and concurring in judgment), while relevant to whether the regulations are narrowly tailored, does not "beli[e]" the claim that tobacco advertising imagery misleads children into believing that smoking is healthy, glamorous, or sophisticated, ibid. See Brief of Amicus Curiae American Legacy Foundation in Support of Respondent 4-5 and nn. 9, 10; Brief of Amicus Curiae City of Los Angeles in Support of Respondent 4 (documenting charge that advertisements for cigarettes and smokeless tobacco target underage smokers). For purposes of summary judgment, the State conceded that the tobacco companies' advertising concerns lawful activity and is not misleading. Under the Court's disposition of the case today, the State remains free to proffer evidence that the advertising is in fact misleading. See Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) ("[M]uch commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem"). I would vacate the grant of summary judgment to respondents on this issue and remand for further proceedings.The Sales Practice and Indoor Advertising Restrictions After addressing petitioners' challenge to the sales practice restrictions imposed by the Massachusetts statute, the Court concluded that these provisions did not violate the First Amendment. I concur in that judgment, but write separately on this issue to make two brief points. First, I agree with the District Court and the Court of Appeals that the sales practice restrictions are best analyzed as regulating conduct, not speech. See 218 F. 3d, at 53. While the decision how to display one's products no doubt serves a marginal communicative function, the same can be said of virtually any human activity performed with the hope or intention of evoking the interest of others. This Court has long recognized the need to differentiate between legislation that targets expression and legislation that targets conduct for legitimate non-speech-related reasons but imposes an incidental burden on expression. See, e.g., United States v. O'Brien, 391 U. S. 367 (1968). However difficult that line may be to draw, it seems clear to me that laws requiring that stores maintain items behind counters and prohibiting self-service displays fall squarely on the conduct side of the line. Restrictions as to the accessibility of dangerous or legally-restricted products are a common feature of the regulatory regime governing American retail stores. I see nothing the least bit constitutionally problematic in requiring individuals to ask for the assistance of a salesclerk in order to examine or purchase a handgun, a bottle of penicillin, or a package of cigarettes. Second, though I admit the question is closer, I would, for similar reasons, uphold the regulation limiting tobacco advertising in certain retail establishments to the space five feet or more above the floor.11 When viewed in isolation, this provision appears to target speech. Further, to the extent that it does target speech it may well run into constitutional problems, as the connection between the ends the statute purports to serve and the means it has chosen are dubious. Nonetheless, I am ultimately persuaded that the provision is unobjectionable because it is little more than an adjunct to the other sales practice restrictions. As the Commonwealth of Massachusetts can properly legislate the placement of products and the nature of displays in its convenience stores, I would not draw a distinction between such restrictions and height restrictions on related product advertising. I would accord the Commonwealth some latitude in imposing restrictions that can have only the slightest impact on the ability of adults to purchase a poisonous product and may save some children from taking the first step on the road to addiction.III Because I strongly disagree with the Court's conclusion on the preemption issue, I dissent from Parts II-A and II-B of its opinion. Though I agree with much of what the Court has to say about the First Amendment, I ultimately disagree with its disposition or its reasoning on each of the regulations before us.12FOOTNOTESFootnote * Together with No. 00-597, Altadis U. S. A. Inc., as Successor to Consolidated Cigar Corp. and Havatampa, Inc., et al. v. Reilly, Attorney General of Massachusetts, et al., also on certiorari to the same court.FOOTNOTESFootnote ** The Senate Report explained that the pre-emption provision "would in no way affect the power of any State or political subdivision of any State with respect to the taxation or the sale of cigarettes to minors, or the prohibition of smoking in public buildings, or similar police regulations. It is limited entirely to State or local requirements or prohibitions in the advertising of cigarettes." S. Rep. No. 91-566, p. 12 (1969).FOOTNOTESFootnote 1 Other regulations prohibit the sale of tobacco products "in any manner other than in a direct, face-to-face exchange," forbid self-service displays, and require that tobacco products be accessible only to store personnel. See §§21.04(2)(a), (c)-(d), §§22.06(2)(a), (c)-(d). In addition, they prohibit sampling and promotional giveaways. See §§21.04(1), 22.06(1). I agree with the Court, see ante, at 38-41, that these regulations, which govern conduct rather than expression, should be upheld under the test of United States v. O'Brien, 391 U. S. 367 (1968).Footnote 2 Tobacco advertising provides a good illustration. The sale of tobacco products is the subject of considerable political controversy, and not surprisingly, some tobacco advertisements both promote a product and take a stand in this political debate. See Brief for National Association of Convenience Stores as Amicus Curiae 20-22. A recent cigarette advertisement, for example, displayed a brand logo next to text reading, "Why do politicians smoke cigars while taxing cigarettes?" App. to Brief for National Association of Convenience Stores as Amicus Curiae 2a.Footnote 3 This is not to say that the regulation does nothing at all. As the Court points out, see ante, at 35, security concerns require that convenience stores be designed so that the interior of the store is visible from the street. See also Occupational Safety and Health Administration, Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments 6 (1998) ("Shelves should be low enough to assure good visibility throughout the store"). The §21.04(5)(b) ban on displays below five feet and the §21.04(5)(a) ban on displays visible from outside the store, combined with these security concerns, would prevent many convenience stores from displaying any tobacco products at all. Thus, despite the State's disclaimers, see Brief for Respondents 30 ("The State, quite clearly, is not trying to suppress altogether the communication of product information to interested consumers"), the restrictions effectively produce a total ban.FOOTNOTESFootnote 1 See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 146-147 (1963) ("[W]e are not to conclude that Congress legislated the ouster of this [state] statute ... in the absence of an unambiguous congressional mandate to that effect"); Cippolone, 505 U. S., at 533 (Blackmun, J., joined by Kennedy and Souter, JJ., concurring in part, concurring in judgment in part, and dissenting in part) ("The principles of federalism and respect for state sovereignty that underlie the Court's reluctance to find pre-emption where Congress has not spoken directly to the issue apply with equal force where Congress has spoken, though ambiguously. In such cases, the question is not whether Congress intended to pre-empt state regulation, but to what extent. We do not, absent unambiguous evidence, infer a scope of pre-emption beyond that which clearly is mandated by Congress' language" (emphasis deleted)).Footnote 2 Cf. Central Hanover Bank & Trust Co. v. Commissioner, 159 F. 2d 167, 169 (CA2 1947) (L. Hand, J.) ("There is no more likely way to misapprehend the meaning of language — be it in a constitution, a statute, a will or a contract — than to read the words literally, forgetting the object which the document as a whole is meant to secure").Footnote 3 In Cipollone v. Liggett Group, Inc., 505 U. S. 504, 521 (1992), we held that one of the consequences of this change in language was that after 1969 the statute preempts some common-law actions.Footnote 4 Because of the nature of magazine publishing and distribution, it is conceivable that a State or locality might cause the kind of regulatory confusion the statute was drafted to prevent by adopting a law prohibiting the advertising of cigarettes in any publication distributed within its boundaries. There is at least a modicum of support for the suggestion that Congress may have intended the preemption of such restrictions. See id., at 515, n. 11 (noting that California was considering such a ban at the time Congress was considering the 1969 Act). However, the concerns posed by the diverse regulation of national publications are not present with regard to the local regulation of the location of signs and billboards.Footnote 5 At one point, the Court briefly argues that it would be wrong to conclude that Congress intended to preclude only content restrictions, because it imposed a location restriction (a ban on television and radio advertising) in another provision of the same bill. See ante, at 18. This argument is something of a non sequitur. The fact that Congress, in adopting a comprehensive legislative package, chose to impose a federal location restriction for a national medium has no bearing on whether, in a separate provision, the Legislature intended to strip States and localities of the authority to impose location restrictions for purely local advertising media.Footnote 6 Petitioners suggest in passing that Massachusetts' regulation amounts to a "near-total ba[n]," Brief for Petitioners Lorillard Tobacco Co. et al. 22, and thus is a de facto regulation of the content of cigarette ads. But we need not consider today the circumstances in which location restrictions approximating a total ban might constitute regulation of content and thus be preempted by the Act, because petitioners have failed to introduce sufficient evidence to create a genuine issue as to that claim. Petitioners introduced maps purporting to show that cigarette advertising is barred in 90.6% of Boston proper, 87.8% of Worcester, and 88.8% of Springfield. See App. 165-167. But the maps do not distinguish between the area restricted due to the regulation at issue here and the area restricted due to pre-existing regulations, such as general zoning requirements applicable to all outdoor advertising. Nor do the maps show the percentage (with respect to either area or population) of the State that is off limits to cigarette advertising; they cover only three cities containing approximately 14% of the State's population. See U. S. Census Bureau, Statistical Abstract of the United States 28, 47, 49 (1999) (providing population figures for 1998). The area in which cigarette advertising is restricted is likely to be considerably less in less densely populated portions of the State. And even on the interpretation of this data most favorable to petitioners, the Massachusetts regulation still permits indoor and outdoor cigarette adver-tising in at least 10% of the geographical area of the State. In short, the regulation here is not the equivalent of a total ban on cigarette advertising.Footnote 7 Hence, while I agree in large part with the substance of the arguments proffered by the respondents and the United States on the preemption issue, I reject their conclusion that the content/location distinction finds expression in the limiting phrase "based on smoking and health." See Brief for Respondent 20; Brief for United States as Amicus Curiae 5; accord Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F. 3d 1318 (CA4 1995). Instead, I would follow the First, Second, and Seventh Circuits in concluding that a statute regulating the location of advertising is not a "requirement or prohibition ... with respect to ... advertising" within the meaning of the 1969 Act. See Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30, 39-41 (CA1 2000) (case below); Greater N.Y. Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633, 636-640 (CA7 1999).Footnote 8 The Court's holding that federal law precludes States and localities from protecting children from dangerous products within 1,000 feet of a school is particularly ironic given the Court's conclusion six years ago that the Federal Government lacks the constitutional authority to impose a similarly-motivated ban. See United States v. Lopez, 514 U. S. 549 (1995). Despite the absence of any identified federal interest in creating "an invisible federal zone extending 1,000 feet beyond the (often irregular) boundaries of the school property," as the majority construes it today, the "statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise," id., at 583 (Kennedy, J., concurring). I wonder why a Court sensitive to federalism concerns would adopt such a strange construction of statutory language whose quite different purpose Congress took pains to explain.Footnote 9 Moreover, even if it were our practice to require a particularized showing of the effects of advertising on consumption, the respondents have met that burden in this suit. See ante, at 27-31 (summarizing the evidence).Footnote 10 As the above observations indicate, the analysis as to whether the 1,000-foot rule impermissibly curtails speech between adults will require a particularized analysis that may well ask slightly different questions — and conceivably could reach different results — with regard to the constitutionality of the restrictions as applied to manufacturers and retailers.Footnote 11 This ban only applies to stores located within 1,000-feet of a school or playground and contains an exception for adult-only establishments. See ante, at 5.Footnote 12 Reflecting my partial agreement with the Court, I join Parts I,II-C, II-D, and III-B-1 and concur in the judgment reflected in Part III-D. |
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