Datasets:

YSFarag

/

SuperScotus

like 0

1995_94-1244

JUSTICE SCALIA delivered the opinion of the Court.In Mitchell v. Forsyth, 472 U. S. 511 (1985), we held that a district court's rejection of a defendant's qualified-immunity defense is a "final decision" subject to immediate appeal under the general appellate jurisdiction statute, 28 U. S. C. § 1291. The question presented in this case is whether a defendant's immediate appeal of an unfavorable qualified-immunity ruling on his motion to dismiss deprives the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment.IIn 1983, South Coast Savings and Loan Association, a new institution, applied to the Federal Home Loan Bank Board (FHLBB or Board) for the approval necessary to obtain account insurance from the Federal Savings and Loan Insurance Corporation (FSLIC).l Under FHLBB regulations, approval of new institutions was to be withheld if their "financial policies or management" were found to be "unsafe" for any of various reasons, including "character of the management." 12 CFR § 571.6(b) (1986). Accordingly, when FHLBB approved South Coast for FSLIC insurance in March 1984, it imposed a number of requirements, including the condition that South Coast "provide for employment of a qualified full-time executive managing officer, subject to approval by the Principal Supervisory Agent"-FHLBB's term for the president of the regional Home Loan Bank when operating in his oversight capacity on behalf of FHLBB. Record, Exh. B, Resolution No. 84-164, , 10(p) (Mar. 29, 1984). The Board's resolution also required that, for a period of three years, any change in South Coast's chief management position be approved by FHLBB. Ibid.1 FHLBB, FSLIC, and the regulatory scheme described in this opinion no longer exist, having been eliminated by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 103 Stat. 183.302Shortly after obtaining FHLBB's conditional approval, South Coast was succeeded in interest by Pioneer Savings and Loan Association, another new institution. Pioneer named respondent Pelletier as its managing officer, subject to FHLBB consent, which Pioneer sought in mid-May 1985. Only a few weeks earlier, however, on April 23, 1985, FHLBB had declared insolvent Beverly Hills Savings and Loan Association, where respondent had at one time held a senior executive position. An inquiry by FSLIC pointed to potential misconduct by high-level management of the failed institution, which ultimately became the subject of an FSLIC lawsuit against several Beverly Hills officers, including respondent.The FSLIC suit had not yet been filed at the time Pioneer sought the Board's consent to hire respondent; but FSLIC's pending investigation into Beverly Hills' collapse caused petitioner Behrens, the FHLBB "Supervisory Agent" then responsible for monitoring Pioneer's operations, to write Pioneer on May 8, 1986, withholding approval and advising that respondent be replaced. On receipt of the letter Pioneer asked respondent to resign and, when he refused, fired him.Three years later, in 1989, respondent brought suit in federal court, naming petitioner as defendant in a complaint that included Bivens damages claims for two alleged constitutional wrongs. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Respondent charged, first, that petitioner's action in writing a letter that had effectively discharged him from his post at Pioneer, in summary fashion and without notice or opportunity to be heard, violated his right to procedural due process. Second, he claimed that he had been deprived of substantive due process by petitioner's alleged interference with his "clearly established and Constitutionally protected property and liberty rights ... to specific employment and to pursue his profession free from undue governmental interference." First Amended Complaint, 38, reprinted in App. 7, 16. The complaint alleged303that petitioner's letter, along with other, continuing efforts to harm respondent's reputation, had cost respondent not only his position at Pioneer, but also his livelihood within the savings and loan industry. The complaint also contained other claims-against petitioner and against the Federal Home Loan Bank of San Francisco (petitioner's immediate employer), FHLBB, and the United States; none of these is relevant to the present appeal.Petitioner filed a motion to dismiss or, in the alternative, for summary judgment. With regard to the Bivens claims, he asserted a statute-of-limitations defense and claimed qualified immunity from suit on the ground that his actions, taken in a governmental capacity, "d[id] not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). The District Court ruled in favor of petitioner on the statute-of-limitations ground and therefore dismissed the procedural due process Bivens claim, and the substantive due process Bivens claim to the extent it related to petitioner's letter and respondent's loss of employment at Pioneer. It refused, however, to dismiss respondent's suit "to the extent [it was] based on other alleged subsequent acts of defendan[t] preventing and continuing to prevent [respondent] from securing employment." Pelletier v. Federal Home Loan Bank of San Francisco, No. CV 89-969 (CD Cal., Oct. 5, 1989), reprinted in App. 27-28. The court also denied petitioner's summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery.Petitioner immediately appealed the District Court's implicit denial of his qualified-immunity defense regarding the remaining Bivens claim. The Court of Appeals entertained the appeal, notwithstanding its interlocutory nature, holding that "a denial of qualified immunity is an appealable 'final' order under the test set forth in Cohen v. Beneficial Indust. Loan Corp., 337 U. S. 541 (1949) ... , regardless of whether that denial takes the form of a refusal to grant a defendant's304motion to dismiss or a denial of summary judgment." Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865, 870 (CA9 1992). It said in dictum, however, that a defendant claiming qualified immunity could not "take advantage of the several opportunities for immediate appeal afforded him by bringing repeated pretrial appeals," and that "[o]ne such interlocutory appeal is all that a government official is entitled to and all that we will entertain." Id., at 870-871. On the merits of the appeal, the court rejected the argument that petitioner enjoyed qualified immunity because he had not violated any "clearly established right." It said that the question whether respondent had a constitutionally protected property interest in his Pioneer employment (subject, as it was, to regulatory approval) was not properly before the court, since the claims relating specifically to his discharge had been dismissed as time barred. Id., at 871-872. (The Court of Appeals noted in dictum, however, id., at 869, n. 6, that the District Court had applied an unduly short limitations period.) With respect to the claimed deprivation of post-Pioneer employment, the court held that the "nebulous theories of conspiracy" set out in respondent's complaint-although "insufficient to survive a motion for summary judgment"-made out a proper Bivens claim. 968 F. 2d, at 872-873.Upon remand, the District Court reversed its earlier statute-of-limitations ruling in light of the Court of Appeals' dictum, and reinstated the claims relating to employment at Pioneer. After discovery, petitioner moved for summary judgment on qualified-immunity grounds, contending that his actions had not violated any "clearly established" right of respondent regarding his employment at Pioneer or elsewhere. The District Court denied the motion with the unadorned statement that "[m]aterial issues of fact remain as to defendant Behrens on the Bivens claim." Pelletier v. Federal Home Loan Bank of San Francisco, No. CV 89-0969 (CD Cal., Sept. 6, 1994), reprinted in App. to Pet. for Cert.3055a. Petitioner filed a notice of appeal, which, on respondent's motion, the District Court certified as frivolous. In an unpublished order, the Ninth Circuit dismissed the appeal "for lack of jurisdiction." Pelletier v. Federal Home Loan Bank of San Francisco, No. 94-56507 (CA9, Nov. 17, 1994), reprinted in App. to Pet. for Cert. la. We granted certiorari, 514 U. S. 1035 (1995).IISection 1291 of Title 28, U. S. C., gives courts of appeals jurisdiction over "all final decisions" of district courts, except those for which appeal is to be had to this Court. The requirement of finality precludes consideration of decisions that are subject to revision, and even of "fully consummated decisions [that] are but steps towards final judgment in which they will merge." Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949). It does not, however, bar review of all prejudgment orders. In Cohen, we described a "small class" of district court decisions that, though short of final judgment, are immediately appealable because they "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Ibid. See also Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U. S. 139, 142-145 (1993) (citing Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978)). The issue in the present case is the extent to which orders denying governmental officers' assertions of qualified immunity come within the Cohen category of appealable decisions.As set forth in Harlow v. Fitzgerald, 457 U. S. 800 (1982), the qualified-immunity defense "shield[s] [government agents] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known," id., at 818 (citing Procunier v. Navarette, 434 U. S.306555,565 (1978)). Harlow adopted this criterion of "objective legal reasonableness," rather than good faith, precisely in order to "permit the defeat of insubstantial claims without resort to trial." 457 U. S., at 819, 813. Unsurprisingly, then, we later found the immunity to be "an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal [immunity] question." Mitchell v. Forsyth, 472 U. S., at 526. And, as with district-court rejection of claims to other such entitlements distinct from the merits, see, e. g., Puerto Rico Aqueduct, supra, at 145-146 (Eleventh Amendment immunity); Abney v. United States, 431 U. S. 651, 662 (1977) (right not to be subjected to double jeopardy), we held that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U. S. C. § 1291 notwithstanding the absence of a final judgment." Mitchell, supra, at 530. See also Johnson v. Jones, 515 U. S. 304, 311-312 (1995).While Mitchell did not say that a defendant could appeal from denial of a qualified-immunity defense more than once,2 it clearly contemplated that he could raise the defense at successive stages:"Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. Even if the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law, the defendant is entitled to summary judgment if discovery fails to uncover evi-2 Interestingly, however, Mitchell itself dealt with the second of two interlocutory appeals on immunity claims. See 472 U. S., at 515-519. Neither the Court of Appeals nor this Court assigned any significance to the successive aspect of the second appeal.307dence sufficient to create a genuine issue as to whether the defendant in fact committed those acts." 472 U. S., at 526 (citation omitted).Thus, Mitchell clearly establishes that an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a "final" judgment subject to immediate appeal. Since an unsuccessful appeal from a denial of dismissal cannot possibly render the later denial of a motion for summary judgment any less "final," it follows that petitioner's appeal falls within § 1291 and dismissal was improper.Indeed, it is easier to argue that the denial of summary judgment-the order sought to be appealed here-is the more "final" of the two orders. That is the reasoning the First Circuit adopted in holding that denial of a motion to dismiss on absolute-immunity grounds was not "final" where the defendant had stated that, if unsuccessful, he would later seek summary judgment on qualified-immunity grounds:"Since the district court has not yet determined whether [the defendant] has qualified immunity, and that he will have to stand trial, its decision is not an appealable collateral order." Kaiter v. Boxford, 836 F.2d 704, 707 (1988). The problem with this approach, however, is that it would logically bar any appeal at the motion-to-dismiss stage where there is a possibility of presenting an immunity defense on summary judgment; that possibility would cause the motion-to-dismiss decision to be not "final" as to the defendant's right not to stand trial. The First Circuit sought to avoid this difficulty by saying that the defendant could render the motion-todismiss denial final by waiving his right to appeal the summary judgment denial. See id., at 708. But quite obviously, eliminating the ability to appeal the second order does not eliminate the possibility that the second order will vindicate the defendant's right not to stand trial, and therefore308does not eliminate the supposed reason for declaring the first order nonfinal.The source of the First Circuit's confusion was its mistaken conception of the scope of protection afforded by qualified immunity. Harlow and Mitchell make clear that the defense is meant to give government officials a right, not merely to avoid "standing trial," but also to avoid the burdens of "such pretrial matters as discovery ... , as '[i]nquiries of this kind can be peculiarly disruptive of effective government.'" Mitchell, supra, at 526 (emphasis added) (quoting from Harlow, supra, at 817). Whether or not a later summary judgment motion is granted, denial of a motion to dismiss is conclusive as to this right. We would have thought that these and other statements from Mitchell and Harlow had settled the point, questioned by JUSTICE BREYER, see post, at 317, that this right is important enough to support an immediate appeal. If it were not, however, the consequence would be, not that only one pretrial appeal could be had in a given case, as JUSTICE BREYER proposes, but rather, that there could be no immediate appeal from denial of a motion to dismiss but only from denial of summary judgment. That conclusion is foreclosed by Mitchell, which unmistakably envisioned immediate appeal of "[t]he denial of a defendant's motion for dismissal or summary judgment on the ground of qualified immunity." 472 U. S., at 527.The Court of Appeals in the present case, in the first of its two decisions, rested its "one-appeal" pronouncement upon the proposition that resolving the question of entitlement to qualified immunity "should not require more than one judiciously timed appeal." Pelletier, 968 F. 2d, at 871. It did not explain how this proposition pertains to the question of finality, but we suppose it could be argued that a category of appeals thought to be needless or superfluous does not raise a claim of right "too important to be denied review," as our Cohen finality jurisprudence requires, see 337 U. S., at 546.309In any event, the proposition is not sound. That one appeal on the immunity issue may not be enough is illustrated by the history of respondent's claims for loss of employment at Pioneer in the present case. Because these claims had initially been dismissed as time barred, the Court of Appeals refused to decide (and thus evidently regarded as an open question) whether one who holds his job subject to regulatory approval can assert a constitutionally cognizable expectation of continued employment. See Pelletier, supra, at 871-872. Thus, the question whether petitioner was entitled to immunity on these claims was not presented to any court until petitioner's summary judgment motion-and, by operation of the Ninth Circuit's one-appeal rule, has never been addressed by an appellate court.That is assuredly an unusual set of circumstances, but even in a case proceeding in a more normal fashion resolution of the immunity question may "require more than one judiciously timed appeal," because the legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for "objective legal reasonableness." On summary judgment, however, the plaintiff can no longer rest on the pleadings, see Fed. Rule Civ. Proc. 56, and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry. It is no more true that the defendant who has unsuccessfully appealed denial of a motion to dismiss has no need to appeal denial of a motion for summary judgment, than it is that the defendant who has unsuccessfully made a motion to dismiss has no need to make a motion for summary judgment.33JU8TICE BREYER suggests that the second of two pretrial qualified-immunity appeals does not come within Cohen's class of immediately ap-310The Court of Appeals expressed concern that a second appeal would tend to have the illegitimate purpose of delaying the proceedings. See 968 F. 2d, at 870-871. Undeniably, the availability of a second appeal affords an opportunity for abuse, but we have no reason to believe that abuse has often occurred. To the contrary, successive pretrial assertions of immunity seem to be a rare occurrence.4 Moreover, if and when abuse does occur, as we observed in the analogous context of interlocutory appeals on the issue of double jeopardy, "[i]t is well within the supervisory powers of the courts of appeals to establish summary procedures and calendars to weed out frivolous claims." Abney, 431 U. S., at 662, n. 8. In the present case, for example, the District Court appropriately certified petitioner's immunity appeal as "frivolous" in light of the Court of Appeals' (unfortunately erroneous) one-appeal precedent. This practice, which has been embraced by several Circuits, enables the district court to re-pealable final orders because it is insufficiently "separable" from the claim raised on the first appeal, see post, at 316. But the Cohen "separability" component asks whether the question to be resolved on appeal is "conceptually distinct from the merits of the plaintiff's claim." Mitchell v. Forsyth, 472 U. S. 511, 527 (1985). The appropriate comparison, then, is between the decision sought to be reviewed and the claim underlying the action itself-not between the decision and any previous appeal, as JusTICE BREYER suggests. And again, Mitchell clearly states that a denial of qualified immunity, whether on a motion for dismissal or summary judgment, is an "appealable 'final decision.''' Id., at 530.4 We are aware of only five reported cases-Mitchell itself, Nelson v.Silverman, 999 F.2d 417 (CA9 1993), Abel v. Miller, 904 F.2d 394 (CA7 1990), Francis v. Coughlin, 891 F.2d 43 (CA2 1989), and the present case-in which Courts of Appeals have been twice asked to review successive pretrial assertions of immunity. See Abel, supra, at 396 ("Paucity of precedent [on successive interlocutory appeals] must reflect the forbearance of public officials rather than lack of opportunity"); Kaiter v. Boxford, 836 F.2d 704, 706 (CA1 1988) ("[I]n every case we have found which permitted interlocutory review of an immunity ruling, the defendant's entire claim to immunity was raised in a single proceeding").311tain jurisdiction pending summary disposition of the appeal, and thereby minimizes disruption of the ongoing proceedings. See, e. g., Chum an v. Wright, 960 F.2d 104, 105 (CA9 1992); Yates v. Cleveland, 941 F.2d 444, 448-449 (CA6 1991); Stewart v. Donges, 915 F.2d 572, 576-577 (CAlO 1990); Apostol v. Gallion, 870 F.2d 1335, 1339 (CA7 1989). In any event, the question before us here-whether there is jurisdiction over the appeal, as opposed to whether the appeal is frivolous-must be determined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order. "Appeal rights cannot depend on the facts of a particular case." Carroll v. United States, 354 U. S. 394, 405 (1957). See also Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 868 (1994). As we have said, an order denying qualified immunity, to the extent it turns on an "issue oflaw," Mitchell, 472 U. S., at 530, is immediately appealable.IIIOur rejection of the one-interlocutory-appeal rule does not dispose of this case. Respondent proposes two other reasons why appeal of denial of the summary judgment motion is not available. First, he argues that no appeal is available where, even if the District Court's qualified-immunity ruling is reversed, the defendant will be required to endure discovery and trial on matters separate from the claims against which immunity was asserted. Respondent reasons that a ruling which does not reach all the claims does not "conclusively determin[e] the defendant's claim of right not to stand trial," id., at 527, and thus the order denying immunity cannot be said to be "final" within the meaning of Cohen.It is far from clear that, given the procedural posture of the present case, respondent would be entitled to the benefit of the proposition for which he argues; but we will address the proposition on its merits. The Courts of Appeals have312almost unanimously rejected it,5 and so do we. The Harlow right to immunity is a right to immunity from certain claims, not from litigation in general; when immunity with respect to those claims has been finally denied, appeal must be available, and cannot be foreclosed by the mere addition of other claims to the suit. Making appealability depend upon such a factor, particular to the case at hand, would violate the principle discussed above, that appealability determinations are made for classes of decisions, not individual orders in specific cases. Apart from these objections in principle, the practical effect of respondent's proposal would be intolerable. If the district court rules erroneously, the qualified-immunity right not to be subjected to pretrial proceedings will be eliminated, so long as the plaintiff has alleged (with or without evidence to back it up) violation of one "clearly established" right; and both that and the further right not to be subjected to trial itself will be eliminated, so long as the complaint seeks injunctive relief (for which no "clearly established" right need be alleged).Second, respondent asserts that appeal of denial of the summary judgment motion is not available because the denial rested on the ground that "[m]aterial issues of fact remain." This, he contends, renders the denial unappealable under last Term's decision in Johnson v. Jones, 515 U. S., at 313-318. That is a misreading of the case. Denial of summary judgment often includes a determination that there are controverted issues of material fact, see Fed. Rule Civ. Proc.5 See, e. g., McLaurin v. Morton, 48 F.3d 944,949 (CA6 1995); Green v.Brantley, 941 F.2d 1146, 1148-1151 (CAll 1991) (en bane); Di Martini v. Ferrin, 889 F.2d 922, 924-925 (CA9 1989), cert. denied, 501 U. S. 1204 (1991); Young v. Lynch, 846 F.2d 960, 961-963 (CA4 1988); De Vargas v. Mason & Hanger Silas Mason Co., 844 F.2d 714, 717-718 (CAlO 1988); Musso v. Hourigan, 836 F.2d 736, 742, n. 1 (CA2 1988); Scott v. Lacy, 811 F. 2d 1153, 1153-1154 (CA7 1987); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1188-1190 (CA1 1986); Tubbesing v. Arnold, 742 F.2d 401, 403-404 (CA8 1984). Only the Third Circuit holds otherwise. See Prisco v. United States Dept. of Justice, 851 F.2d 93, 95-96, cert. denied, 490 U. S. 1089 (1989).31356, and Johnson surely does not mean that every such denial of summary judgment is nonappealable. Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly "separable" from the plaintiff's claim, and hence there is no "final decision" under Cohen and Mitchell. See 515 U. S., at 313-318. Johnson reaffirmed that summary judgment determinations are appealable when they resolve a dispute concerning an "abstract issu[e] of law" relating to qualified immunity, id., at 317-typically, the issue whether the federal right allegedly infringed was "clearly established," see, e. g., Mitchell, supra, at 530-535; Davis v. Scherer, 468 U. S. 183, 190-193 (1984).Here the District Court's denial of petitioner's summary judgment motion necessarily determined that certain conduct attributed to petitioner (which was controverted) constituted a violation of clearly established law. Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of "objective legal reasonableness." This argument was presented by petitioner in the trial court, and there is no apparent impediment to its being raised on appeal. And while the District Court, in denying petitioner's summary judgment motion, did not identify the particular charged conduct that it deemed adequately supported, Johnson recognizes that under such circumstances "a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, supra, at 319. That is the task now facing the Court of Appeals in this case.314The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1995SyllabusBEHRENS v. PELLETIERCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 94-1244. Argued November 7, 1995-Decided February 21, 1996Respondent was fired as provisional managing officer of Pioneer Savings and Loan Association after petitioner, the federal official responsible for monitoring Pioneer's operations, recommended such action because respondent was under investigation for potential misconduct relating to the collapse of another financial institution. Respondent filed this suit, seeking, inter alia, damages for alleged constitutional wrongs under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388. In partially denying petitioner's motion to dismiss the Bivens claims, the District Court rejected petitioner's asserted defense of qualified immunity from suit. On appeal, the Ninth Circuit held that denial of qualified immunity is an immediately appealable "final" decision under 28 U. S. C. § 1291 and Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, but also stated, in dictum, that an official claiming qualified immunity is entitled to only one such pretrial appeal. Ultimately, the court affirmed the District Court's rejection of petitioner's qualified-immunity defense, based on the allegations made in respondent's complaint. On remand and after further proceedings, the District Court denied petitioner's motion for summary judgment, which again claimed qualified immunity. Petitioner's appeal from that denial, his second pretrial appeal based on a rejection of the qualified-immunity defense, was summarily dismissed by the Ninth Circuit "for lack of jurisdiction."Held: A defendant's immediate appeal of an unfavorable qualified-immunity ruling on a motion to dismiss does not deprive the court of appeals of jurisdiction over a second appeal, also based on qualified immunity, immediately following denial of summary judgment. Pp. 305-314.(a) The Ninth Circuit's one-interlocutory-appeal rule is rejected. In Mitchell v. Forsyth, 472 U. S. 511, 530, this Court held that a district court's denial of qualified immunity is an immediately appealable "final decision" within the meaning of 28 U. S. C. § 1291. Mitchell plainly contemplated that a government officer could raise the qualified-immunity defense at both the motion-to-dismiss and the summary-judgment stage, see 472 U. S., at 526, and clearly establishes that an order rejecting the defense at either stage is a "final" judgment subject to immediate appeal. An unsuccessful appeal from denial of a motion to dismiss cannot possibly render the later denial of a motion for summary judgment any300Syllabusless "final" than it would be absent the prior decision. It follows that petitioner's appeal seeks review of a "final decision" within § 1291 and that its dismissal by the Court of Appeals was improper. The Ninth Circuit's proposition that no more than one judiciously timed appeal should be necessary to safeguard a defendant's right to qualified immunity is unsound, because the factors determinative of the qualified-immunity question will be different on summary judgment, where the court looks to the uncontested evidence, than on an earlier motion to dismiss, where it merely looks to the allegations of the complaint. pp.305-311.(b) Respondent's additional arguments as to why dismissal was proper-(l) that the order denying qualified immunity could not be said to be "final" under Cohen since, even if it were to be reversed, petitioner would nonetheless be required to endure discovery and trial on other matters, and (2) that, under Johnson v. Jones, 515 U. S. 304, the denial of summary judgment is not immediately appealable because it rests on the determination that a genuine dispute exists as to material issues of fact-are also rejected. Pp.311-313.Reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 314.Lenard G. Weiss argued the cause for petitioner. With him on the briefs was Christine A. Murphy.Cornelia T. L. Pillard argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, Barbara L. Herwig, and Richard A. Olderman.Samuel T. Rees, by appointment of the Court, 515 U. S. 1101, argued the cause for respondent. With him on the brief was Michael J. White. ** Louise H. Renne, Dennis Aftergut, G. Scott Emblidge, Ronald R. Ball, David J. Erwin, J. Kenneth Brown, Norman Herring, Edward J. Foley, Charles J. Williams, James K. Hahn, Katherine J. Hamilton, Gregory P. Priamos, Edward J. Cooper, Rene Auguste Chouteau, Mark G. Sellers, David B. Brearley, and Robert E. Murphy filed a brief for the City and County of San Francisco as amicus curiae urging reversal.301Full Text of Opinion

1984_82-2157

JUSTICE MARSHALL delivered the opinion for the Court.The issue presented is whether an employer who participates in a multiemployer benefit plan that is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., must allow the plan to conduct an audit involving the records of employees who the employer denies are participants in the plan.IAPetitioners are two large multiemployer benefit plans, the Central States, Southeast and Southwest Areas Pension Fund and the Central States, Southeast and Southwest Areas Health and Welfare Fund (hereinafter referred to collectively as Central States). [Footnote 1] Governed by § 302(c)(5) of Page 472 U. S. 562 the Labor Management Relations Act, 1947, 29 U.S.C. § 186(c)(5), and the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U.S.C. § 1001 et seq., as amended by the Multiemployer Pension Plan Amendments Act of 1980, Pub.L. 96-364, 94 Stat. 1208, these plans operate as trusts for the purpose of providing specified health, welfare, and pension benefits to employees performing work that is covered by collective bargaining agreements negotiated by various affiliates of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters).Respondents (hereinafter referred to collectively as Central Transport) are 16 interstate trucking companies, each of which, either individually or through a multiemployer association, engages in collective bargaining with the Teamsters. Pursuant to that bargaining, each has become a signatory to the National Master Freight Agreement and supplemental, individual collective bargaining agreements. Under these collective bargaining agreements, each employer must make weekly contributions to Central States for each employee who performs work covered by the collective bargaining agreements, and each employer agrees to be bound by the trust agreements that govern Central States.Because the plans are so large -- with thousands of participating employers -- Central States relies principally on employer self-reporting to determine the extent of an employer's liability. [Footnote 2] Central States polices this self-reporting Page 472 U. S. 563 system by conducting random audits of the records of participating employers.BOn December 5, 1979, Central States contacted Central Transport to arrange an audit, which it described as part of a program of "periodic reviews of participating employer contributions for the benefit of Plan Participants and their Beneficiaries.'" 522 F. Supp. 658, 662 (ED Mich.1981). The audit was to take place at Central Transport's offices and was to encompass, among other subjects, the "`[d]etermination of eligible Plan Participants covered by Collective Bargaining Agreements.'" Ibid,. Among the documents the auditors requested access to were payroll, tax, and other personnel records of those employees who the employer claimed were not plan participants.Central States explained that access to these records would allow the auditors independently to determine the membership of the class entitled to participate in the plans, and thus to verify that Central Transport was making all required contributions. [Footnote 3] Central Transport, however, insisted that 60% of its employees were not covered by the plans, and that Central States had no right to examine any records of noncovered employees. When Central Transport refused to allow the requested audit, Central States filed an action in Federal District Court seeking an"order permitting its auditors to conduct an independent verification of Central Transport's complete payroll records in order to determine Page 472 U. S. 564 whether the duties and status of each of its employees has been accurately reported by Central Transport."Id. at 660. [Footnote 4]The parties agreed that the facts of the case were not in dispute, and that the court should treat their pleadings as cross-motions for summary judgment. The District Court granted summary judgment in favor of Central States. After examining Central States' contractual relationship with Central Transport and Central States' responsibilities under ERISA, the court concluded that Central States had a right to conduct the requested audit. The audit was a reasonable means of "independently verify[ing] the status and duties of all individuals employed by Central Transport in order to insure that proper benefit contribution payments are being made." Ibid. The court thus ordered "that Central Transport provide to the audit representatives of Central States all of the documentation requested and that the audit procedure undertaken by Central States be allowed to continue." Ibid. [Footnote 5]The Court of Appeals for the Sixth Circuit reversed. 698 F.2d 802 (1983). Interpreting the collective bargaining agreements and trust documents in light of ERISA, the Court of Appeals held that Central States had to show "reasonable cause" to believe that a specific employee was covered by the plans before gaining a right of access to that employee's records. Id. at 809-812. We granted certiorari, 467 U.S. 1250 (1984), and we now reverse the judgment of the Court of Appeals. Page 472 U. S. 565IIThe documents governing Central Transport's contractual relationship with Central States include the collective bargaining agreements between Central Transport and various affiliates of the Teamsters and the trust agreements of the Central States plans. Generally, the collective bargaining agreements obligate Central Transport to participate in the Central States plans and to be bound by Central States' trust agreements. The trust agreements, which have been signed by Central Transport, govern the operation of the plans.These trust documents include a number of provisions that are highly supportive of the right to audit claimed by Central States' trustees.AWe note first that the Pension Fund trust agreement [Footnote 6] places on each participating employer the responsibility to make "continuing and prompt payments to the Trust Fund as required by the applicable collective bargaining agreement." App. to Pet. for Cert. A-44 (Art. III, § 1). The trustees are designated the recipients of all contributions and are "vested with all right, title and interest in and to such moneys." Ibid. (Art. III, § 3).The agreement contains various specific and general grants of power to the trustees to enable them to administer the trusts properly. Most generally, the agreements authorize the trustees to "do all acts, whether or not expressly authorized . . . which [they] may deem necessary or proper for the protection of the property held [under the trust agreement]." Id. at A-47 (Art. IV, § 14(e)). The agreement also grants broad powers relating to the collection of employer contributions, Page 472 U. S. 566 such as the power "to demand and collect the contributions of the Employers to the Fund," id. at A-45 (Art. III, § 4), and the power to"take such steps . . . as the Trustees in their discretion deem in the best interest of the Fund to effectuate the collection or preservation of contributions . . . which may be owed to the Trust Fund."Ibid.Among the more specific grants of trustee power is a power to demand and examine employer records:"Production of Records -- Each employer shall promptly furnish to the Trustees, upon reasonable demand the names and current addresses of its Employees, their Social Security numbers, the hours worked by each Employee and past industry employment history in its files and such other information as the Trustees may reasonably require in connection with the administration of the Trust. The Trustees may, by their representatives, examine the pertinent records of each Employer at the Employer's place of business whenever such examination is deemed necessary or advisable by the Trustees in connection with the proper administration of the Trust."Id. at A-46 (Art. III, § 5) (emphasis added).BCentral States' trustees interpret these provisions as authorizing random field audits like the one at issue in this case. In particular, they argue that the records of not-concedely-covered employees are "pertinent records" because their examination is a "proper" means of verifying that the employer has accurately determined the class of covered employees. The plans have a substantial interest in verifying the employer's determination of participant status, the trustees argue, because an employer's failure to report all those who perform bargaining unit work may prevent the plans from notifying participants and beneficiaries of their entitlements and obligations under the plans and may create Page 472 U. S. 567 unfunded liabilities chargeable against the plans. [Footnote 7] Moreover, an employer has an incentive to underreport the number of employees covered, because such underreporting would reduce his liability to the plans.The reasonableness and propriety of the audit are confirmed, the trustees argue, by the accounting profession's generally accepted auditing standards, which articulate the elementary principle that for an auditor to verify a certain selection decision, he must refer to a universe broader than the selection itself:"When planning a particular sample, the auditor should consider the specific audit objective to be achieved and should determine that the audit procedure, or combination of procedures to be applied will achieve that objective. The auditor should determine that the population from which he draws the sample is appropriate for the specific audit objective. For example, an auditor would not be able to detect understatements of an account due to omitted items by sampling the recorded items. An appropriate sampling plan for detecting such understatements would involve selecting from a source in which the omitted items are included."American Institute of Certified Public Accountants, Codification of Statements on Auditing Standards, AU § 350.17, p. 223 (1985) (emphasis added). Page 472 U. S. 568The trustees' determination that the trust documents authorize their access to the records here in dispute has significant weight, for the trust agreement explicitly provides that "any construction [of the agreement's provisions] adopted by the Trustees in good faith shall be binding upon the Union, Employees and Employers." App. to Pet. for Cert. A-48 (Art. IV, § 17). [Footnote 8] There has been no evidence of a bad-faith motive behind the trustees' determination of the scope of their powers under the trust agreement or behind their determination of the auditing program's propriety. The trustees assert that the requested audit is highly relevant to the trust's legitimate interests, and this assertion fully conforms to generally accepted auditing standards. Thus, if our inquiry were merely an inquiry into the trust agreement, the trustees' right to conduct the audit in question would seem clear.IIIThe Court of Appeals, nonetheless, rejected the Central States trustees' interpretation of their contractual power. In the court's view, such an auditing power would be unreasonable in light of the policies and protections embodied in ERISA. We agree with the Court of Appeals that trust documents cannot excuse trustees from their duties under ERISA, and that trust documents must generally be construed in light of ERISA's policies, see 29 U.S.C. § 1104(a)(1)(D), but we find no inherent inconsistency between ERISA and the interpretation of the trust agreement offered by the Central States trustees. Indeed, we find the Page 472 U. S. 569 trustees' interpretation of their documents to be entirely reasonable in light of ERISA's policies.An examination of the duties of plan trustees under ERISA, and under the common law of trusts upon which ERISA's duties are based, makes clear that the requested audit is highly relevant to legitimate trustee concerns.AThis Court has on a number of occasions discussed the policy concerns behind ERISA. In Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S. 359, 446 U. S. 361 (1980), we noted that Congress enacted ERISA after "almost a decade of studying the Nation's private pension plans" and other employee benefit plans. [Footnote 9] Congress found that there had been a "rapid and substantial" growth in the "size, scope, and numbers" of employee benefit plans and that "the continued wellbeing and security of millions of employees and their dependents are directly affected by these plans." 29 U.S.C. § 1001(a). But it also recognized that "owing to the inadequacy of [pre-ERISA] minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may [have been] endangered." Ibid. We have recognized that one of ERISA's principal purposes was "to correct this condition by making sure that, if a worker has been promised a defined pension benefit upon retirement -- and if he has fulfilled whatever conditions are required to obtain a vested benefit -- he actually will receive it." 446 Page 472 U. S. 570 U.S. at 446 U. S. 375. One of the methods of accomplishing this was the provision of "minimum standards" that would "assur[e] the equitable character of [employee benefit plans] and their financial soundness." 29 U.S.C. § 1001(a).BIn general, trustees' responsibilities and powers under ERISA reflect Congress' policy of "assuring the equitable character" of the plans. Thus, rather than explicitly enumerating all of the powers and duties of trustees and other fiduciaries, Congress invoked the common law of trusts to define the general scope of their authority and responsibility. [Footnote 10] Under the common law of trusts, as under the Central States trust agreements, trustees are understood to have all "such powers as are necessary or appropriate for the carrying out of the purposes of the trust." 3 A. Scott, Law of Trusts § 186, p. 1496 (3d ed.1967) (hereinafter Scott). [Footnote 11]The manner in which trustee powers may be exercised, however, is further defined in the statute through the provision of strict standards of trustee conduct, also derived from the common law of trusts -- most prominently, a standard of loyalty and a standard of care. Under the former, a plan Page 472 U. S. 571 fiduciary"shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and . . . for the exclusive purpose of providing benefits to participants and their beneficiaries; and . . . defraying reasonable expenses of administering the plan."29 U.S.C. § 1104(a)(1)(A). See also § 1103(c)(1); cf. § 186(c)(5). Under the latter, a fiduciary"shall discharge his duties with respect to a plan . . . with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims."§ 1104(a)(1)(B). [Footnote 12]An examination of the structure of ERISA in light of the particular duties and powers of trustees under the common law leaves no doubt as to the validity and weight of the audit goals on which Central States relies. ERISA clearly assumes that trustees will act to ensure that a plan receives all funds to which it is entitled, so that those funds can be used on behalf of participants and beneficiaries, and that trustees Page 472 U. S. 572 will take steps to identify all participants and beneficiaries, so that the trustees can make them aware of their status and rights under the trust's terms.COne of the fundamental common law duties of a trustee is to preserve and maintain trust assets, Bogert § 582, at 346, and this encompasses "determin[ing] exactly what property forms the subject matter of the trust [and] who are the beneficiaries." Id. § 583, at 348 (footnotes omitted). The trustee is thus expected to "use reasonable diligence to discover the location of the trust property and to take control of it without unnecessary delay." Id. at 355. [Footnote 13] A trustee is similarly expected to "investigate the identity of the beneficiary when the trust documents do not clearly fix such party" and to "notify the beneficiaries under the trust of the gifts made to them." Id. at 348-349, n. 40.The provisions of ERISA make clear that a benefit plan trustee is similarly subject to these responsibilities, not only as a result of the general fiduciary standards of loyalty and care, borrowed as they are from the common law, but also as a result of more specific trustee duties itemized in the Act. For example, the Act's minimum reporting and disclosure standards require benefit plans to furnish all participants with various documents informing them of their rights and obligations under the plan, see, e.g., 29 U.S.C. §§ 1021, 1022, 1024(b), [Footnote 14] a task that would certainly include the duty of determining who is in fact a plan participant. [Footnote 15] The Act also Page 472 U. S. 573 requires that a benefit plan prevent participant employers from gaining even temporary use of assets to which the plan is entitled, see § 1106(a)(1)(B) (prohibiting trustees from "caus[ing] the plan to engage in a transaction, if . . . such transaction constitutes a direct or indirect . . . extension of credit" to a participating employer), a requirement that would certainly create a trustee responsibility for assuring full and prompt collection of contributions owed to the plan. [Footnote 16]Moreover, that these trustee duties support the auditing authority claimed in this case is strongly suggested by the other provisions of ERISA as well as by the positions of the administrative agencies charged with the administration of the Act. For example, § 209 of the Act supplements the benefit plans' duties to furnish reports to plan participants by requiring employers to maintain records on employees and to furnish to benefit plans the information needed for the plans' fulfillment of their reporting duties. 29 U.S.C. § 1059. The Secretary of Labor has explicitly interpreted the trustees' duty to prevent employer use of trust assets as creating a plan duty to verify employer determinations and requiring plans to adopt systems for policing employers. And the Secretary has endorsed the appropriateness of field auditing programs for this purpose. Thus, the Secretary notes that"many multiple employer plans have adopted written procedures for the orderly collection of delinquent employer contributions which involve reasonable, diligent and systematic Page 472 U. S. 574 methods for the review of employer contribution accounts by means of, for example, . . . field audits."In the Department's view, plans "which do not establish and implement [such] collection procedures" may "by failing to collect delinquent contributions" be found to have violated § 406's prohibition of extensions of credit to employers. Prohibited Transaction Exemption 76-1, 41 Fed.Reg. 12740, 12741 (1976); accord, Department of Labor Advisory Op.No. 78-28A (Dec. 5, 1978) (reprinted in App. to Pet. for Cert. A71-A74).In light of the general policies behind ERISA as well as the particular provisions of the statute, we can only conclude that there is no conflict between ERISA and those concerns offered by Central States to justify its audit program. Both the concern for fully informing participants of their rights and status under a plan and the concern for assuring the financial integrity of the plans by determining the class of potential benefit claimants and holding employers to the full and prompt fulfillment of their contribution obligations are proper and weighty within the framework of ERISA.IVThe Court of Appeals offered a number of reasons why the requested audit would nevertheless be improper as a matter of law. The Court of Appeals largely relied on the presence of alternative means of protecting a plan's interests to conclude that a plan's access to employee records could safely be limited to those instances where a plan shows "reasonable cause" to believe that a specific employee is a participant. The court speculated that "[t]he Funds enjoy a number of protections against being called upon to dispense benefits to a participant on whose behalf no contributions or insufficient contributions were made," 698 F.2d at 813, that the plans thus did not need primarily to rely on its own monitoring to safeguard its interests, and that therefore "the possibility of Page 472 U. S. 575 liability . . . on the part of . . . the Funds [could] not justify the broad audit [the trustees] seek." Ibid.AThe Court of Appeals first noted that employer contributions could effectively be policed by interested unions or by the Secretary of Labor, thus diminishing the trustees' interests in independently monitoring employer compliance. Moreover, in the court's view, a plan's reliance on union or Government oversight of an employer's contributions would be more consistent with federal policies in the pension and labor fields than would be a plan's reliance on the sort of audit at issue here.(1)The notion that federal policy favors union enforcement of an employer's collectively bargained obligations to a benefit plan, to the exclusion of enforcement by the plan's trustees, simply did not survive last Term's decision in Schneider Moving & Storage Co. v. Robbins, 466 U. S. 364 (1984). In Schneider, we held that a benefit plan could bring an independent action for judicial enforcement of an employer's trust obligations, and we in large part relied on the proposition that there was no federal policy favoring trustee dependence on a union's use of a grievance and arbitration system for such enforcement. [Footnote 17]Of greatest significance here is this Court's conclusion that compelling benefit plans to rely on unions would erode the protections ERISA assures to beneficiaries, for the diminishment of trustee responsibility that would result would not necessarily be made up for by the union. ERISA places strict duties on trustees with respect to the interests of Page 472 U. S. 576 beneficiaries, and unions' duties toward beneficiaries are of a quite different scope.A trustee's duty extends to all participants and beneficiaries of a multiemployer plan, while a local union's duty is confined to current employees employed in the bargaining unit in which it has representational rights. The breadth of the trustee's duty may result in a very different view of the special situations that may exist in any single unit, and, as we recognized in Schneider, a union's arrangements with a particular employer might compromise the broader interests of the plan as a whole:"These are multiemployer trust funds. Each of the participating unions and employers has an interest in the prompt collection of the proper contribution from each employer. Any diminution of the fund caused by the arbitration requirements of a particular employer's collective bargaining agreement would have an adverse effect on the other participants."466 U.S. at 466 U. S. 373 (footnotes omitted). See also Lewis v. Benedict Coal Co., 361 U. S. 459, 361 U. S. 469 (1960). See generally Schneider, supra, at 466 U. S. 376, n. 22 (the union's duty "runs only to the members of its collective bargaining unit, and is coextensive with its statutory authority to act as the exclusive representative for all the employees within the unit"). [Footnote 18]Similarly, a local union's duties to bargaining unit workers is a general duty to act in the group's interests regarding the overall terms and conditions of employment. The trustees' Page 472 U. S. 577 duty, in contrast, is to provide specific benefits to those who are entitled to them in accordance with the terms of a plan. That the general nature of a union's duty may result in less than full protection to individual entitlements has been well recognized in our cases, and we have accordingly refrained from making enforcement of such entitlements rest primarily on union action. See Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728, 450 U. S. 742 (1981) (union goal of maximizing overall compensation for the bargaining unit as a whole may prevent it from effectively policing employer's payment to each employee of statutory minimum wages). In Schneider, we recognized that in the context of ERISA primary reliance on unions would allow "wide discretion and would provide only limited protection," 466 U.S. at 466 U. S. 376, n. 22, to those participant and beneficiary rights that the statute was designed to ensure:"A primary union objective is 'to maximize overall compensation of its members.' Thus, it may sacrifice particular elements of the compensation package 'if an alternative expenditure of resources would result in increased benefits for workers in the bargaining unit as a whole.'"Ibid. (citation omitted). See also NLRB v. Amax Coal Co., 453 U. S. 322, 453 U. S. 336 (1981) ("The atmosphere in which employee benefit trust fund fiduciaries must operate, as mandated by [29 U.S.C. § 186(c)(5)] and ERISA, is wholly inconsistent with th[e] process of compromise and economic pressure [that characterizes collective bargaining]").The rationale in Schneider and our other cases in this area thus precludes a holding that a benefit plan must primarily rely on union monitoring of an employer's compliance with its trust obligations. [Footnote 19] Page 472 U. S. 578(2)There are also compelling reasons why the Department of Labor's power to police employer compliance must be rejected as an alternative to audits by the plans themselves. Indeed, the structure of ERISA makes clear that Congress did not intend for Government enforcement powers to lessen the responsibilities of plan fiduciaries.First, the Department of Labor denies that it has the resources for policing the day-to-day operations of each multiemployer benefit plan in the Nation. The United States, as amicus, informs us that approximately 900,000 benefit plans file annual reports with the Secretary of Labor, and that between 11,000 and 12,000 of these are multiemployer plans. As the petitioners' situations illustrate, some multiemployer plans can be quite large. See n 1, supra. It is therefore not surprising that the United States argues that"[i]t is thus wholly unrealistic to suggest that centralizing all auditing authority in the Secretary would provide protection to benefit plan participants comparable to that afforded by trustee audits."Brief for United States as Amicus Curiae 20, n. 11.Second, although ERISA grants the Secretary of Labor broad investigatory powers, see, e.g., 29 U.S.C. § 1134, neither the structure of the Act nor the legislative history shows any congressional intent that plans should rely primarily on centralized federal monitoring of employer contribution requirements. Indeed, Congress expressly withheld from the Secretary the authority to initiate actions to enforce an employer's contribution obligations. See 29 U.S.C. §§ 1132(b)(2), 1145. In contrast, as we have noted, trustees Page 472 U. S. 579 were given the authority to sue to enforce an employer's obligations to a plan. § 1132.BThe Court of Appeals also challenged Central States' need for the audit because of the likelihood that covered employees would themselves come forward to assure that employers are making required contributions on their behalf. The court emphasized that participants could become aware of their status through the Act's reporting provisions. 698 F.2d at 813 (citing 29 U.S.C. § 1021). But although the reporting requirements are designed to assure that participants receive information about their status and rights, they do so by placing a reporting duty on the plans. Thus, to give participants initial notice of their status, the plans need to know the identities of participants. See nn. 14 15 supra, and accompanying text. That is, of course, precisely the information that Central States sought to verify in its requested audit. [Footnote 20] Page 472 U. S. 580CThe Court of Appeals' remaining reason for questioning Central States' interest in the audit focused on the fact that a benefit plan would have an action against a delinquent employer should any benefit claims ever be made by a participant who had never been the subject of contributions. We reject the notion that the plan's ultimate ability to remedy an employer's breach of its obligations forecloses the plan from seeking to deter such breaches or to discover them early. Such a suggestion ignores the trustees' fiduciary duty to inform participants and beneficiaries of their rights, to gain immediate use of trust assets for the benefit of the trust, to avoid the time and expense of litigation, and to avoid unfunded liabilities that might eventually prove uncollectable as a result of insolvencies. For a plan passively to allow an employer to create such unfunded liabilities would jeopardize the participants' and beneficiaries' interests as well as those of all participating employers who properly comply with their obligations. See Schneider, 466 U.S. at 466 U. S. 373, and n. 17.The Court of Appeals' argument obviously conflicts with one of the principal congressional concerns motivating the passage of the Act, that plans should assure themselves of adequate funding by promptly collecting employer contributions. [Footnote 21] In ERISA, Congress sought to create a pension system in which "[a]ll current accruals of benefits based on current service . . . [would] be paid for immediately." H.R.Rep. No. 93-533, p. 14 (1973). See generally 29 U.S.C. § 1082. As the Reports accompanying the bills declared:"The pension plan which offers full protection to its employees is one which is funded with accumulated assets which at least are equal to the accrued liabilities, Page 472 U. S. 581 and with a contribution rate sufficient to maintain that status at all times."Id. at 7; S.Rep. No. 93-127, pp. 9-10 (1973) (identical language). [Footnote 22]VGiven Congress' vision of the proper administration of employee benefit plans under ERISA, we have little difficulty holding that the audit requested by Central States is well within the authority of the trustees as outlined in the trust documents. But we should also specify what we do not hold. First, we do not hold that under ERISA a benefit plan's interests in fully identifying participants and beneficiaries require that it conduct the sort of audit in question. This case involves only the trustees' right to conduct this particular kind of audit program, not their duty to do so. Second, we have no occasion to determine whether ERISA would independently confer on the trustees a right to perform the sort of audit demanded in this case in the face of trust documents that explicitly limit the audit powers of trustees. Cf. 29 Page 472 U. S. 582 U.S.C. § 1104(a)(1)(D). Last, we have no occasion in this case to analyze what sort of factual showing would be necessary to a claim that a particular auditing program was being conducted in a manner that violated ERISA's fiduciary duties of loyalty or care. Although we do not question the proposition that the auditing powers of a benefit plan are limited to prudent actions furthering the legitimate purposes of the plan, there is no reason in ERISA or the plan documents of this case why the kind of audit requested here should, as a matter of law, be considered outside the scope of proper plan administration. [Footnote 23]The judgment of the Court of Appeals is accordingly reversed.It is so ordered

U.S. Supreme CourtCentral States Pension Fund v. Central Transp., 472 U.S. 559 (1985)Central States, Southeast & Southwest Areas Pension Fundv. Central Transport, Inc.No. 82-2157Argued November 27, 1984Decided June 19, 1985472 U.S. 559SyllabusPetitioners are multiemployer benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA). The plans operate under trust agreements for the purpose of providing health, welfare, and pension benefits to employees performing work that is covered by collective bargaining agreements negotiated between a labor union and respondent trucking companies. Under these collective bargaining agreements, each employer must make weekly contributions to petitioners for each such employee, and each employer agrees to be bound by the trust agreements. Because they are so large, petitioners rely on employer self-reporting to determine the extent of an employer's contribution liability, and police this self-reporting system by conducting random audits of the participating employers' records. When respondents refused to allow petitioners' requested audit of respondents' payroll, tax, and personnel records, including records of employees who respondents claimed were not plan participants, petitioners filed an action in Federal District Court seeking an order permitting the audit. The District Court granted summary judgment in favor of petitioners. The Court of Appeals reversed, holding that petitioners had to show "reasonable cause" to believe that a specific employee was covered by the plans before gaining a right of access to that employee's records.Held: Respondents must allow petitioners to conduct the requested audit. Pp. 472 U. S. 565-581.(a) Various provisions of the trust agreements granting the trustees power to enable them to administer the trusts properly, including a provision granting power to demand and examine pertinent employer records, support the right to audit claimed by petitioners. Moreover, petitioners' assertion that the requested audit is highly relevant to the trust agreements' legitimate interests fully conforms to generally accepted auditing standards. Pp. 472 U. S. 565-568.(b) Petitioners' trustees' interpretation of the trust agreements as authorizing the requested audit is not inconsistent with ERISA, and indeed, is entirely reasonable in light of ERISA's policies. Rather Page 472 U. S. 560 than explicitly enumerating all of the powers and duties of trustees, Congress invoked the common law of trusts to define the scope of their authority and responsibility. Under the common law, trustees have all such powers as are necessary or appropriate for the carrying out of the trust purposes, and an examination of ERISA's structure in light of the common law leaves no doubt as to the validity and weight of the audit goals on which petitioners rely. Both the concerns for fully informing participants of their rights and status under a plan and for assuring the financial integrity of the plans by determining the class of potential benefit claimants and by holding employers to the full and prompt fulfillment of their contribution obligations are proper and weighty within ERISA's framework. Pp. 472 U. S. 568-574.(c) A benefit plan should not have to rely on union monitoring of an employer's compliance with its trust obligations as an alternative to audits by the plans themselves. Cf. Schneider Moving & Storage Co. v. Robbins, 466 U. S. 364. A trustee's duty extends to all participants and beneficiaries of a multiemployer plan, whereas a union's duty is confined to current employees employed in the bargaining unit in which it has representational rights. Nor would the Department of Labor's policing of employer compliance be an acceptable alternative. That Department has insufficient resources for such policing, and neither ERISA's structure nor its legislative history shows any congressional intent that benefit plans should rely primarily on centralized federal monitoring of employer contributions requirements. Pp. 472 U. S. 575-579.(d) To rely on covered employees themselves to come forward to assure that employers make the required contributions would not be feasible. While ERISA's reporting requirements are designed to assure that participants receive information about their status and rights, they do so by placing a reporting duty on the plans. Thus, to give participants initial notice of their status, the plans would need to know the participants' identities, the very information that the requested audit here sought to verify. P. 472 U. S. 579.(e) The fact that a benefit plan could bring an action against a delinquent employer as the employer's breaches of its obligations are discovered does not foreclose the plan from seeking to deter such breaches or discover them early. To suggest that a plan should be so foreclosed ignores the trustees' various fiduciary duties under ERISA and conflicts with ERISA's concern that plans should assure themselves of adequate funding by promptly collecting employer contributions. Pp. 472 U. S. 580-581.698 F.2d 802, reversed.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN WHITE, BLACKMUN, POWELL and O'CONNOR, JJ., joined. STEVENS, J., Page 472 U. S. 561 filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 472 U. S. 582.

2002_02-311

Syllabusfrom precedents in which this Court has found limited investigations into mitigating evidence to be reasonable. The record of the sentencing proceedings underscores the unreasonableness of counsel's conduct by suggesting that their failure to investigate thoroughly stemmed from inattention, not strategic judgment. Until the trial court denied their bifurcation motion, they had had every reason to develop the most powerful mitigation case possible. During the sentencing process itself, counsel did not focus exclusively on Wiggins' direct responsibility for the murder; rather they put on a halfhearted mitigation case instead. The Maryland Court of Appeals' assumption that counsel's investigation was adequate reflected an unreasonable application of Strickland. In deferring to counsel's decision not to present every conceivable mitigation defense despite the fact that counsel based their alleged choice on an inadequate investigation, the Maryland Court of Appeals further unreasonably applied Strickland. And the court's conclusion that the social services records revealed incidences of sexual abuse, when they in fact did not, reflects "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U. S. C. § 2254(d)(2). Contrary to the State's and the United States' contention, the record as a whole does not support the conclusion that counsel conducted a more thorough investigation than the one this Court describes. Ultimately, this Court's conclusion that counsel's investigation was inadequate does not mean that Strickland requires counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require counsel to present such evidence at sentencing in every case. Rather, the conclusion is based on the much more limited principle that "strategic choices made after less than complete investigation are reasonable" only to the extent that "reasonable professional judgments support the limitations on investigation." Strickland, supra, at 690-691. Pp. 523-534.(c) Counsel's failures prejudiced Wiggins' defense. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the proceeding's result would have been different. Strickland, supra, at 694. This Court assesses prejudice by reweighing the aggravating evidence against the totality of the mitigating evidence adduced both at trial and in the habeas proceedings. Williams v. Taylor, supra, at 397-398. The mitigating evidence counsel failed to discover and present here is powerful. Wiggins experienced severe privation and abuse while in the custody of his alcoholic, absentee mother and physical torment, sexual molestation, and repeated rape while in foster care. His time spent homeless and his diminished mental capacities further augment his mitigation case. He513thus has the kind of troubled history relevant to assessing a defendant's moral culpability. Penry v. Lynaugh, 492 U. S. 302, 319. Given the nature and extent of the abuse, there is a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing, and that a jury confronted with such mitigating evidence would have returned with a different sentence. The only significant mitigating factor the jury heard was that Wiggins had no prior convictions. Had it been able to place his excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance. Wiggins had no record of violent conduct that the State could have introduced to offset this powerful mitigating narrative. Thus, the available mitigating evidence, taken as a whole, might well have influenced the jury's appraisal of his moral culpability. Pp. 534-538.288 F.3d 629, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 538.Donald B. Verrilli, Jr., argued the cause for petitioner.With him on the briefs were Ian Heath Gershengorn and Lara M. Flint.Gary E. Bair, Solicitor General of Maryland, argued the cause for respondents. With him on the brief were J. Joseph Curran, Jr., Attorney General, and Kathryn Grill Graeff and Ann N. Bosse, Assistant Attorneys General.Dan Himmelfarb argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and Robert J. Erickson. **Briefs of amici curiae urging reversal were filed for the American Bar Association by Alfred P. Carlton, Lawrence J. Fox, David J. Kessler, and Robin M. Maher; for the Constitution Project by Virginia E. Sloan and Stephen F. Hanlon; for the National Association of Criminal Defense Lawyers et al. by David A. Reiser, Eleanor H. Smith, and Lisa B. Kemler; for the National Association of Social Workers et al. by Thomas C. Gold-514JUSTICE O'CONNOR delivered the opinion of the Court. Petitioner, Kevin Wiggins, argues that his attorneys' failure to investigate his background and present mitigating evidence of his unfortunate life history at his capital sentencing proceedings violated his Sixth Amendment right to counsel. In this case, we consider whether the United States Court of Appeals for the Fourth Circuit erred in upholding the Maryland Court of Appeals' rejection of this claim.I AOn September 17, 1988, police discovered 77-year-old Florence Lacs drowned in the bathtub of her ransacked apartment in Woodlawn, Maryland. Wiggins v. State, 352 Md. 580, 585, 724 A. 2d 1, 5 (1999). The State indicted petitioner for the crime on October 20, 1988, and later filed a notice of intention to seek the death penalty. Two Baltimore County public defenders, Carl Schlaich and Michelle Nethercott, assumed responsibility for Wiggins' case. In July 1989, petitioner elected to be tried before a judge in Baltimore Countystein and Amy Howe; and for Janet F. Reno et al. by Robert S. Litt, Kathleen A. Behan, and John A. Freedman.Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, and Kristofer Jorstad, A. Scott Hayward, and Donald E. De Nicola, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Terry Goddard of Arizona, Ken Salazar of Colorado, Thurbert E. Baker of Georgia, Lisa Madigan of Illinois, Steve Carter of Indiana, Richard P. Ieyoub of Louisiana, Mike McGrath of Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Jim Petro of Ohio, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Larry Long of South Dakota, Mark L. Shurtleff of Utah, Jerry W Kilgore of Virginia, and Christine O. Gregoire of Washington; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.515Circuit Court. Ibid. On August 4, after a 4-day trial, the court found petitioner guilty of first-degree murder, robbery, and two counts of theft. App. 32.After his conviction, Wiggins elected to be sentenced by a jury, and the trial court scheduled the proceedings to begin on October 11, 1989. On September 11, counsel filed a motion for bifurcation of sentencing in hopes of presenting Wiggins' case in two phases. Id., at 34. Counsel intended first to prove that Wiggins did not act as a "principal in the first degree," ibid.-i. e., that he did not kill the victim by his own hand. See Md. Ann. Code, Art. 27, § 413 (1996) (requiring proof of direct responsibility for death eligibility). Counsel then intended, if necessary, to present a mitigation case. In the memorandum in support of their motion, counsel argued that bifurcation would enable them to present each case in its best light; separating the two cases would prevent the introduction of mitigating evidence from diluting their claim that Wiggins was not directly responsible for the murder. App. 36-42, 37.On October 12, the court denied the bifurcation motion, and sentencing proceedings commenced immediately thereafter. In her opening statement, N ethercott told the jurors they would hear evidence suggesting that someone other than Wiggins actually killed Lacs. Id., at 70-71. Counsel then explained that the judge would instruct them to weigh Wiggins' clean record as a factor against a death sentence. She concluded: "'You're going to hear that Kevin Wiggins has had a difficult life. It has not been easy for him. But he's worked. He's tried to be a productive citizen, and he's reached the age of 27 with no convictions for prior crimes of violence and no convictions, period .... I think that's an important thing for you to consider.'" Id., at 72. During the proceedings themselves, however, counsel introduced no evidence of Wiggins' life history.Before closing arguments, Schlaich made a proffer to the court, outside the presence of the jury, to preserve bifurca-516tion as an issue for appeal. He detailed the mitigation case counsel would have presented had the court granted their bifurcation motion. He explained that they would have introduced psychological reports and expert testimony demonstrating Wiggins' limited intellectual capacities and childlike emotional state on the one hand, and the absence of aggressive patterns in his behavior, his capacity for empathy, and his desire to function in the world on the other. See id., at 349-351. At no point did Schlaich proffer any evidence of petitioner's life history or family background. On October 18, the court instructed the jury on the sentencing task before it, and later that afternoon, the jury returned with a sentence of death. Id., at 409-410. A divided Maryland Court of Appeals affirmed. Wiggins v. State, 324 Md. 551, 597 A. 2d 1359 (1991), cert. denied, 503 U. S. 1007 (1992).BIn 1993, Wiggins sought postconviction relief in Baltimore County Circuit Court. With new counsel, he challenged the adequacy of his representation at sentencing, arguing that his attorneys had rendered constitutionally defective assistance by failing to investigate and present mitigating evidence of his dysfunctional background. App. to Pet. for Cert. 132a. To support his claim, petitioner presented testimony by Hans Selvog, a licensed social worker certified as an expert by the court. App. 419. Selvog testified concerning an elaborate social history report he had prepared containing evidence of the severe physical and sexual abuse petitioner suffered at the hands of his mother and while in the care of a series of foster parents. Relying on state social services, medical, and school records, as well as interviews with petitioner and numerous family members, Selvog chronicled petitioner's bleak life history. App. to Pet. for Cert. 163a.According to Selvog's report, petitioner's mother, a chronic alcoholic, frequently left Wiggins and his siblings home alone517for days, forcing them to beg for food and to eat paint chips and garbage. Id., at 166a-167a. Mrs. Wiggins' abusive behavior included beating the children for breaking into the kitchen, which she often kept locked. She had sex with men while her children slept in the same bed and, on one occasion, forced petitioner's hand against a hot stove burner-an incident that led to petitioner's hospitalization. Id., at 167a171a. At the age of six, the State placed Wiggins in foster care. Petitioner's first and second foster mothers abused him physically, id., at 175a-176a, and, as petitioner explained to Selvog, the father in his second foster home repeatedly molested and raped him. Id., at 176a-179a. At age 16, petitioner ran away from his foster home and began living on the streets. He returned intermittently to additional foster homes, including one in which the foster mother's sons allegedly gang-raped him on more than one occasion. Id., at 190a. After leaving the foster care system, Wiggins entered a Job Corps program and was allegedly sexually abused by his supervisor. Id., at 192a.During the postconviction proceedings, Schlaich testified that he did not remember retaining a forensic social worker to prepare a social history, even though the State made funds available for that purpose. App. 487-488. He explained that he and Nethercott, well in advance of trial, decided to focus their efforts on "'retry[ing] the factual case'" and disputing Wiggins' direct responsibility for the murder. Id., at 485-486. In April 1994, at the close of the proceedings, the judge observed from the bench that he could not remember a capital case in which counsel had not compiled a social history of the defendant, explaining, "'[n]ot to do a social history, at least to see what you have got, to me is absolute error. I just-I would be flabbergasted if the Court of Appeals said anything else.'" Id., at 605. In October 1997, however, the trial court denied Wiggins' petition for postconviction relief. The court concluded that "when the decision not to investigate ... is a matter of trial tactics, there is no518ineffective assistance of counsel." App. to Pet. for Cert. 155a-156a.The Maryland Court of Appeals affirmed the denial of relief, concluding that trial counsel had made "a deliberate, tactical decision to concentrate their effort at convincing the jury" that appellant was not directly responsible for the murder. Wiggins v. State, 352 Md., at 608, 724 A. 2d, at 15. The court observed that counsel knew of Wiggins' unfortunate childhood. They had available to them both the presentence investigation (PSI) report prepared by the Division of Parole and Probation, as required by Maryland law, Md. Ann. Code, Art. 41, § 4-609(d) (1988), as well as "more detailed social service records that recorded incidences of physical and sexual abuse, an alcoholic mother, placements in foster care, and borderline retardation." 352 Md., at 608-609, 724 A. 2d, at 15. The court acknowledged that this evidence was neither as detailed nor as graphic as the history elaborated in the Selvog report but emphasized that "counsel did investigate and were aware of appellant's background." Id., at 610,724 A. 2d, at 16 (emphasis in original). Counsel knew that at least one uncontested mitigating factor-Wiggins' lack of prior convictions-would be before the jury should their attempt to disprove Wiggins' direct responsibility for the murder fail. As a result, the court concluded, Schlaich and Nethercott "made a reasoned choice to proceed with what they thought was their best defense." Id., at 611-612, 724 A. 2d, at 17.CIn September 2001, Wiggins filed a petition for writ of habeas corpus in Federal District Court. The trial court granted him relief, holding that the Maryland courts' rejection of his ineffective assistance claim "involved an unreasonable application of clearly established federal law." Wiggins v. Corcoran, 164 F. Supp. 2d 538, 557 (2001) (citing Williams v. Taylor, 529 U. S. 362 (2000)). The court rejected the State's defense of counsel's "tactical" decision to "'retry519guilt,'" concluding that for a strategic decision to be reasonable, it must be "based upon information the attorney has made after conducting a reasonable investigation." 164 F. Supp. 2d, at 558. The court found that though counsel were aware of some aspects of Wiggins' background, that knowledge did not excuse them from their duty to make a "fully informed and deliberate decision" about whether to present a mitigation case. In fact, the court concluded, their knowledge triggered an obligation to look further. Id., at 559.Reviewing the District Court's decision de novo, the Fourth Circuit reversed, holding that counsel had made a reasonable strategic decision to focus on petitioner's direct responsibility. Wiggins v. Corcoran, 288 F.3d 629, 639-640 (2002). The court contrasted counsel's complete failure to investigate potential mitigating evidence in Williams, 288 F. 3d, at 640, with the fact that Schlaich and N ethercott knew at least some details of Wiggins' childhood from the PSI and social services records, id., at 641. The court acknowledged that counsel likely knew further investigation "would have resulted in more sordid details surfacing," but agreed with the Maryland Court of Appeals that counsel's knowledge of the avenues of mitigation available to them "was sufficient to make an informed strategic choice" to challenge petitioner's direct responsibility for the murder. Id., at 641-642. The court emphasized that conflicting medical testimony with respect to the time of death, the absence of direct evidence against Wiggins, and unexplained forensic evidence at the crime scene supported counsel's strategy. Id., at 641.We granted certiorari, 537 U. S. 1027 (2002), and now reverse.II APetitioner renews his contention that his attorneys' performance at sentencing violated his Sixth Amendment right520to effective assistance of counsel. The amendments to 28 U. S. C. § 2254, enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), circumscribe our consideration of Wiggins' claim and require us to limit our analysis to the law as it was "clearly established" by our precedents at the time of the state court's decision. Section 2254 provides:"(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or"(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."We have made clear that the "unreasonable application" prong of § 2254(d)(1) permits a federal habeas court to "grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts" of petitioner's case. Williams v. Taylor, supra, at 413; see also Bell v. Cone, 535 U. S. 685, 694 (2002). In other words, a federal court may grant relief when a state court has misapplied a "governing legal principle" to "a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U. S. 63, 76 (2003) (citing Williams v. Taylor, supra, at 407). In order for a federal court to find a state court's application of our precedent "unreasonable," the state court's decision must have been more than incorrect or erroneous. See Lockyer, supra, at 75. The state court's appli-521cation must have been "objectively unreasonable." See Williams v. Taylor, 529 U. S., at 409.We established the legal principles that govern claims of ineffective assistance of counsel in Strickland v. Washington, 466 U. S. 668 (1984). An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. Id., at 687. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness." Id., at 688. We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Ibid.In this case, as in Strickland, petitioner's claim stems from counsel's decision to limit the scope of their investigation into potential mitigating evidence. Id., at 673. Here, as in Strickland, counsel attempt to justify their limited investigation as reflecting a tactical judgment not to present mitigating evidence at sentencing and to pursue an alternative strategy instead. In rejecting the respondent's claim, we defined the deference owed such strategic judgments in terms of the adequacy of the investigations supporting those judgments:"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circum-522stances, applying a heavy measure of deference to counsel's judgments." Id., at 690-691.Our opinion in Williams v. Taylor is illustrative of the proper application of these standards. In finding Williams' ineffectiveness claim meritorious, we applied Strickland and concluded that counsel's failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision to focus on Williams' voluntary confessions, because counsel had not "fulfill[ed] their obligation to conduct a thorough investigation of the defendant's background." 529 U. S., at 396 (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1980)). While Williams had not yet been decided at the time the Maryland Court of Appeals rendered the decision at issue in this case, cf. post, at 542 (SCALIA, J., dissenting), Williams' case was before us on habeas review. Contrary to the dissent's contention, post, at 543, we therefore made no new law in resolving Williams' ineffectiveness claim. See Williams, 529 U. S., at 390 (noting that the merits of Williams' claim "are squarely governed by our holding in Strickland"); see also id., at 395 (noting that the trial court correctly applied both components of the Strickland standard to petitioner's claim and proceeding to discuss counsel's failure to investigate as a violation of Strickland's performance prong). In highlighting counsel's duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides, we applied the same "clearly established" precedent of Strickland we apply today. Cf. 466 U. S., at 690-691 (establishing that "thorough investigation[s]" are "virtually unchallengeable" and underscoring that "counsel has a duty to make reasonable investigations"); see also id., at 688-689 ("Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable").In light of these standards, our principal concern in deciding whether Schlaich and Nethercott exercised "reasonable523professional judgmen[t]," id., at 691, is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of Wiggins' background was itself reasonable. Ibid. Cf. Williams v. Taylor, supra, at 415 (O'CONNOR, J., concurring) (noting counsel's duty to conduct the "requisite, diligent" investigation into his client's background). In assessing counsel's investigation, we must conduct an objective review of their performance, measured for "reasonableness under prevailing professional norms," Strickland, 466 U. S., at 688, which includes a context-dependent consideration of the challenged conduct as seen "from counsel's perspective at the time," id., at 689 ("[E]very effort [must] be made to eliminate the distorting effects of hindsight").B 1The record demonstrates that counsel's investigation drew from three sources. App. 490-491. Counsel arranged for William Stejskal, a psychologist, to conduct a number of tests on petitioner. Stejskal concluded that petitioner had an IQ of 79, had difficulty coping with demanding situations, and exhibited features of a personality disorder. Id., at 4445, 349-351. These reports revealed nothing, however, of petitioner's life history. Tr. of Oral Arg. 24-25.With respect to that history, counsel had available to them the written PSI, which included a one-page account of Wiggins' "personal history" noting his "misery as a youth," quoting his description of his own background as "'disgusting,'" and observing that he spent most of his life in foster care. App. 20-21. Counsel also "tracked down" records kept by the Baltimore City Department of Social Services (DSS) documenting petitioner's various placements in the State's foster care system. Id., at 490; Lodging of Petitioner. In describing the scope of counsel's investigation into petitioner's524life history, both the Fourth Circuit and the Maryland Court of Appeals referred only to these two sources of information. See 288 F. 3d, at 640-641; Wiggins v. State, 352 Md., at 608609, 724 A. 2d, at 15.Counsel's decision not to expand their investigation beyond the PSI and the DSS records fell short of the professional standards that prevailed in Maryland in 1989. As Schlaich acknowledged, standard practice in Maryland in capital cases at the time of Wiggins' trial included the preparation of a social history report. App. 488. Despite the fact that the Public Defender's office made funds available for the retention of a forensic social worker, counsel chose not to commission such a report. Id., at 487. Counsel's conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA)-standards to which we long have referred as "guides to determining what is reasonable." Strickland, supra, at 688; Williams v. Taylor, supra, at 396. The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added). Despite these well-defined norms, however, counsel abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Cf. id., 11.8.6, p. 133 (noting that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences (emphasis added)); 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed. 1982) ("The lawyer also has a substantial and important role to perform in raising mitigating factors both to the prosecutor initially and525to the court at sentencing .... Investigation is essential to fulfillment of these functions").The scope of their investigation was also unreasonable in light of what counsel actually discovered in the DSS records. The records revealed several facts: Petitioner's mother was a chronic alcoholic; Wiggins was shuttled from foster home to foster home and displayed some emotional difficulties while there; he had frequent, lengthy absences from school; and, on at least one occasion, his mother left him and his siblings alone for days without food. See Lodging of Petitioner 54-95, 126, 131-136, 140, 147, 159-176. As the Federal District Court emphasized, any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner's background. 164 F. Supp. 2d, at 559. Indeed, counsel uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless; this case is therefore distinguishable from our precedents in which we have found limited investigations into mitigating evidence to be reasonable. See, e. g., Strickland, supra, at 699 (concluding that counsel could "reasonably surmise ... that character and psychological evidence would be of little help"); Burger v. Kemp, 483 U. S. 776, 794 (1987) (concluding counsel's limited investigation was reasonable because he interviewed all witnesses brought to his attention, discovering little that was helpful and much that was harmful); Darden v. Wainwright, 477 U. S. 168, 186 (1986) (concluding that counsel engaged in extensive preparation and that the decision to present a mitigation case would have resulted in the jury hearing evidence that petitioner had been convicted of violent crimes and spent much of his life in jail). Had counsel investigated further, they might well have discovered the sexual abuse later revealed during state postconviction proceedings.526The record of the actual sentencing proceedings underscores the unreasonableness of counsel's conduct by suggesting that their failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment. Counsel sought, until the day before sentencing, to have the proceedings bifurcated into a retrial of guilt and a mitigation stage. See supra, at 515. On the eve of sentencing, counsel represented to the court that they were prepared to come forward with mitigating evidence, App. 45, and that they intended to present such evidence in the event the court granted their motion to bifurcate. In other words, prior to sentencing, counsel never actually abandoned the possibility that they would present a mitigation defense. Until the court denied their motion, then, they had every reason to develop the most powerful mitigation case possible.What is more, during the sentencing proceeding itself, counsel did not focus exclusively on Wiggins' direct responsibility for the murder. After introducing that issue in her opening statement, id., at 70-71, Nethercott entreated the jury to consider not just what Wiggins "is found to have done," but also "who [he] is." Id., at 70. Though she told the jury it would "hear that Kevin Wiggins has had a difficult life," id., at 72, counsel never followed up on that suggestion with details of Wiggins' history. At the same time, counsel called a criminologist to testify that inmates serving life sentences tend to adjust well and refrain from further violence in prison-testimony with no bearing on whether petitioner committed the murder by his own hand. Id., at 311-312. Far from focusing exclusively on petitioner's direct responsibility, then, counsel put on a halfhearted mitigation case, taking precisely the type of " 'shotgun'" approach the Maryland Court of Appeals concluded counsel sought to avoid. Wiggins v. State, 352 Md., at 609, 724 A. 2d, at 15. When viewed in this light, the "strategic decision" the state courts and respondents all invoke to justify counsel's limited pursuit of mitigating evidence resembles more a post hoc rationaliza-527tion of counsel's conduct than an accurate description of their deliberations prior to sentencing.In rejecting petitioner's ineffective assistance claim, the Maryland Court of Appeals appears to have assumed that because counsel had some information with respect to petitioner's background-the information in the PSI and the DSS records-they were in a position to make a tactical choice not to present a mitigation defense. Id., at 611-612, 724 A. 2d, at 17 (citing federal and state precedents finding ineffective assistance in cases in which counsel failed to conduct an investigation of any kind). In assessing the reasonableness of an attorney's investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Even assuming Schlaich and Nethercott limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy. 466 U. S., at 691.The Maryland Court of Appeals' application of Strickland's governing legal principles was objectively unreasonable. Though the state court acknowledged petitioner's claim that counsel's failure to prepare a social history "did not meet the minimum standards of the profession," the court did not conduct an assessment of whether the decision to cease all investigation upon obtaining the PSI and the DSS records actually demonstrated reasonable professional judgment. Wiggins v. State, 352 Md., at 609, 724 A. 2d, at 16. The state court merely assumed that the investigation was adequate. In light of what the PSI and the DSS records actually revealed, however, counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy528impossible. The Court of Appeals' assumption that the investigation was adequate, ibid., thus reflected an unreasonable application of Strickland. 28 U. S. C. § 2254(d)(1). As a result, the court's subsequent deference to counsel's strategic decision not "to present every conceivable mitigation defense," 352 Md., at 610, 724 A. 2d, at 16, despite the fact that counsel based this alleged choice on what we have made clear was an unreasonable investigation, was also objectively unreasonable. As we established in Strickland, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U. S., at 690-691.Additionally, the court based its conclusion, in part, on a clear factual error-that the "social service records ... recorded incidences of ... sexual abuse." 352 Md., at 608-609, 724 A. 2d, at 15. As the State and the United States now concede, the records contain no mention of sexual abuse, much less of the repeated molestations and rapes of petitioner detailed in the Selvog report. Brief for Respondents 22; Brief for United States as Amicus Curiae 26; App. to Pet. for Cert. 175a-179a, 190a. The state court's assumption that the records documented instances of this abuse has been shown to be incorrect by "clear and convincing evidence," 28 U. S. C. § 2254(e)(1), and reflects "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). This partial reliance on an erroneous factual finding further highlights the unreasonableness of the state court's decision.The dissent insists that this Court's hands are tied, under § 2254(d), "by the state court's factual determinations that Wiggins' trial counsel 'did investigate and were aware of [Wiggins'] background,'" post, at 550. But as we have made clear, the Maryland Court of Appeals' conclusion that the scope of counsel's investigation into petitioner's background met the legal standards set in Strickland repre-529sented an objectively unreasonable application of our precedent. § 2254(d)(1). Moreover, the court's assumption that counsel learned of a major aspect of Wiggins' background, i. e., the sexual abuse, from the DSS records was clearly erroneous. The requirements of § 2254(d) thus pose no bar to granting petitioner habeas relief.2In their briefs to this Court, the State and the United States contend that counsel, in fact, conducted a more thorough investigation than the one we have just described. This conclusion, they explain, follows from Schlaich's postconviction testimony that he knew of the sexual abuse Wiggins suffered, as well as of the hand-burning incident. According to the State and its amicus, the fact that counsel claimed to be aware of this evidence, which was not in the social services records, coupled with Schlaich's statement that he knew what was in "other people's reports," App. 490491, suggests that counsel's investigation must have extended beyond the social services records. Tr. of Oral Arg. 31-36; Brief for United States as Amicus Curiae 26-27, n. 4; Brief for Respondents 35. Schlaich simply "was not asked to and did not reveal the source of his knowledge" of the abuse. Brief for United States as Amicus Curiae 27, n. 4.In considering this reading of the state postconviction record, we note preliminarily that the Maryland Court of Appeals clearly assumed both that counsel's investigation began and ended with the PSI and the DSS records and that this investigation was sufficient in scope to satisfy Strickland's reasonableness requirement. See Wiggins v. State, 352 Md., at 608, 724 A. 2d, at 15. The court also assumed, erroneously, that the social services records cited incidences of sexual abuse. See id., at 608-609, 724 A. 2d, at 15. Respondents' interpretation of Schlaich's postconviction testimony therefore has no bearing on whether the Maryland Court of530Appeals' decision reflected an objectively unreasonable application of Strickland.In its assessment of the Maryland Court of Appeals' opinion, the dissent apparently does not dispute that if counsel's investigation in this case had consisted exclusively of the PSI and the DSS records, the court's decision would have constituted an unreasonable application of Strickland. See post, at 543-544. Of necessity, then, the dissent's primary contention is that the Maryland Court of Appeals did decide that Wiggins' counsel looked beyond the PSI and the DSS records and that we must therefore defer to that finding under § 2254(e)(1). See post, at 544-551. Had the court found that counsel's investigation extended beyond the PSI and the DSS records, the dissent, of course, would be correct that § 2254(e) would require that we defer to that finding. But the state court made no such finding.The dissent bases its conclusion on the Maryland Court of Appeals' statements that" '[c]ounsel were aware that appellant had a most unfortunate childhood,'" and that" 'counsel did investigate and were aware of appellant's background.'" See post, at 540, 545 (quoting Wiggins v. State, supra, at 608, 610, 724 A. 2d, at 15, 16). But the state court's description of how counsel learned of petitioner's childhood speaks for itself. The court explained: "Counsel were aware that appellant had a most unfortunate childhood. Mr. Schlaich had available to him not only the pre-sentence investigation report ... but also more detailed social service records." See 352 Md., at 608-609, 724 A. 2d, at 15. This construction reflects the state court's understanding that the investigation consisted of the two sources the court mentions. Indeed, when describing counsel's investigation into petitioner's background, the court never so much as implies that counsel uncovered any source other than the PSI and the DSS records. The court's conclusion that counsel were aware of "incidences of ... sexual abuse" does not suggest otherwise, cf. supra, at 518, because the court assumed that counsel531learned of such incidents from the social services records. Wiggins v. State, 352 Md., at 608-609, 724 A. 2d, at 15.The court's subsequent statement that, "as noted, counsel did investigate and were aware of appellant's background," underscores our conclusion that the Maryland Court of Appeals assumed counsel's investigation into Wiggins' childhood consisted of the PSI and the DSS records. The court's use of the phrase "as noted," which the dissent ignores, further confirms that counsel's investigation consisted of the sources previously described, i. e., the PSI and the DSS records. It is the dissent, therefore, that "rests upon a fundamental fallacy," post, at 544-that the Maryland Court of Appeals determined that Schlaich's investigation extended beyond the PSI and the DSS records.We therefore must determine, de novo, whether counsel reached beyond the PSI and the DSS records in their investigation of petitioner's background. The record as a whole does not support the conclusion that counsel conducted a more thorough investigation than the one we have described. The dissent, like the State and the United States, relies primarily on Schlaich's postconviction testimony to establish that counsel investigated more extensively. But the questions put to Schlaich during his postconviction testimony all referred to what he knew from the social services records; the line of questioning, after all, first directed him to his discovery of those documents. His subsequent reference to "other people's reports," made in direct response to a question concerning petitioner's mental retardation, appears to be an acknowledgment of the psychologist's reports we know counsel commissioned-reports that also revealed nothing of the sexual abuse Wiggins experienced. App. 349. As the state trial judge who heard this testimony concluded at the close of the proceedings, there is "no reason to believe that [counsel] did have all of this information." Id., at 606 (emphasis added).532The State maintained at oral argument that Schlaich's reference to "other people's reports" indicated that counsel learned of the sexual abuse from sources other than the PSI and the DSS records. Tr. of Oral Arg. 31, 33, 35. But when pressed repeatedly to identify the sources counsel might have consulted, the State acknowledged that no written reports documented the sexual abuse and speculated that counsel must have learned of it through "[o]ral reports" from Wiggins himself. Id., at 36. Not only would the phrase "other people's reports" have been an unusual way for counsel to refer to conversations with his client, but the record contains no evidence that counsel ever pursued this line of questioning with Wiggins. See id., at 24-25. For its part, the United States emphasized counsel's retention of the psychologist. Id., at 51; Brief for United States as Amicus Curiae 27. But again, counsel's decision to hire a psychologist sheds no light on the extent of their investigation into petitioner's social background. Though Stejskal based his conclusions on clinical interviews with Wiggins, as well as meetings with Wiggins' family members, Lodging of Petitioner, his final report discussed only petitioner's mental capacities and attributed nothing of what he learned to Wiggins' social history.To further underscore that counsel did not know, prior to sentencing, of the sexual abuse, as well as of the other incidents not recorded in the DSS records, petitioner directs us to the content of counsel's October 17, 1989, proffer. Before closing statements and outside the presence of the jury, Schlaich proffered to the court the mitigation case counsel would have introduced had the court granted their motion to bifurcate. App. 349-351. In his statement, Schlaich referred only to the results of the psychologist's test and mentioned nothing of Wiggins' troubled background. Given that the purpose of the proffer was to preserve their pursuit of bifurcation as an issue for appeal, they had every incentive to make their mitigation case seem as strong as possible.533Counsel's failure to include in the proffer the powerful evidence of repeated sexual abuse is therefore explicable only if we assume that counsel had no knowledge of the abuse.Contrary to the dissent's claim, see post, at 547, we are not accusing Schlaich of lying. His statements at the postconviction proceedings that he knew of this abuse, as well as of the hand-burning incident, may simply reflect a mistaken memory shaped by the passage of time. After all, the state postconviction proceedings took place over four years after Wiggins' sentencing. Ultimately, given counsel's likely ignorance of the history of sexual abuse at the time of sentencing, we cannot infer from Schlaich's postconviction testimony that counsel looked further than the PSI and the DSS records in investigating petitioner's background. Indeed, the record contains no mention of sources other than those it is undisputed counsel possessed, see supra, at 523-524. We therefore conclude that counsel's investigation of petitioner's background was limited to the PSI and the DSS records.3In finding that Schlaich and Nethercott's investigation did not meet Strickland's performance standards, we emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the "constitutionally protected independence of counsel" at the heart of Strickland. 466 U. S., at 689. We base our conclusion on the much more limited principle that "strategic choices made after less than complete investigation are reasonable" only to the extent that "reasonable professional judgments support the limitations on investigation." Id., at 690-691. A decision not to investigate thus "must be directly assessed for reasonableness in all the circumstances." Id., at 691.534Counsel's investigation into Wiggins' background did not reflect reasonable professional judgment. Their decision to end their investigation when they did was neither consistent with the professional standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the social services records-evidence that would have led a reasonably competent attorney to investigate further. Counsel's pursuit of bifurcation until the eve of sentencing and their partial presentation of a mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned strategic judgment. In deferring to counsel's decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland. Furthermore, the court partially relied on an erroneous factual assumption. The requirements for habeas relief established by 28 U. S. C. § 2254(d) are thus satisfied.IIIIn order for counsel's inadequate performance to constitute a Sixth Amendment violation, petitioner must show that counsel's failures prejudiced his defense. Strickland, 466 U. S., at 692. In Strickland, we made clear that, to establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694. In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence. In this case, our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.The mitigating evidence counsel failed to discover and present in this case is powerful. As Selvog reported based on his conversations with Wiggins and members of his fam-535ily, see Reply Brief for Petitioner 18-19, Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time Wiggins spent homeless, along with his diminished mental capacities, further augment his mitigation case. Petitioner thus has the kind of troubled history we have declared relevant to assessing a defendant's moral culpability. Penry v. Lynaugh, 492 U. S. 302, 319 (1989) (" '[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ... may be less culpable than defendants who have no such excuse' "); see also Eddings v. Oklahoma, 455 U. S. 104, 112 (1982) (noting that consideration of the offender's life history is a "'part of the process of inflicting the penalty of death' "); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (invalidating Ohio law that did not permit consideration of aspects of a defendant's background).Given both the nature and the extent of the abuse petitioner suffered, we find there to be a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing in an admissible form. While it may well have been strategically defensible upon a reasonably thorough investigation to focus on Wiggins' direct responsibility for the murder, the two sentencing strategies are not necessarily mutually exclusive. Moreover, given the strength of the available evidence, a reasonable attorney might well have chosen to prioritize the mitigation case over the direct responsibility challenge, particularly given that Wiggins' history contained little of the double edge we have found to justify limited investigations in other cases. Cf. Burger v. Kemp, 483 U. S. 776 (1987); Darden v. Wainwright, 477 U. S. 168 (1986).536The dissent nevertheless maintains that Wiggins' counsel would not have altered their chosen strategy of focusing exclusively on Wiggins' direct responsibility for the murder. See post, at 553-554. But as we have made clear, counsel were not in a position to make a reasonable strategic choice as to whether to focus on Wiggins' direct responsibility, the sordid details of his life history, or both, because the investigation supporting their choice was unreasonable. See supra, at 524-527. Moreover, as we have noted, see supra, at 526, Wiggins' counsel did not focus solely on Wiggins' direct responsibility. Counsel told the sentencing jury "[y]ou're going to hear that Kevin Wiggins has had a difficult life," App. 72, but never followed up on this suggestion.We further find that had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence. In reaching this conclusion, we need not, as the dissent suggests, post, at 554-556, make the state-law evidentiary findings that would have been at issue at sentencing. Rather, we evaluate the totality of the evidence-"both that adduced at trial, and the evidence adduced in the habeas proceeding[s]." Williams v. Taylor, 529 U. S., at 397-398 (emphasis added).In any event, contrary to the dissent's assertion, it appears that Selvog's report may have been admissible under Maryland law. In Whittlesey v. State, 340 Md. 30, 665 A. 2d 223 (1995), the Maryland Court of Appeals vacated a trial court decision excluding, on hearsay grounds, testimony by Selvog himself. The court instructed the trial judge to exercise its discretion to admit "any relevant and reliable mitigating evidence, including hearsay evidence that might not be admissible in the guilt-or-innocence phase of the trial." Id., at 73, 665 A. 2d, at 244. This "relaxed standard," the court observed, would provide the factfinder with "the opportunity to consider 'any aspect of a defendant's character or record ... that the defendant proffers as a basis for a sentence less537than death.'" Ibid. See also Ball v. State, 347 Md. 156, 172-173, 699 A. 2d 1170, 1177 (1997) (noting that the trial judge had admitted Selvog's social history report on the defendant). While the dissent dismisses the contents of the social history report, calling Wiggins a "liar" and his claims of sexual abuse "uncorroborated gossip," post, at 554, 555, Maryland appears to consider this type of evidence relevant at sentencing, see Whittlesey, supra, at 71, 665 A. 2d, at 243 ("The reasons for relaxing the rules of evidence apply with particular force in the death penalty context"). Not even the State contests that Wiggins suffered from the various types of abuse and neglect detailed in the PSI, the DSS records, and Selvog's social history report.Wiggins' sentencing jury heard only one significant mitigating factor-that Wiggins had no prior convictions. Had the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance. Cf. Borchardt v. State, 367 Md. 91, 139-140, 786 A. 2d 631, 660 (2001) (noting that as long as a single juror concludes that mitigating evidence outweighs aggravating evidence, the death penalty cannot be imposed); App. 369 (instructing the jury: "If you unanimously find that the State has proven by a preponderance of the evidence that the aggravating circumstance does outweigh the mitigating circumstances, then consider whether death is the appropriate sentence").Moreover, in contrast to the petitioner in Williams v. Taylor, supra, Wiggins does not have a record of violent conduct that could have been introduced by the State to offset this powerful mitigating narrative. Cf. id., at 418 (REHNQUIST, C. J., dissenting) (noting that Williams had savagely beaten an elderly woman, stolen two cars, set fire to a home, stabbed a man during a robbery, and confessed to choking two inmates and breaking a fellow prisoner's jaw). As the Federal District Court found, the mitigating evidence in this case is538stronger, and the State's evidence in support of the death penalty far weaker, than in Williams, where we found prejudice as the result of counsel's failure to investigate and present mitigating evidence. Id., at 399. We thus conclude that the available mitigating evidence, taken as a whole, "might well have influenced the jury's appraisal" of Wiggins' moral culpability. Id., at 398. Accordingly, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusWIGGINS v. SMITH, WARDEN, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo.02-311. Argued March 24, 2003-Decided June 26, 2003In 1989, petitioner Wiggins was convicted of capital murder by a Maryland judge and subsequently elected to be sentenced by a jury. His public defenders, Schlaich and Nethercott, moved to bifurcate the sentencing, representing that they planned to prove that Wiggins did not kill the victim by his own hand and then, if necessary, to present a mitigation case. The court denied the motion. At sentencing, Nethercott told the jury in her opening statement that they would hear, among other things, about Wiggins' difficult life, but such evidence was never introduced. Before closing arguments and outside the presence of the jury, Schlaich made a proffer to the court to preserve the bifurcation issue for appeal, detailing the mitigation case counsel would have presented. Schlaich never mentioned Wiggins' life history or family background. The jury sentenced Wiggins to death, and the Maryland Court of Appeals affirmed. Represented by new counsel, Wiggins sought postconviction relief, arguing that his trial counsel had rendered ineffective assistance by failing to investigate and present mitigating evidence of his dysfunctional background. He presented expert testimony by a forensic social worker about the severe physical and sexual abuse he had suffered at the hands of his mother and while under the care of a series of foster parents. Schlaich testified that he did not remember retaining a forensic social worker to prepare a social history before sentencing, even though state funds were available for that purpose, and explained that he and N ethercott had decided to focus on retrying the factual case and disputing Wiggins' direct responsibility for the murder. The trial court denied the petition, and the State Court of Appeals affirmed, concluding that trial counsel had made a reasoned choice to proceed with what they considered their best defense. Subsequently, the Federal District Court granted Wiggins relief on his federal habeas petition, holding that the Maryland courts' rejection of his ineffective assistance claim involved an unreasonable application of clearly established federal law. In reversing, the Fourth Circuit found trial counsel's strategic decision to focus on Wiggins' direct responsibility to be reasonable.Held: The performance of Wiggins' attorneys at sentencing violated his Sixth Amendment right to effective assistance of counsel. Pp. 519-538.511(a) A federal writ can be granted only if a state court decision "was contrary to, or involved an unreasonable application of, clearly established" precedents of this Court. 28 U. S. C. § 2254(d)(1). This "unreasonable application" prong permits the writ to be granted when a state court identifies the correct governing legal principle but unreasonably applies it to the facts of a petitioner's case. Williams v. Taylor, 529 U. S. 362,413. For this standard to be satisfied, the state court decision must have been "objectively unreasonable," id., at 409, not just incorrect or erroneous. An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687. Performance is deficient if it falls below an objective standard of reasonableness, which is defined in terms of prevailing professional norms. Id., at 688. Here, as in Strickland, counsel claim that their limited investigation into petitioner's background reflected a tactical judgment not to present mitigating evidence and to pursue an alternative strategy instead. In evaluating petitioner's claim, this Court's principal concern is not whether counsel should have presented a mitigation case, but whether the investigation supporting their decision not to introduce mitigating evidence of Wiggins' background was itselfreasonable. The Court thus conducts an objective review of their performance, measured for reasonableness under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time of that conduct. Id., at 688, 689. Pp. 519-523.(b) Counsel did not conduct a reasonable investigation. Their decision not to expand their investigation beyond a presentence investigation (PSI) report and Baltimore City Department of Social Services (DSS) records fell short of the professional standards prevailing in Maryland in 1989. Standard practice in Maryland capital cases at that time included the preparation of a social history report. Although there were funds to retain a forensic social worker, counsel chose not to commission a report. Their conduct similarly fell short of the American Bar Association's capital defense work standards. Moreover, in light of the facts counsel discovered in the DSS records concerning Wiggins' alcoholic mother and his problems in foster care, counsel's decision to cease investigating when they did was unreasonable. Any reasonably competent attorney would have realized that pursuing such leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of aggravating factors from Wiggins' background. Indeed, counsel discovered no evidence to suggest that a mitigation case would have been counterproductive or that further investigation would have been fruitless, thus distinguishing this case512Full Text of Opinion

1966_4

MR. JUSTICE DOUGLAS delivered the opinion of the Court.When this case was here the last time, [Footnote 1] we held that the acquisition of Pacific Northwest Pipeline Corporation by El Paso Natural Gas Company violated § 7 of the Clayton Act, and we directed the District Court "to order divestiture without delay." United States v. El Paso Natural Gas Co., 376 U. S. 651, 376 U. S. 662. That was on April 6, 1964. It is now nearly three years later, and, as we shall see, no divestiture in any meaningful sense has been directed. The United States, now an appellee, maintains that the issues respecting divestiture are not Page 386 U. S. 132 before us. The threshold question does indeed involve another matter. Appellants were denied intervention by the District Court, and came here by way of appeal, 32 Stat. 823, 15 U.S.C. § 29. We noted probable jurisdiction. 382 U.S. 970.IThe initial question concerning intervention turns on a construction of Rule 24(a) of the Federal Rules of Civil Procedure, entitled "Intervention of Right." At the time the District Court ruled on the motions, that Rule provided, in relevant part,"Upon timely application anyone shall be permitted to intervene in an action . . . (3) when the applicant is so situated as to be adversely affected by . . . disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof."As amended effective July 1, 1966, subsequent to the time these motions to intervene were denied, Rule 24(a)(2) provides that there may be intervention of right"when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."California, one of the appellants, is a State where El Paso sells most of its gas, and its purpose in intervening was to assure that Pacific Northwest, illegally merged with El Paso, or its successor, would be restored as an effective competitor in California. As we noted in the prior opinion, Pacific Northwest had been "a substantial factor in the California market at the time it was acquired by El Paso." 376 U.S. at 376 U. S. 658. It was to restore that "competitive factor" that divestiture was ordered. Id. at 376 U. S. 658-662. Southern California Edison, another Page 386 U. S. 133 appellant, is a large industrial user of natural gas purchasing from El Paso sources and desirous of retaining competition in California. Cascade Natural Gas is a distributor in Oregon and Washington, and its sole supplier of natural gas was Pacific Northwest, and will be the New Company created under the divestiture plan. Cascade maintains that there has been a grossly unfair division of gas reserves between El Paso and the New Company, particularly in the southwest field known as the San Juan Basin. Moreover, the District Court approved contracts between El Paso and the New Company for delivery of gas both from Canada and from the San Juan Basin, and allowed El Paso, unilaterally and without application to the Federal Power Commission, to saddle new and allegedly onerous prices and other conditions on the New Company. Moreover, the stock of West Coast Transmission Co., Ltd., was ordered sold for the benefit of El Paso. Pacific Northwest had owned about a fourth of West Coast Transmission's stock, and that ownership gave Pacific Northwest, it is said, special insight into and access to the Canadian gas supply. These factors, implicating the ability of Pacific Northwest to perform in the future, give Cascade, it is argued, standing to intervene.Under old Rule 24(a)(3), those "adversely affected" by a disposition of property would usually be those who have an interest in the property. [Footnote 2] But we cannot read it to mean exclusively that group.Rule 24(a)(3) was not merely a restatement of existing federal practice at law and in equity. If it had been, there would be force in the argument that the rigidity of the older cases remains unaltered, restricting intervention as of right very narrowly, as, for example, where there is a fund in court to which a third party asserts Page 386 U. S. 134 a right that would be lost absent intervention. Credits Commutation Co. v. United States, 177 U. S. 311, 177 U. S. 316; Central Trust Co. v. Chicago, R.I. & P. R. Co., 218 F. 336, 339. But the Advisory Committee stated that Rule 24 "amplifies and restates the present federal practice at law and in equity." We therefore know that some elasticity was injected, [Footnote 3] and the question is, how much. As stated by the Court of Appeals for the Second Circuit in the Central Trust Co. case, "It is not always easy to draw the line." Ibid.In Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, a consent decree was entered in an antitrust suit, designed to protect Panhandle from Columbia which had acquired domination of the former to stifle Page 386 U. S. 135 its competition. The decree sought to assure opportunities for competition by Panhandle. A security holder of Panhandle sought to intervene on Panhandle's behalf when the consent decree was reopened, and was denied that right. We reversed, noting at the outset that"the circumstances under which interested outsiders should be allowed to become participants in a litigation is, barring very special circumstances, a matter for the nisi prius court. But where the enforcement of a public law also demands distinct safeguarding of private interests by giving them a formal status in the decree, the power to enforce rights thus sanctioned is not left to the public authorities nor put in the keeping of the district court's discretion."Id. at 312 U. S. 506.We noted that Panhandle's economic independence was "at the heart of the controversy." Ibid. In the present case, protection of California interests in a competitive system was at the heart of our mandate directing divestiture. For it was the absorption of Pacific Northwest by El Paso that stifled that competition and disadvantaged the California interests. It was indeed their interests, as part of the public interest in a competitive system, that our mandate was designed to protect. In that sense, the present case is very close to Pipe Line Co. Apart from that, but in the spirit of Pipe Line Co., we think that California and Southern California Edison qualify as intervenors under Rule 24(a)(3). Certainly these two appellants are "so situated" geographically as to be "adversely affected" within the meaning of Rule 24(a)(3) by a merger that reduces the competitive factor in natural gas available to Californians. We conclude that it was error to deny them intervention. We need not decide whether Cascade could have intervened as of right under that Rule. For there is now in effect a new version of Rule 24(a) which, in subsection (2), recognizes as a proper element in intervention "an interest" in the "transaction which is the subject of the action." This Rule applies to Page 386 U. S. 136 "further proceedings" in pending actions. 383 U.S. 1031. Since the entire merits of the case must be reopened to give California and Southern California Edison an opportunity to be heard as of right as intervenors, we conclude that the new Rule 24(a)(2) is broad enough to include Cascade also, and, as we shall see, the "existing parties" have fallen far short of representing its interests. We therefore reverse the District Court in each of these appeals, and remand with directions to allow each appellant to intervene as of right to vacate the order of divestiture and to have de novo hearings on the type of divestiture we envisioned and made plain in our opinion in 376 U. S. 376 U.S. 651.IIThe necessity for new hearings needs a word of explanation.The United States on oral argument stated that the decree to which it agreed and which it urges us to approve was made in "settlement" of the litigation. We do not question the authority of the Attorney General to settle suits after, as well as before, they reach here. The Department of Justice, however, by stipulation or otherwise has no authority to circumscribe the power of the courts to see that our mandate is carried out. No one except this Court has authority to alter or modify our mandate. United States v. du Pont & Co., 366 U. S. 316, 366 U. S. 325. Our direction was that the District Court provide for "divestiture without delay." That mandate, in the context of the opinion, plainly meant that Pacific Northwest or a new company be at once restored to a position where it could compete with El Paso in the California market.We do not undertake to write the decree. But we do suggest guidelines that should be followed:(1) Gas Reserves. The gas reserves granted the New Company must be no less in relation to present existing Page 386 U. S. 137 reserves than Pacific Northwest had when it was independent, and the new gas reserves developed since the merger must be equitably divided between El Paso and the New Company. We are told by the intervenors that El Paso gets the new reserves in the San Juan Basin -- which, due to their geographical propinquity to California, are critical to competition in that market. But the merged company, which discovered them, represented the interests both of El Paso and of Pacific Northwest. We do not know what an equitable division would require. Hearings are necessary, followed by meticulous findings made in light of the competitive requirements to which we have adverted.As already indicated, the proposed decree provides the terms of contracts [Footnote 4] imposed on the New Company respecting the purchase and gathering of gas from various sources. It is urged that these contracts are onerous, detrimental to the New Company, and partial to El Paso interests. We do not pass upon the wisdom or desirability of the proposed contracts. It is enough to note that they were proposed by El Paso, that the changes, reluctantly acceded to by the Government, will redound to the substantial benefit of El Paso, and that the New Company has had no opportunity to evaluate the advisability of the terms or to negotiate for better terms. Nor has the Federal Power Commission had the opportunity to pass Page 386 U. S. 138 upon the contracts. The terms of these contracts should be negotiated by the New Company under such restrictions as the Natural Gas Act may impose.(2) Financial Aspects. As noted, El Paso is allowed to sell the stock of West Coast Transmission Co., Ltd., brought into the merger by Pacific Northwest, and keep the proceeds, which, if stock prices at the time of the proposed divestiture are considered, might result, it is alleged, in a profit of $10,000,000 or more, while the New Company gets the stock of Northwest Production Co., which, from 1960-1963, showed heavy losses. It is charged that, by the proposed decree, El Paso is saving the cream for itself and foisting the "cats and dogs" on the New Company. It is also earnestly argued that the New Company will sorely need the valuable and fairly liquid stock of West Coast Transmission if it is to have the working capital necessary to restore the competitive balance that the merger destroyed. These are highly relevant arguments. Certainly a plan of divestiture of the kind we envisaged must establish a New Company in the same or comparable competitive position that Pacific Northwest was in when the illegal merger obliterated it.It is also pointed out that some $53,000,000 of taxable losses which Pacific Northwest had were utilized by El Paso during the years following the ill-starred merger. It is argued that, since these tax loss carry-overs were, in a real sense, an asset of Pacific Northwest utilized by El Paso, the New Company should receive other assets or a reduction in debt of equivalent value. These allegations, if proven, require remuneration of some kind to the New Company. For it must be a viable, healthy unit, as able to compete as Pacific Northwest was when it was acquired by El Paso.(3) Control of El Paso. The divestiture decree provides that El Paso is to cause the formation of the New Company, whose chief executive shall be approved by Page 386 U. S. 139 El Paso, the Government, and the court. The new company is to file an application with the Federal Power Commission "at the earliest practicable date" requesting the issuance of a certificate of public convenience and necessity authorizing it to acquire, own, and operate the properties to be received from El Paso. [Footnote 5] When the necessary certificates, authorizations, and orders are obtained from the FPC, El Paso is to transfer to the New Company the properties and assets set forth in the plan of divestiture, generally those which El Paso received from Pacific Northwest. In return, the New Company is to assume certain of El Paso's indebtedness and issue to El Paso all its common stock. El Paso is to transfer the New Company stock to the New Company's chief executive, as voting trustee. The New Company's chief executive shall release the stock only in accordance with the plan for divestment of El Paso's interest in the stock. Under the plan, El Paso is ordered completely to divest itself of all interest in the New Company stock within three years after the transfer of the assets to the New Company. Alternate methods of divestment are provided. (1) El Paso may, within 18 months of the transfer, distribute at least 80% of the shares to holders of El Paso common stock who are willing to exchange their El Paso shares for New Company shares, and who shall own no other El Paso shares immediately after the exchange. The remainder of New Company stock would be disposed of by a public offering. (2) If El Paso does not dispose of the New Company stock under the first alternative, it is to dispose of the New Company stock "by one or more sales to the public." At such public offering, no El Paso officer or director and no owner of El Paso's capital stock, Page 386 U. S. 140 in excess of one-half of one percent of the total shares outstanding, shall be permitted to purchase New Company stock. [Footnote 6]Thus, the El Paso-Pacific Northwest combination will not begin to be severed until the regulatory approvals have been obtained. Complete divestiture is not required until three years after the transfer of assets. An earlier divestiture is permissible, but divestiture is mandatory only after three years. During the interregnum between the entry of the decree and the regulatory approvals and between the transfer of assets and El Paso's eventual disposition of the New Company stock, El Paso will continue to reap the benefits of the illegal combination. Moreover, prior to the eventual disposition of the New Company stock, all the stock is to be voted by the New Company's chief executive. The chief executive is to be approved by El Paso, and El Paso is the beneficial owner of the stock to be voted by him. Even though the chief executive is subject to the ultimate control and supervision of the District Court, there is danger that he may vote the New Company stock in a manner calculated to perpetuate the very conditions which led us to order severance of the illegal combination.Even after the mandatory disposition of the new company stock, there is considerable danger that El Paso interests may end up controlling the New Company. The decree, to be sure, provides that neither El Paso officers and directors nor owners of more than one-half of one percent of El Paso stock shall purchase New Company stock at a public offering. But the decree does not prohibit Page 386 U. S. 141 members of the families of such prohibited purchasers from obtaining New Company stock. Further, under the terms of the decree, it would be possible for a group of El Paso stockholders, each with less than one-half of one percent of El Paso stock, to acquire at the initial public offering enough New Company stock substantially to influence or even to dominate the New Company. Or such a group could combine with the families of prohibited purchasers in order to control the New Company. After the exchange or public offering, there is no restriction on the number of New Company shares El Paso shareholders may acquire. Thus, there is a danger that major El Paso stockholders may, subsequent to the exchange or public offering, purchase large blocks of New Company stock and obtain effective control. Thus, there has been no studied attempt to ensure the swift severance of the illegal combination or to make sure that the New Company's stock does not end up controlled by El Paso interests. Disposition of all of the stock with all convenient speed is necessary, and conditions must be imposed to make sure that El Paso interests do not acquire a controlling interest. For if they do, the New Company might well be only El Paso under the masquerade of a beard.The proposed decree bypasses completely the prospect of an outright purchase of the assets of the New Company or its stock by outside interests. Two purchasers apparently are anxious and eager, and before the United States knuckled under to El Paso and "settled" this litigation, it represented to the District Court that a "sale to a third party is both a desirable and possible alternative to the El Paso plan." No alternative of that kind was chosen. El Paso carried the day, obtained a decree that promises to perpetuate, rather than terminate, this unlawful merger, and that threatens to turn loose on the Page 386 U. S. 142 public a New Company unable to maintain the competitive role that Pacific Northwest filled before this illegal transaction took place.The convenience of El Paso would be the easier choice. The enforcement of our mandate and § 7 of the Clayton Act is the harder one; but that is the criterion we follow.The evil with which the proposed decree is permeated reflects the attitude or philosophy of the District Court which was frankly stated after our remand as follows:"The Court: You see, what this plan proposes is a division of the country, a division of the market, a division of the reserves, one area to New Company and another area to El Paso. That's what the root of this plan is.""Now, if you're going to get New Company down here in competition in Southern California from the San Juan Basin, you'd upset the whole scheme. To even that situation up, you're going to have to put El Paso up in the Northwest in competition there, and that's a kind of ridiculous thing -- long pipelines from these various sources.""It seems to me to make a lot of sense that New Company operating in the Northwest from very much closer Canadian reserves, and Northwest reserves, and El Paso down in the Southwest, with reserves in the San Juan Basin, serving the Southern California area, among some other areas. That seems to me to make a lot of sense."The proposed decree in its various ramifications does precisely that. It therefore does the opposite of what our prior opinion and mandate commanded. Once more, and nearly three years after we first spoke, we reverse and remand, with directions that there be divestiture without delay and that the Chief Judge of the Circuit or the Judicial Council of the Circuit (28 U.S.C. § 332) Page 386 U. S. 143 assign a different District Judge to hear the case. Cf. United States v. Hatahley, 257 F.2d 920, 926, and its sequel, United States v. Ritter, 273 F.2d 30, 32; Occidental Petroleum Corp. v. Chandler, 303 F.2d 55, 57; Texaco, Inc. v. Chandler, 354 F.2d 655, 657.Reversed

U.S. Supreme CourtCascade Nat. Gas Corp. v. El Paso Nat. Gas Co., 386 U.S. 129 (1967)Cascade Natural Gas Corp. v. El Paso Natural Gas Co.No. 4Argued January 12, 1967Decided February 27, 1967*386 U.S. 129SyllabusAlmost three years ago, this Court directed the District Court to order "without delay" that appellee El Paso Natural Gas Co. divest itself of the Pacific Northwest Pipeline Corp., whose acquisition by El Paso was found to have violated § 7 of the Clayton Act. United States v. El Paso Natural Gas Co., 376 U. S. 651, 376 U. S. 662. Following remand, leave was unsuccessfully sought under Rule 24(a) of the Federal Rules of Civil Procedure to intervene in the divestiture proceedings by various parties, including appellants, the State of California, where El Paso sells most of its gas; Southern California Edison, a large industrial natural gas user in California, and Cascade Natural Gas, a distributor in Oregon and Washington, whose sole supplier of natural gas was Pacific Northwest. Rule 24(a)(3) then provided for intervention of right when the applicant is "so situated" as to be "adversely affected by . . . disposition of property" under court control. Amended Rule 24(a)(2), which became effective after the intervention motions were denied, provides for intervention of right"when the applicant claims an interest relating to the property . . . and he is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest"unless it is adequately represented by existing parties. The District Court thereafter approved a divestiture plan whereby a New Company would be formed by El Paso to receive the properties and assets which El Paso received from Pacific Northwest. Appellants, claiming that the conditions under which the New Company would be established would fail to create a competitive pipeline in keeping with this Court's mandate, appealed from the District Court's denial of their motions to intervene.Held:1. The District Court erred in denying appellants the right to intervene in the divestiture proceedings. Pp. 386 U. S. 133-136. Page 386 U. S. 130(a) The category under old Rule 24(a)(3) of "so situated" as to be "adversely affected," by disposition of property was not limited exclusively to those with an interest in property. Pp. 386 U. S. 133-135.(b) Protection of California interests in a competitive system was "at the heart of our mandate" directing divestiture (cf. Missouri-Kansas Pipe Line Co. v. United States, 312 U. S. 502, 312 U. S. 506). Both the State of California and Southern California Edison qualified as intervenors of right under old Rule 24(a)(3). P. 386 U. S. 135.(c) Since the entire merits of the case must be reopened to give those parties an opportunity to be heard as of right as intervenors, the new Rule 24(a)(2), which is applicable to "further proceedings" in pending actions, is broad enough to include Cascade as an intervenor as of right, since it has "an interest," not otherwise adequately represented, in the "transaction which is the subject of this action." Pp. 386 U. S. 135-136.2. Though the Attorney General has the right to settle litigation, such "settlement" cannot circumscribe the execution of this Court's mandate. P. 386 U. S. 136.3. The following guidelines are suggested for the new decree:(a) The New Company's gas reserves must not be proportionately less to the existing reserves than those which Pacific Northwest had when it was independent, and reserves developed after the merger must, after thorough hearings, be equitably divided between El Paso and the New Company. Pp. 386 U. S. 136-137.(b) The terms of gas acquisition contracts should be negotiated by the New Company, after full opportunity to evaluate their advisability, under such restrictions as the Natural Gas Act may impose. Pp. 386 U. S. 137-138.(c) The competitive position of the New Company and its financial viability must be comparable to that which Pacific Northwest enjoyed before the illegal merger obliterated it. P. 386 U. S. 138.(d) The severance of the illegal combination, whether by sale to outside interests or otherwise, must be swiftly made, and effected in such a manner as to ensure that the New Company's stock does not end up under control of El Paso interests. Pp. 386 U. S. 138-142.4. A District Judge different from the one who heard the case before shall be assigned to hear the case on remand. Pp. 386 U. S. 142-143.Reversed and remanded. Page 386 U. S. 131

1981_80-2100

JUSTICE WHITE delivered the opinion of the Court.The issue in this case is whether the at-large system of elections in Burke County, Ga., violates the Fourteenth Amendment rights of Burke County's black citizens.IBurke County is a large, predominately rural county located in eastern Georgia. Eight hundred and thirty-one square miles in area, [Footnote 1] it is approximately two-thirds the size of the State of Rhode Island. According to the 1980 census, Burke County had a total population of 19,349, of whom 10,385, or 53.6%, were black. [Footnote 2] The average age of blacks Page 458 U. S. 615 living there is lower than the average age of whites, and therefore whites constitute a slight majority of the voting age population. As of 1978, 6,373 persons were registered to vote in Burke County, of whom 38% were black. [Footnote 3]The Burke County Board of Commissioners governs the county. It was created in 1911, see 1911 Ga. Laws 310-311, and consists of five members elected at large to concurrent 4-year terms by all qualified voters in the county. The county has never been divided into districts, either for the purpose of imposing a residency requirement on candidates or for the purpose of requiring candidates to be elected by voters residing in a district. In order to be nominated or elected, a candidate must receive a majority of the votes cast in the primary or general election, and a runoff must be held if no candidate receives a majority in the first primary or general election. Ga.Code § 34-1513 (Supp.1980). Each candidate must run for a specific seat on the Board, Ga.Code § 34-1015 (1978), and a voter may vote only once for any candidate. No Negro has ever been elected to the Burke County Board of Commissioners.Appellees, eight black citizens of Burke County, filed this suit in 1976 in the United States District Court for the Southern District of Georgia. The suit was brought on behalf of all black citizens in Burke County. The class was certified in 1977. The complaint alleged that the county's system of at-large elections violates appellees' First, Thirteenth, Fourteenth, and Fifteenth Amendment rights, as well as their rights under 42 U.S.C. §§ 1971, 1973, and 1983, by diluting the voting power of black citizens. Following a bench trial at which both sides introduced extensive evidence, the court issued an order on September 29, 1978, stating that appellees were entitled to prevail and ordering that Burke County be Page 458 U. S. 616 divided into five districts for purposes of electing County Commissioners. App. to Juris.Statement 62a. The court later issued detailed findings of fact and conclusions of law in which it stated that, while the present method of electing County Commissioners was "racially neutral when adopted, [it] is being maintained for invidious purposes" in violation of appellees' Fourteenth and Fifteenth Amendment rights. Id. at 71a, 96a.The Court of Appeals affirmed. Lodge v. Buxton, 639 F.2d 1358 (CA5 1981). It stated that, while the proceedings in the District Court took place prior to the decision in Mobile v. Bolden, 446 U. S. 55 (1980), the District Court correctly anticipated Mobile and required appellees to prove that the at-large voting system was maintained for a discriminatory purpose. 639 F.2d at 1375-1376. The Court of Appeals also held that the District Court's findings were not clearly erroneous, and that its conclusion that the at-large system was maintained for invidious purposes was "virtually mandated by the overwhelming proof." Id. at 1380. We noted probable jurisdiction, 454 U.S. 811 (1981), and now affirm. [Footnote 4]IIAt-large voting schemes and multimember districts tend to minimize the voting strength of minority groups by permitting the political majority to elect all representatives of the district. A distinct minority, whether it be a racial, ethnic, economic, or political group, may be unable to elect any representatives in an at-large election, yet may be able to elect several representatives if the political unit is divided into single-member districts. The minority's voting power in a multimember district is particularly diluted when bloc voting occurs and ballots are cast along strict majority-minority lines. While multimember districts have been challenged for Page 458 U. S. 617 "their winner-take-all aspects, their tendency to submerge minorities and to overrepresent the winning party," Whitcomb v. Chavis, 403 U. S. 124, 403 U. S. 158-159 (1971), this Court has repeatedly held that they are not unconstitutional per se. Mobile v. Bolden, supra, at 446 U. S. 66; White v. Regester, 412 U. S. 755, 412 U. S. 765 (1973); Whitcomb v. Chavis, supra, at 403 U. S. 142. The Court has recognized, however, that multimember districts violate the Fourteenth Amendment if "conceived or operated as purposeful devices to further racial discrimination" by minimizing, canceling out or diluting the voting strength of racial elements in the voting population. Whitcomb v. Chavis, supra, at 403 U. S. 149. See also White v. Regester, supra, at 412 U. S. 765. Cases charging that multimember districts unconstitutionally dilute the voting strength of racial minorities are thus subject to the standard of proof generally applicable to Equal Protection Clause cases. Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977), made it clear that, in order for the Equal Protection Clause to be violated, "the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, supra, at 426 U. S. 240. Neither case involved voting dilution, but in both cases, the Court observed that the requirement that racially discriminatory purpose or intent be proved applies to voting cases by relying upon, among others, Wright v. Rockefeller, 376 U. S. 52 (1964), a districting case, to illustrate that a showing of discriminatory intent has long been required in all types of equal protection cases charging racial discrimination. Arlington Heights, supra, at 429 U. S. 265; Washington v. Davis, supra, at 426 U. S. 240. [Footnote 5] Page 458 U. S. 618Arlington Heights and Washington v. Davis both rejected the notion that a law is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than another. Arlington Heights, supra, at 429 U. S. 265; Washington v. Davis, 426 U.S. at 426 U. S. 242. However, both cases recognized that discriminatory intent need not be proved by direct evidence."Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another."Ibid. Thus, determining the existence of a discriminatory purpose "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Arlington Heights, supra, at 429 U. S. 266.In Mobile v. Bolden, supra, the Court was called upon to apply these principles to the at-large election system in Mobile, Ala. Mobile is governed by three commissioners who exercise all legislative, executive, and administrative power in the municipality. 446 U.S. at 446 U. S. 59. Each candidate for the City Commission runs for one of three numbered posts in an at-large election and can only be elected by a majority vote. Id. at 446 U. S. 59-60. Plaintiffs brought a class action on behalf of all Negro citizens of Mobile alleging that the at-large scheme diluted their voting strength in violation of several statutory and constitutional provisions. The District Court concluded that the at-large system "violates the constitutional rights of the plaintiffs by improperly restricting their access to the political process," Bolden v. Mobile, 423 F. Supp. 384, 399 (SD Ala.1976), and ordered that the commission form of government be replaced by a mayor and a nine-member City Council elected from single-member districts. Id. at 446 U. S. 404. The Court of Appeals affirmed. 571 F.2d 238 (CA5 1978). This Court reversed.Justice Stewart, writing for himself and three other Justices, noted that, to prevail in their contention that the at-large voting system violates the Equal Protection Clause of the Fourteenth Amendment, plaintiffs had to prove the Page 458 U. S. 619 system was "conceived or operated as [a] purposeful devic[e] to further racial . . . discrimination.'" 446 U.S. at 446 U. S. 66, quoting Whitcomb v. Chavis, supra, at 403 U. S. 149. [Footnote 6] Such a requirement"is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment,"446 U.S. at 446 U. S. 66, and White v. Regester is consistent with that principle. 446 U.S. at 446 U. S. 69. Another Justice agreed with the standard of proof recognized by the plurality. Id. at 446 U. S. 101 (WHITE, J., dissenting).The plurality went on to conclude that the District Court had failed to comply with this standard. The District Court had analyzed plaintiffs' claims in light of the standard which had been set forth in Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973), aff'd on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1975) (per curiam). [Footnote 7] Zimmer set out a list of factors [Footnote 8] gleaned from Page 458 U. S. 620 Whitcomb v. Chavis, supra, and White v. Regester, supra, that a court should consider in assessing the constitutionality of at-large and multimember district voting schemes. Under Zimmer, voting dilution is established "upon proof of the existence of an aggregate of these factors." 485 F.2d at 1305.The plurality in Mobile was of the view that Zimmer was"decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause -- that proof of a discriminatory effect is sufficient."446 U.S. at 446 U. S. 71. The plurality observed that, while "the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose," the mere existence of those criteria is not a substitute for a finding of discriminatory purpose. Id. at 446 U. S. 73. The District Court's standard in Mobile was likewise flawed. Finally, the plurality concluded that the evidence upon which the lower courts had relied was "insufficient to prove an unconstitutionally discriminatory purpose in the present case." Ibid. JUSTICE STEVENS rejected the intentional discrimination standard, but concluded that the proof failed to satisfy the legal standard that, in his view, was the applicable rule. He therefore concurred in the judgment of reversal. Four other Justices, however, thought the evidence sufficient to satisfy the purposeful discrimination standard. One of them, JUSTICE BLACKMUN, nevertheless concurred in the Court's judgment because he believed an erroneous remedy had been imposed.Because the District Court in the present case employed the evidentiary factors outlined in Zimmer, it is urged that Page 458 U. S. 621 its judgment is infirm for the same reasons that led to the reversal in Mobile. We do not agree. First, and fundamentally, we are unconvinced that the District Court in this case applied the wrong legal standard. Not only was the District Court's decision rendered a considerable time after Washington v. Davis and Arlington Heights, but the trial judge also had the benefit of Nevett v. Sides, 571 F.2d 209 (1978), where the Court of Appeals for the Fifth Circuit assessed the impact of Washington v. Davis and Arlington Heights and held that "a showing of racially motivated discrimination is a necessary element in an equal protection voting dilution claim. . . ." 571 F.2d at 219. The court stated that"[t]he ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the districting plan under attack exists because it was intended to diminish or dilute the political efficacy of that group."Id. at 226. The Court of Appeals also explained that, although the evidentiary factors outlined in Zimmer were important considerations in arriving at the ultimate conclusion of discriminatory intent, the plaintiff is not limited to those factors."The task before the fact finder is to determine, under all the relevant facts, in whose favor the 'aggregate' of the evidence preponderates. This determination is peculiarly dependent upon the facts of each case."571 F.2d at 224 (footnote omitted).The District Court referred to Nevett v. Sides and demonstrated its understanding of the controlling standard by observing that a determination of discriminatory intent is "a requisite to a finding of unconstitutional vote dilution" under the Fourteenth and Fifteenth Amendments. App. to Juris.Statement 68a. Furthermore, while recognizing that the evidentiary factors identified in Zimmer were to be considered, the District Court was aware that it was "not limited in its determination only to the Zimmer factors," but could consider other relevant factors as well. App. to Juris.Statement 70a. The District Court then proceeded to deal with what it considered to Page 458 U. S. 622 be the relevant proof, and concluded that the at-large scheme of electing commissioners, "although racially neutral when adopted, is being maintained for invidious purposes." Id. at 71a. That system, "while neutral in origin . . . , has been subverted to invidious purposes." Id. at 90a. For the most part, the District Court dealt with the evidence in terms of the factors set out in Zimmer and its progeny, but, as the Court of Appeals stated:"Judge Alaimo employed the constitutionally required standard . . . , [and] did not treat the Zimmer criteria as absolute, but rather considered them only to the extent they were relevant to the question of discriminatory intent."639 F.2d at 1376. Although a tenable argument can be made to the contrary, we are not inclined to disagree with the Court of Appeals' conclusion that the District Court applied the proper legal standard.IIIAWe are also unconvinced that we should disturb the District Court's finding that the at-large system in Burke County was being maintained for the invidious purpose of diluting the voting strength of the black population. In White v. Regester, 412 U.S. at 412 U. S. 769-770, we stated that we were not inclined to overturn the District Court's factual findings,"representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise."See also Columbus Board of Education v. Penick, 443 U. S. 449, 443 U. S. 468 (1979) (BURGER, C.J., concurring in judgment). Our recent decision in Pullman-Standard v. Swint, 456 U. S. 273 (1982), emphasizes the deference Federal Rule of Civil Procedure 52 requires reviewing courts to give a trial court's findings of fact."Rule 52(a) broadly requires that findings of fact not be set aside unless Page 458 U. S. 623 clearly erroneous. It does not make exceptions or purport to exclude certain categories of factual findings. . . ."456 U.S. at 456 U. S. 287. The Court held that the issue of whether the differential impact of a seniority system resulted from an intent to discriminate on racial grounds "is a pure question of fact, subject to Rule 52(a)'s clearly erroneous standard." Id. at 456 U. S. 287-288. The Swint Court also noted that issues of intent are commonly treated as factual matters. Id. at 456 U. S. 288. We are of the view that the same clearly erroneous standard applies to the trial court's finding in this case that the at-large system in Burke County is being maintained for discriminatory purposes, as well as to the court's subsidiary findings of fact. The Court of Appeals did not hold any of the District Court's findings of fact to be clearly erroneous, and this Court has frequently noted its reluctance to disturb findings of fact concurred in by two lower courts. See, e.g., Berenyi v. Information Director, 385 U. S. 630, 385 U. S. 635 (1967); Blau v. Lehman, 368 U. S. 403, 368 U. S. 408-409 (1962); Graver Tank & Mfg. Co. v. Linde Co., 336 U. S. 271, 336 U. S. 275 (1949). We agree with the Court of Appeals that, on the record before us, none of the factual findings is clearly erroneous.BThe District Court found that blacks have always made up a substantial majority of the population in Burke County, App. to Juris.Statement 66a, n. 3, but that they are a distinct minority of the registered voters. Id. at 71a-72a. There was also overwhelming evidence of bloc voting along racial lines. Id. at 72a-73a. Hence, although there had been black candidates, no black had ever been elected to the Burke County Commission. These facts bear heavily on the issue of purposeful discrimination. Voting along racial lines allows those elected to ignore black interests without fear of political consequences, and, without bloc voting, the minority candidates would not lose elections solely because of their race. Because it is sensible to expect that at least some Page 458 U. S. 624 blacks would have been elected in Burke County, the fact that none have ever been elected is important evidence of purposeful exclusion. See White v. Regester, supra, at 412 U. S. 766.Under our cases, however, such facts are insufficient in themselves to prove purposeful discrimination absent other evidence such as proof that blacks have less opportunity to participate in the political processes and to elect candidates of their choice. United Jewish Organizations v. Carey, 430 U. S. 144, 430 U. S. 167 (1977); White v. Regester, supra, at 412 U. S. 765-766; Whitcomb v. Chavis, 403 U.S. at 403 U. S. 149-150. See also Mobile v. Bolden, 446 U.S. at 446 U. S. 66 (plurality opinion). Both the District Court and the Court of Appeals thought the supporting proof in this case was sufficient to support an inference of intentional discrimination. The supporting evidence was organized primarily around the factors which Nevett v. Sides, 571 F.2d 209 (CA5 1978), had deemed relevant to the issue of intentional discrimination. These factors were primarily those suggested in Zimmer v. McKeithen, 485 F.2d 1297 (CA5 1973)The District Court began by determining the impact of past discrimination on the ability of blacks to participate effectively in the political process. Past discrimination was found to contribute to low black voter registration because, prior to the Voting Rights Act of 1965, blacks had been denied access to the political process by means such as literacy tests, poll taxes, and white primaries. The result was that "Black suffrage in Burke County was virtually nonexistent." App. to Juris.Statement 71a. Black voter registration in Burke County has increased following the Voting Rights Act to the point that some 38% of blacks eligible to vote are registered to do so. Id. at 72a. On that basis, the District Court inferred that "past discrimination has had an adverse effect on black voter registration which lingers to this date." Ibid. Past discrimination against blacks in education also had the same effect. Not only did Burke County schools discriminate against blacks as recently as 1969, but also some schools Page 458 U. S. 625 still remain essentially segregated, and blacks, as a group, have completed less formal education than whites. Id. at 74a.The District Court found further evidence of exclusion from the political process. Past discrimination had prevented blacks from effectively participating in Democratic Party affairs and in primary elections. Until this lawsuit was filed, there had never been a black member of the County Executive Committee of the Democratic Party. There were also property ownership requirements that made it difficult for blacks to serve as chief registrar in the county. There had been discrimination in the selection of grand jurors, the hiring of county employees, and in the appointments to boards and committees which oversee the county government. Id. at 74a-76a. The District Court thus concluded that historical discrimination had restricted the present opportunity of blacks effectively to participate in the political process. Evidence of historical discrimination is relevant to drawing an inference of purposeful discrimination, particularly in cases such as this one where the evidence shows that discriminatory practices were commonly utilized, that they were abandoned when enjoined by courts or made illegal by civil rights legislation, and that they were replaced by laws and practices which, though neutral on their face, serve to maintain the status quo.Extensive evidence was cited by the District Court to support its finding that elected officials of Burke County have been unresponsive and insensitive to the needs of the black community, [Footnote 9] which increases the likelihood that the political process was not equally open to blacks. This evidence ranged from the effects of past discrimination which still Page 458 U. S. 626 haunt the county courthouse to the infrequent appointment of blacks to county boards and committees; the overtly discriminatory pattern of paving county roads; the reluctance of the county to remedy black complaints, which forced blacks to take legal action to obtain school and grand jury desegregation; and the role played by the County Commissioners in the incorporation of an all-white private school to which they donated public funds for the purchase of band uniforms. Id. at 77a-82a.The District Court also considered the depressed socioeconomic status of Burke County blacks. It found that proportionately more blacks than whites have incomes below the poverty level. Id. at 83a. Nearly 53% of all black families living in Burke County had incomes equal to or less than three-fourths of a poverty-level income. Ibid. Not only have blacks completed less formal education than whites, but also the education they have received "was qualitatively inferior to a marked degree." Id. at 84a. Blacks tend to receive less pay than whites, even for similar work, and they tend to be employed in menial jobs more often than whites. Id. at 85a. Seventy-three percent of houses occupied by blacks lacked all or some plumbing facilities; only 16% of white-occupied houses suffered the same deficiency. Ibid. The District Court concluded that the depressed socioeconomic status of blacks results in part from "the lingering effects of past discrimination." Ibid.Although finding that the state policy behind the at-large electoral system in Burke County was "neutral in origin," the District Court concluded that the policy "has been subverted to invidious purposes." Id. at 90a. As a practical matter, maintenance of the state statute providing for at-large elections in Burke County is determined by Burke County's state representatives, for the legislature defers to their wishes on matters of purely local application. The court found that Burke County's state representatives "have retained a system which has minimized the ability of Burke County Blacks to participate in the political system." Ibid. Page 458 U. S. 627The trial court considered, in addition, several factors which this Court has indicated enhance the tendency of multimember districts to minimize the voting strength of racial minorities. See Whitcomb v. Chavis, 403 U.S. at 403 U. S. 143-144. It found that the sheer geographic size of the county, which is nearly two-thirds the size of Rhode Island, "has made it more difficult for Blacks to get to polling places or to campaign for office." App. to Juris.Statement 91a. The court concluded, as a matter of law, that the size of the county tends to impair the access of blacks to the political process. Id. at 92a. The majority vote requirement, Ga.Code § 34-1513 (Supp.1980), was found "to submerge the will of the minority," and thus "deny the minority's access to the system." App. to Juris.Statement 92a. The court also found the requirement that candidates run for specific seats, Ga.Code § 34-1015 (1978), enhances appellees' lack of access because it prevents a cohesive political group from concentrating on a single candidate. Because Burke County has no residency requirement, "[a]ll candidates could reside in Waynesboro, or in lilly-white' [sic] neighborhoods. To that extent, the denial of access becomes enhanced." App. to Juris.Statement 93a.None of the District Court's findings underlying its ultimate finding of intentional discrimination appears to us to be clearly erroneous, and as we have said, we decline to overturn the essential finding of the District Court, agreed to by the Court of Appeals, that the at-large system in Burke County has been maintained for the purpose of denying blacks equal access to the political processes in the county. As in White v. Regester, 412 U.S. at 412 U. S. 767, the District Court's findings were "sufficient to sustain [its] judgment . . . and, on this record, we have no reason to disturb them."IVWe also find no reason to overturn the relief ordered by the District Court. Neither the District Court nor the Court of Appeals discerned any special circumstances that would militate Page 458 U. S. 628 against utilizing single-member districts. Where"a constitutional violation has been found, the remedy does not 'exceed' the violation if the remedy is tailored to cure the 'condition that offends the Constitution.'"Milliken v. Bradley, 433 U. S. 267, 433 U. S. 282 (1977) (emphasis deleted), quoting Milliken v. Bradley, 418 U. S. 717, 418 U. S. 738 (1974). [Footnote 10]The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtRogers v. Lodge, 458 U.S. 613 (1982)Rogers v. LodgeNo. 80-2100Argued February 23, 1982Decided July 1, 1982458 U.S. 613SyllabusBurke County, Ga., a large, predominately rural county, has an at-large system for electing members of its governing Board of Commissioners. No Negro has ever been elected to the Board. Appellee black citizens of the county filed a class action in Federal District Court, alleging that the at-large system of elections violated, inter alia, appellees' Fourteenth and Fifteenth Amendment rights by diluting the voting power of black citizens. Finding that blacks have always made up a substantial majority of the county's population, but that they are a minority of the registered voters, that there had been bloc voting along racial lines, and that past discrimination had restricted the present opportunity of blacks to participate effectively in the political process, the District Court held that, although the state policy behind the at-large electoral system was "neutral in origin," the policy was being maintained for invidious purposes in violation of appellees' Fourteenth and Fifteenth Amendment rights. The court then ordered the county to be divided into districts for purposes of electing County Commissioners. The Court of Appeals affirmed, holding that the District Court properly required appellees to prove that the at-large system was maintained for a discriminatory purpose, that the District Court's findings were not clearly erroneous, and that its conclusion that the at-large system was maintained for invidious purposes was "virtually mandated by the overwhelming proof."Held:1. The Court of Appeals did not err in concluding that the District Court applied the proper legal standard where it appears that the District Court demonstrated its understanding of the controlling standard by observing that a determination of discriminatory intent was "a requisite to a finding of unconstitutional vote dilution" under the Fourteenth and Fifteenth Amendments. Pp. 458 U. S. 616-622.2. Where neither the District Court's ultimate findings of intentional discrimination nor its subsidiary findings of fact appear to be clearly erroneous, and such findings were agreed to by the Court of Appeals, this Court will not disturb the findings. Pp. 458 U. S. 622-627.3. Nor is there any reason to overturn the relief ordered by the District Court where neither that court nor the Court of Appeals discerned Page 458 U. S. 614 any special circumstances that would militate against utilizing single-member districts. Pp. 458 U. S. 627-628.639 F.2d 1358, affirmed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. POWELL, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 458 U. S. 628. STEVENS, J., filed a dissenting opinion, post, p. 458 U. S. 631.

1963_386

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The Federal Power Commission, in its regulation of independent producers [Footnote 1] of natural gas, has required them Page 377 U. S. 35 to file their contracts as rate schedules. This was done by regulations which evolved as a result of a series of rulemaking proceedings. [Footnote 2] The pertinent regulations presently provide that only certain pricing provisions in the contracts of independent producers are "permissible," [Footnote 3] any other being "inoperative and of no effect at law." [Footnote 4] The regulations go on to say that any contract executed on or after April 2, 1962, containing price-changing provisions other than the "permissible" ones, "shall be rejected" so far as producer rates are concerned, [Footnote 5] that a producer's application for a certificate of public convenience and necessity under § 7 of the Natural Gas Act "shall be rejected" if any contract submitted in support of it contains any of the forbidden provisions, [Footnote 6] and that, so far as pipeline certificates are concerned, any producer contract executed after that date which has that Page 377 U. S. 36 infirmity "will be given no consideration in determining adequacy" of a pipeline company's gas supply. [Footnote 7]These regulations were adopted pursuant to the provisions of § 4 of the Administrative Procedure Act, 60 Stat. 238, 5 U.S.C. § 1003. General notice of the proposed rulemaking was published in the Federal Register as required by § 4(a) of that Act. The Commission also gave interested parties a "hearing" under § 4(b). [Footnote 8] No oral argument was had, but an opportunity was afforded for all interested parties to submit their views in writing, and the two respondents in this case -- Texaco and Pan American -- along with others, did so.Later, each respondent submitted an application for a certificate of public convenience and necessity under § 7 of the Natural Gas Act, to supply natural gas to a pipeline company. Section 7 provides, with exceptions not presently material, that the Commission "shall set" such an application "for hearing." Since, however, the applications disclosed price clauses that are not "permissible" under the regulations, [Footnote 9] the Commission without a hearing Page 377 U. S. 37 rejected the applications. 28 F.P.C. 551; 29 F.P.C. 378. Petitions for review were filed with the Court of Appeals, which set aside the orders of the Commission. 317 F.2d 796. It held that, while the regulations are valid as a statement of Commission policy, they cannot be used to deprive an applicant of the statutory hearing granted those who seek certificates of public convenience and necessity. The two cases are here in one petition for certiorari which we granted because of an apparent conflict between that decision and Superior Oil Co. v. Federal Power Comm'n, 322 F.2d 601, decided by the Court of Appeals for the Ninth Circuit. 375 U.S. 902.IA preliminary question, which concerns Texaco Inc., alone, is whether venue to review these orders of the Commission was properly in the Tenth Circuit. The governing provision is § 19(b) of the Natural Gas Act, which provides:"Any party to a proceeding under this Act aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural gas company to which the order relates is located or has its principal place of business, or in the United States court of appeals for the District of Columbia. . . ."The term "is located" would have an ambivalent meaning if venue lay only in "any circuit" where the natural gas company "is located." But, in the context of § 19(b), "any circuit" covers either the place where the company Page 377 U. S. 38 "is located" or where it "has its principal place of business." Hence, the main argument of Texaco derives from the fact that "is located" was substituted for "resides" in an early draft of the bill [Footnote 10] which later emerged as the Federal Power Act, from which § 19(b) of the Natural Gas Act is derived. The Court of Appeals found that change decisive, but we can only conjecture as to why it was made, as no explanation appears. The bill in which "resides" was used gave review to "any person aggrieved" and the bill substituting "is located" for "resides" substituted "licensee or public utility" for "person aggrieved." Since the latter language was changed from the personal to the impersonal, it may be, as the Commission says, that the Congress was trying to use common legal parlance that a corporation "can have its legal home only at the place where it is located by or under the authority of its charter," as stated in Ex parte Schollenberger, 96 U. S. 369, 96 U. S. 377. And see Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 308 U. S. 169. However that may be, we think that "is located" means more than having physical presence or existence in a place, since the alternate venue referred to in § 19(b) is "principal place of business." The Court of Appeals recognized the overlap between the two clauses inherent in its construction, but resolved its doubts in favor of Tenth Circuit venue because the gas sold by Texaco under the contested contracts was produced in that circuit, and the performance of the contract took place there.The Act with which we deal was enacted August 26, 1935. At that time and down to the 1948 amendment of § 1391 of the Judicial Code, 28 U.S.C. § 1391(c), the only residence of a corporation for purposes of federal venue was the State and district in which it had been incorporated. Page 377 U. S. 39 See 9 Fletcher, Cyclopedia Corporations (1931), § 4385. That theme runs through the cases. See, e.g., Shaw v. Quincy Mining Co., 145 U. S. 444, 145 U. S. 449-450. We conclude that, although "located" sometimes is used as indicating a place of business (Mercantile Nat. Bank v. Langdeau, 371 U. S. 555), in the setting of this Act, "is located" and "resides" are equated, and that "is located" refers in the case of Texaco to its State of incorporation. There is symmetry in that construction as the choice, so far as circuits are concerned, is then left between that State, the "principal place of business" (with no penumbra of other places of business, as here), or the District of Columbia, where the Commission sits.Texaco is a Delaware corporation, and there is no claim that its principal place of business is within the Tenth Circuit. The Court of Appeals therefore erred in failing to dismiss its petition for lack of venue. There is, however, another respondent, Pan American, whose principal place of business is within the Tenth Circuit. We therefore proceed to the merits of its application.IIThe main issue in the case is whether the "hearing" granted under § 4(b) of the Administrative Procedure Act is adequate, so far as the price clauses are concerned, for purposes of § 7 of the Natural Gas Act. We think the Court of Appeals erred, that the present case is governed by the principle of United States v. Storer Broadcasting Co., 351 U. S. 192, and that the statutory requirement for a hearing under § 7 does not preclude the Commission from particularizing statutory standards through the rulemaking process and barring at the threshold those who neither measure up to them nor show reasons why in the public interest the rule should be waived.In Storer, the Federal Communications Commission, pursuant to its general rulemaking authority, limited Page 377 U. S. 40 permissible multiple ownership for radio and television stations. Storer, which had seven radio stations and five television stations, was under that rule automatically disqualified for further licensing. To surmount that barrier, it argued that the Act required a license to issue where the public interest would be served, and that, before an application could be denied, a hearing must be held. We said:"We read the Act and Regulations as providing a 'full hearing' for applicants who have reached the existing limit of stations, upon their presentation of applications conforming to Rules 1.361(c) and 1.702, that set out adequate reasons why the Rules should be waived or amended. The Act, considered as a whole, requires no more. We agree with the contention of the Commission that a full hearing, such as is required by § 309(b) . . . , would not be necessary on all such applications. As the Commission has promulgated its Rules after extensive administrative hearings, it is necessary for the accompanying papers to set forth reasons, sufficient if true, to justify a change or waiver of the Rules. We do not think Congress intended the Commission to waste time on applications that do not state a valid basis for a hearing. If any applicant is aggrieved by a refusal, the way for review is open."351 U.S. at 351 U. S. 205.In the present case, as in Storer, there is a procedure provided in the regulations whereby an applicant can ask for a waiver of the rule complained of. [Footnote 11] Facts might conceivably Page 377 U. S. 41 be alleged sufficient on their face to provide a basis for waiver of the price clause rules and for a hearing on the matter. Cf. Atlantic Refining Co., 28 F.P.C. 469; 29 F.P.C. 384. But no such attempt was made here by Pan American, the only respondent to which the present point has any immediate applicability.The rulemaking authority here, as in Storer, is ample to provide the conditions for applications under § 4 or § 7. Section 16 of the Natural Gas Act gives the Commission power to prescribe such regulations "as it may find necessary or appropriate to carry out the provisions of this Act." We deal here with a procedural aspect of a rate question and with a certificate question that is important in effectuating the aim of the Act to protect the consumer interest. Federal Power Comm'n v. Hope Natural Gas Co., 320 U. S. 591, 320 U. S. 610. In a rate case under § 5(a) of the Act, the Commission can pass on existing contracts affecting rates, can find that particular contracts are "unjust, unreasonable, unduly discriminatory, or preferential," and thereupon has power to determine the "just and reasonable" rate or contract and "fix the same." And see United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 350 U. S. 341. And where, as here, applications for certificates are made under § 7 of the Act, the Commission, under § 7(e), is required to control the terms and conditions under which natural gas companies, such as respondent, may initiate sales at wholesale of natural gas in Page 377 U. S. 42 commerce. Atlantic Refining Co. v. Public Service Comm'n, 360 U. S. 378, 360 U. S. 389.Pan American does not disagree on that score; it insists that those changes and adjustments can be made only after an adversary hearing. To that, there are two answers. The present regulations do not pass on the merits of any rate structure, nor on the merits of a certificate of public convenience and necessity; they merely prescribe qualifications for applicants. Those qualifications are in the category of conditions that relate to the ability of applicants to serve the consumer interest in this regulated field. They are kin to the kind of capital structure that an applicant has and to his ability by reason of the rate structure to serve the public interest. It must be remembered that, under this Act, rate increases are initiated by the natural gas company, the Commission having the burden by reason of § 4(e) of the Act to initiate a hearing on their legality, with only a limited power to suspend new rates. See United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra. Natural gas companies that seek to enter the field with prearranged escalator clauses and the like have a built-in device for ready manipulation of rates upward. Protection of the consumer interests against that device may be best achieved if it is given at the very threshold of the enterprise. At least the Commission may so conclude, [Footnote 12] and Page 377 U. S. 43 the legislative history makes clear that its authority reaches that far. H.R.Rep.No.1290, 77th Cong., 1st Sess., pp. 2-3, states:". . . The bill when enacted will have the effect of giving the Commission an opportunity to scrutinize the financial set-up, the adequacy of the gas reserves, the feasibility and adequacy of the proposed services, and the characteristics of the rate structure in connection with the proposed construction or extension at a time when such vital matters can Page 377 U. S. 44 readily be modified as the public interest may demand. . . ."(Italics added.) And see S.Rep.No.948, 77th Cong., 2d Sess., pp. 1-2.To require the Commission to proceed only on a case-by-base basis would require it, so long as its policy outlawed indefinite price-changing provisions, to repeat in hearing after hearing its conclusions that condemn all of them. There would be a vast proliferation of hearings, for, as a result of Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, there are thousands of individual producers seeking applications. See Wisconsin v. Federal Power Comm'n, 373 U. S. 294, 373 U. S. 300. We see no reason why, under this statutory scheme, the processes of regulation need be so prolonged [Footnote 13] and so crippled.Pan American finally argues that the "hearing" accorded it under § 4(b) of the Administrative Procedure Act [Footnote 14] did not comply with that Act, nor with the Natural Gas Act. It points out that § 7 of the Natural Gas Act requires a hearing, and that § 5 of the Administrative Procedure Act provides, with exceptions not relevant here, that a full-fledged adversary type of hearing be held in "every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing. . . ." "Adjudication" is defined in § 2(d) of the Administrative Procedure Act as "agency process for the formulation of an order"; "order" is defined as "the whole or any part of the final disposition . . . of any agency in any matter other than rulemaking but Page 377 U. S. 45 including licensing." And "licensing" is defined as "agency process respecting the . . . denial . . . of a license." § 2(e). What the Commission did in these cases, however, is not an "adjudication," not "an order," not "licensing" within the meaning of § 2. Whether Pan American can qualify for a certificate of public convenience and necessity has never been reached. It has only been held that its application is not in proper form because of the pricing provisions in the contracts it tenders. No decisions on the merits have been reached. The only hearing to which Pan American so far has been entitled was given when the regulations in question were adopted pursuant to § 4(b) of the Administrative Procedure Act.Reversed

U.S. Supreme CourtFPC v. Texaco, Inc., 377 U.S. 33 (1964)Federal Power Commission v. Texaco, Inc.No. 386Argued March 25, 1964Decided April 20, 1964377 U.S. 33Syllabus1. A Court of Appeals granted review of a Federal Power Commission (FPC) order concerning a contract performed in its circuit involving natural gas produced there by two respondent natural gas companies incorporated outside the circuit, the principal place of business of one (A) being within the circuit; that of the other (B) being without. Respondents proceeded under §19(b) of the Natural Gas Act, which provides for review in the court of appeals wherein the aggrieved natural gas company "is located or has its principal place of business."Held: The Court of Appeals erred in failing to dismiss the petition of respondent B for lack of venue, since the term "is located" in §19(b) means more than having physical presence in a place, and refers in the case of a corporation to the State of its incorporation. Pp. 377 U. S. 37-39.2. Pursuant to §16 of the Natural Gas Act and § 4 of the Administrative Procedure Act, the FPC, after a hearing given to interested parties, including respondents, at which they were allowed to submit their views in writing, issued regulations providing for the summary rejection of contracts with pricing provisions other than those specified in the regulations as being "permissible." Under § 7 of the Natural Gas Act, which includes a provision for an FPC hearing, respondents each submitted an application for a certificate of public convenience and necessity to supply natural gas to a pipeline. Since the applications disclosed price clauses impermissible under its regulations, the FPC rejected the applications without a hearing. Its order on review was set aside by the Court of Appeals.Held:(a) The "hearing" satisfied the requirements of § 4 of the Administrative Procedure Act. P. 377 U. S. 39.(b) The requirement for a hearing under § 7 does not preclude the FPC from specifying statutory standards through the rulemaking process and barring at the outset those like respondent A whose applications neither meet those standards nor show why, in the public interest, the rule should be waived. United States v. Storer Broadcasting Co., 351 U. S. 192, followed. Pp. 377 U. S. 39-41. Page 377 U. S. 34(c) The present regulations pass on the merits neither of any rate structure nor of a certificate of public convenience and necessity; they merely prescribe qualifications for applicants. P. 377 U. S. 42.(d) The FPC need not proceed on a case-by-case basis where its policy outlaws all indefinite price-changing provisions. P. 377 U. S. 44.(e) A plenary adversary-type hearing under § 7 of the Natural Gas Act and § 5 of the Administrative Procedure Act would have been necessary had there been an adjudication on the merits as to whether respondent A could qualify for a certificate of public convenience and necessity. But the only determination made -- after the adequate rulemaking hearing under § 4(b) of the Administrative Procedure Act -- was not one on the merits, but only that respondent A's application was not in proper form because of the impermissible price-changing provisions in the contract upon which the application depended. Pp. 377 U. S. 44-45.317 F.2d 796 reversed.

1957_45

MR. JUSTICE BRENNAN delivered the opinion of the Court.The General Accounting Office audited transportation bills of the respondent, rendered and paid in 1944, and determined that the Government was overcharged in the amount of $1,025.26. When the respondent did not refund this amount on demand, the Government exercised the right, reserved in § 322 of the Transportation Act of 1940, [Footnote 1] to deduct the overpayments from a subsequent bill. The Government credited that amount against a bill of the respondent, admittedly owing, of $1,143.03 for 1950 transportation services, and paid the balance of $117.77 by check.The respondent thereupon brought this action under the Tucker Act [Footnote 2] in the District Court for Massachusetts. The complaint seeks recovery not of the $1,025.26 deducted, but of the full amount of the 1950 bill of $1,143.03. The Government's answer admits the 1950 Page 355 U. S. 255 bill but pleads its payment by the check of $117.77 and the credit of $1,025.26 in liquidation of the overcharges determined in the 1944 bills. The respondent filed a pleading in response to the government answer [Footnote 3] admitting"that it did receive the check in the amount of $117.77, all as recited by the defendant, leaving the balance due and to this date unpaid in the amount of $1025.26."The question presented in both courts below, and in this Court, is whether, in this action, the carrier has the burden of proving the correctness of the 1944 bills, or the Government the burden of proving that it was overcharged. The District Court held that the respondent carrier was pleading on a contract against which the Government was attempting to "set off" claims under other contracts, and that "whoever attempts to set off the other contractual claims has the burden of showing there are other claims." In the absence of government evidence proving the claimed overcharges in the 1944 bills, a motion of the respondent for summary judgment was granted. The judgment entered, however, was for $402.84, because the respondent accepted the amount of 1944 overcharges in the difference between that sum and the amount of the bill. The Court of Appeals for the First Circuit affirmed the judgment. 236 F.2d 101. We granted certiorari, 352 U.S. 965.Before enactment of § 322, the Government protected itself against transportation overcharges by not paying transportation bills until the responsible government officers, and, in doubtful cases, the General Accounting Office, first audited the bills and found that the charges were correct. [Footnote 4] When charges were questioned the carrier Page 355 U. S. 256 was required to justify them. If administrative settlement was not reached and the carrier sued the United States to recover the amount of the bill, no one questions that it was the carrier's duty to sustain the burden of proving the correctness of the charges. [Footnote 5] Southern Pacific Co. v. United States, 272 U. S. 445, 272 U. S. 448.Section 322, however, required the payment of such bills "upon presentation . . . prior to audit or settlement by the General Accounting Office. . . ." The audit procedures Page 355 U. S. 257 remained substantially the same as those in effect prior to the statute, but the former means of protecting against overcharges -- by not paying the bills until their correctness was proved -- has, by force of the statute, been replaced by the method of collecting them from subsequent bills, under the right reserved by the section to the Government "to deduct the amount of any overpayment to any such carrier from any amount subsequently found to be due such carrier." We recently said, in United States v. Western Pacific R. Co., 352 U. S. 59, 352 U. S. 74:". . . This right [to deduct overpayment from subsequent bills of the carrier] was thought to be a necessary measure to protect the Government, since carriers' bills must be paid on presentation, and before audit."Again, at page 352 U. S. 75:"The fact that the Government paid the carrier's bills as rendered is without significance in light of § 322 of the Transportation Act, supra, requiring payment 'upon presentation' of such bills, and postponing final settlement until audit."This interpretation of § 322 finds full support in the legislative history of the section. The section was included in the omnibus transportation bill, which became the Transportation Act of 1940, in direct response to a demand of the railroads for legislation relieving them of the inordinate delays in payment of their bills attributable to the pre-audit procedure, which tied up substantial amounts of accounts receivable and contributed to the financial difficulties which confronted the railroads during the depression years. The then President of the Association of American Railroads raised the issue in a letter to the Procurement Division of the Department of the Treasury dated October 5, 1937. (See 355 U.S. 253app|>Appendix to Page 355 U. S. 258 this opinion, p. 355 U. S. 264.) Proposed legislation in almost the identical language which became § 322 was thereupon introduced in 1938. [Footnote 6] It failed of passage in the Seventy-fifth Congress, and a number of similar proposals were therefore introduced in the Seventy-sixth Congress. [Footnote 7] None of these passed, but, in the following year, the provision was included as § 322 of the Transportation Act of 1940. [Footnote 8]It is entirely clear that, although the railroads sought, in the words of their spokesman, "corrective action . . . that will render impossible such long delays in payment for services rendered," to gain that end, the railroads recognized that any remedy suggested on their behalf should be"both practical and legal, and [one] which can easily be made operative without the assumption of any risk insofar as the Government is concerned."It was "with this thought in mind" that the railroads proposed the elimination of pre-audit procedures and the prompt payment of transportation bills when rendered, with audit"after payment . . . [of] these bills referred to the General Accounting Office or such other governmental auditing Page 355 U. S. 259 office as might be desired for audit."The plan contemplated that, "in the event . . . this audit reveals an overpayment," the same"will be promptly paid by the railway, preserving, however, the right of the carrier to make further effort to re-collect in the event that it does not believe the proper charges resulted from the Government's audit. [Footnote 9]"In hearings before the House Committee on Interstate and Foreign Commerce held June 1, 1938, [Footnote 10] in connection with one of the bills incorporating the proposal which became § 322, the then General Counsel of the Association of American Railroads, arguing in support of the Page 355 U. S. 260 proposal, urged that,"[i]f that section could be put in here, it would require the payment of the bills by the Government as they are rendered by the railroads, with the privilege, however, of course, if it should develop that there has been an overpayment, the Government may deduct that amount from subsequent bills."The conclusion is inescapable from this history that the Congress was desirous of aiding the railroads to secure prompt payment of their charges, [Footnote 11] but it is also clear that the Congress, and the railroads, contemplated that the Government's protection against overcharges available under the pre-audit practice should not be diminished. The burden of the carriers to establish the correctness of their charges was to continue unabridged. The carriers were to be paid immediately upon submission of their bills, but the carriers were, in return, promptly to refund overcharges when such charges were administratively determined. The carrier would then have "to re-collect" the sum refunded by justifying its bills to the agency or by proving its claim in the courts. The footing upon which each of the parties stood when controversies over charges developed was not to be changed. The right of the United States to deduct overpayments from subsequent bills was the carriers' own proposal for securing the Government against the burden of having to prove the overpayment in proceedings for reimbursement.In the light of this history, we are unable to agree with the holdings of the Court of Appeals that"[a]ll that § 322 does is to authorize and direct disbursing officers of the United States to pay transportation bills upon presentation, without waiting for audit or settlement by the General Page 355 U. S. 261 Accounting Office,"and that the reservation of the right of offset against subsequent bills is without significance --"We suppose that this provision was inserted out of an abundance of caution, because the availability of a setoff by the United States need not depend upon specific statutory authorization,"citing Gratiot v. United States, 15 Pet. 336, 40 U. S. 370, 236 F.2d 101, 105.Nor do we share the view of the Court of Appeals that "the position of the United States as shipper, so far as the present case is concerned, is no different from that of a private shipper." Id., 236 F.2d at 104. Even if we assume that,"[i]f a private shipper or consignee should pay the carrier before satisfying himself of the correctness of the charges demanded -- as he may be required to do pursuant to § 3(2) of the Interstate Commerce Act and regulations of the Commission thereunder -- and later sues for a refund of alleged overpayments, or seeks to set off the amount of the overpayments against another claim admittedly due, in either case, the shipper or consignee would have the burden of alleging and proving the fact and the amount of such overpayment, [Footnote 12]"the Court of Appeals overlooks the fact that the Government's statutory right of setoff was designed to be the substantial equivalent of its previous right to withhold payment altogether until the carrier established the correctness of its charges. Thus, the issue of overcharges, after the enactment of § 322, arises in a different way, but the differing procedures by which the issue is presented should not control the placement of the Page 355 U. S. 262 burden of proof. [Footnote 13] In effect, the situation is that the railroad is suing to recover amounts which the Government initially paid conditionally, and then recaptured, under the § 322 procedure. We therefore hold that the burden of the carrier to establish the lawfulness of its charges is the same under § 322 as it was under the superseded practice.Similarly, conventional principles of contractual setoff should not govern the determination of the carrier's burden of proof in this action merely because the complaint Page 355 U. S. 263 frames an action for recovery of the full amount of the 1950, bill rather than the amount deducted therefrom. The respondent's brief concedes that,"[w]henever a railroad brings an action against the Government, directly upon the deduction [as, on the facts of the case, to recover the alleged 1944 overpayments], it has the burden of alleging and proving the facts of the case and establishing the validity of its claim in the light of the contract and the applicable tariffs."There is also authority that the plaintiff has the same burden, although suing on the subsequent bill, when the claim for damages is for the amount of the deduction. Suncook Mills v. United States, 44 F. Supp. 744; Eastport S.S. Co. v. United States, 131 Ct.Cl. 210, 130 F. Supp. 333; Buch Express, Inc. v. United States, 132 Ct.Cl. 772, 132 F. Supp. 473. [Footnote 14] We do not see that a different issue was shaped by the pleadings in this action. Cf. Wisconsin Central R. Co. v. United States, 164 U. S. 190, 164 U. S. 212. Although the ad damnum clause of the complaint prays recovery of $1,143.03, respondent's pleading filed in response to the Government's answer admits the government payment of $117.77, and that the actual controversy concerns the balance of $1,025.26. The true dispute between the parties, arising from the determination and collection of the overpayments as authorized by § 322, involves the lawfulness of the 1944 bills. It is the substance, not the form, which should be our concern. Cf. Alcoa S.S. Co. v. United States, 338 U. S. 421; Reynolds v. United States, 292 U. S. 443. We hold that the respondent is entitled to recover only if it satisfies its Page 355 U. S. 264 burden of proving that its 1944 charges were computed at lawful and authorized rates.We do not here intimate that the administrative determination of overpayment has binding effect in the judicial proceeding, see Wisconsin Central R. Co. v. United States, supra, at 164 U. S. 211; Grand Trunk Western R. Co. v. United States, 252 U. S. 112, 252 U. S. 120-121; and we agree with the Court of Appeals that the extrinsic fact, namely the availability of the freight cars in the sizes ordered, remains to be proved in the suit. Our conclusion is that the burden in that respect is upon the carrier.The judgment of the Court of Appeals is reversed with direction to remand the case to the District Court for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtUnited States v. New York, N.H. & Hartford R. Co., 355 U.S. 253 (1957)United States v. New York, New Haven & Hartford Railroad Co.No. 45Argued November 20, 1957Decided December 16, 1957355 U.S. 253SyllabusPursuant to § 322 of the Transportation Act of 1940, the Government paid, upon presentation and prior to audit bills presented by respondent railroad, for transporting government property in 1944. On post-audit, the Government found that it had been overcharged, and, upon refusal of respondent to refund the amount of the overcharge, deducted the amount from a bill for transportation services rendered by respondent in 1950. Respondent then sued the Government under the Tucker Act for the full amount of the 1950 bill. In its answer, the Government admitted the 1950, bill but claimed credit for the 1944 overcharge and its payment of the difference by check. Respondent then admitted receipt of the check, but claimed that the remainder of the 1950 bill was due and unpaid.Held: respondent has the burden of proving that its 1944 charges were computed at lawful and authorized rates, and it is entitled to recovery only if it satisfies that burden. Pp. 355 U. S. 254-264.(a) It is clear from the legislative history of § 322 that both Congress and the railroads contemplated that the Government's protection against overcharges available under the pre-audit practice should not be diminished, and that the burden of the carriers to establish the correctness of their charges was to continue unabridged. Pp. 355 U. S. 255-260.(b) The burden of the carrier to establish the lawfulness of its charges is the same under § 322 as it was under the superseded practice, under which payment was withheld until the carrier established the correctness of its charges. Pp. 355 U. S. 260-262.(c) Conventional principles of contractual setoff should not govern the determination of the carrier's burden of proof in this action merely because the complaint frames an action for recovery of the full amount of the 1950 bill, rather than the amount deducted therefrom. Pp. 355 U. S. 262-263.236 F.2d 101, reversed and remanded. Page 355 U. S. 254

1995_95-210

ion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined, post, p. 409.Charles P. Roberts III argued the cause and filed briefs for petitioners.Richard H. Seamon argued the cause for respondents.With him on the brief for respondent National Labor Relations Board were Solicitor General Days, Deputy Solicitor General Wallace, Linda Sher, Norton J. Come, and John Emad Arbab. J. David James, Judith A. Scott, Jon Hiatt, Andrew D. Roth, and Laurence Gold filed a brief for respondent unions. *JUSTICE GINSBURG delivered the opinion of the Court. This controversy stems from a dispute concerning union representation at the Wilkesboro, North Carolina, headquarters facility of Holly Farms, a corporation engaged in the production, processing, and marketing of poultry products. The parties divide, as have federal courts, over the classification of certain workers, described as "live-haul" crewsteams of chicken catchers, forklift operators, and truckdrivers, who collect for slaughter chickens raised as broilers by independent contract growers, and transport the birds to Holly Farms' processing plant. Holly Farms maintains that members of "live-haul" crews are "agriculturallaborer[s]," a category of workers exempt from National Labor Relations Act coverage. The National Labor Relations Board disagreed and approved a Wilkesboro plant bargaining unit including those employees. Satisfied that the Board reasonably aligned the "live-haul" crews with the corporation's*Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Robert P. Davis, John J. Rademacher, Michael F. Rosenblum, and Timothy S. Bishop; and for the National Broiler Council by Gary Jay Kushner, John G. Roberts, Jr., and JonathanJoseph A. Wender, Jr., filed a brief for the California Agricultural Labor Relations Board as amicus curiae.395processing operations, typing them covered "employee[s]," not exempt "agriculturallaborer[s]," we affirm the Court of Appeals' judgment, which properly deferred to the Board's determination.I APetitioner Holly Farms Corporation, a wholly owned subsidiary of Tyson Foods, Inc., is a vertically integrated poultry producer headquartered in Wilkesboro, North Carolina.1 Holly Farms' activities encompass numerous poultry operations, including hatcheries, a feed mill, an equipment maintenance center, and a processing plant."Broiler" chickens are birds destined for human food markets.2 Holly Farms hatches broiler chicks at its own hatcheries, and immediately delivers the chicks to the farms of independent contractors. The contractors then raise the birds into full-grown broiler chickens. Holly Farms pays the contract growers for their services, but retains title to the broilers and supplies the food and medicine necessary to their growth.When the broilers are seven weeks old, Holly Farms sends its live-haul crews to reclaim the birds and ferry them to the processing plant for slaughter. The live-haul crews-which typically comprise nine chicken catchers, one forklift operator, and one live-haul driver-travel in a fiat-bed truck from Holly Farms' processing plant to the farms of the independent growers. At the farms, the chicken catchers enter the coops, manually capture the broilers, and load them into cages. The forklift operator lifts the caged chickens onto the bed of the truck, and the live-haul driver returns the1 Holly Farms maintains various facilities throughout the United States, but this controversy concerns only its Wilkesboro operation.2 Holly Farms' operations also involve birds called "pullets," young chickens destined to serve as laying hens. The live-haul workers whose classification is at issue in this case work exclusively with broilers.396truck, with the loaded cases and the crew, to Holly Farms' processing plant. There, the birds are slaughtered and prepared for shipment to retail stores.BIn 1989, the Chauffeurs, Teamsters and Helpers, Local 391 (Union), filed a representation petition with the National Labor Relations Board (Board or NLRB), seeking an election in a proposed unit that included live-haul employees working out of Holly Farms' Wilkesboro processing plant. Over Holly Farms' objection, the Board approved the bargaining unit, ruling that the live-haul workers were "employee[s]" protected by the National Labor Relations Act (NLRA or Act), 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., rather than "agriculturallaborer[s]" excluded from the Act's coverage by § 2(3) of the NLRA, 29 U. S. C. § 152(3). See Holly Farms Corp., 311 N. L. R. B. 273, 273, n. 4, 284 (1993).3 After further proceedings not relevant here, the Board ordered the corporation to bargain with the Union as the representative of the unit. Id., at 285-286.The United States Court of Appeals for the Fourth Circuit enforced the Board's order. The court held that the Board's classification of the live-haul workers as "employee[s]," rather than "agriculturallaborer[s]," rested "on a reasonable interpretation of the Act." 48 F.3d 1360, 1372 (1995). The Board's reading, the court added, was consistent with the NLRB's prior decisions, see Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259, 260-261 (1973), adhered to in Seaboard Farms of Kentucky, Inc., 311 N. L. R. B. No. 159 (1993), and Draper Valley Farms, Inc., 307 N. L. R. B. 1440 (1992), and with the Eighth Circuit's case law, see NLRB v. Hudson Farms, Inc., 681 F.2d 1105,3 Board member Oviatt dissented from the Board's classification of the live-haul employees. He viewed the crew members as "agricultural laborer[s]," and therefore unprotected by the NLRA. Holly Farms Corp., 311 N. L. R. B., at 287.3971106 (per curiam), cert. denied, 459 U. S. 1069 (1982), and Valmac Industries, Inc. v. NLRB, 599 F.2d 246, 249 (1979). 48 F. 3d, at 1371-1372.4Other Federal Courts of Appeals, in conflict with the Fourth and Eighth Circuits, have held that live-haul workers employed by vertically integrated poultry producers are engaged in "agriculture." See, e. g., Coleman v. Sanderson Farms, Inc., 629 F.2d 1077, 1079 (CA5 1980); NLRB v. Ryckebosch, Inc., 471 F.2d 20, 21 (CA9 1972). We granted certiorari to resolve the division of authority. 516 U. S. 963 (1995).IIThe NLRA's protections extend only to workers who qualify as "employee[s]" under § 2(3) of the Act. 29 U. S. C. § 152(3). The term "employee," NLRA § 2(3) states, "[does] not include any individual employed as an agricultural laborer." Ibid. No definition of "agricultural laborer" appears in the NLRA. But annually since 1946, Congress has instructed, in riders to Appropriations Acts for the Board: "[A]griculturallaborer," for NLRA § 2(3) purposes, shall derive its meaning from the definition of "agriculture" supplied by § 3(f) of the Fair Labor Standards Act of 1938 (FLSA). See Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298, 300, and n. 6 (1977).5Section 3(f) of the FLSA provides:" 'Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage4Judge Niemeyer dissented in relevant part; like dissenting Board member Oviatt, see supra, at 396, n. 3, he ranked the live-haul employees as "agriculturallaborer[s]" unprotected by the NLRA. 48 F. 3d, at 1373.5 The most recent congressional rider states: "[N]o part of [the Board's] appropriation shall be available to organize or assist in organizing agricultural laborers or used in connection with investigations, hearings, directives, or orders concerning bargaining units composed of agricultural laborers as referred to in section 2(3) of the [NLRA] ... and as defined in section 3(f) of the [FLSA]." Pub. L. 103-333, Tit. IV, 108 Stat. 2569-2570.398of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of title 12), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." 29 U. S. C. § 203(f).This definition, we have explained, "includes farming in both a primary and a secondary sense." Bayside, 429 U. S., at 300. "Primary farming" includes the occupations listed first in § 3(f): "the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities ... [and] the raising of livestock, bees, fur-bearing animals, or poultry." 29 U. S. C. § 203(f). "Secondary farming" has a broader meaning, encompassing, as stated in the second part of § 3(f): "any practices ... performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." Ibid.; see Bayside, 429 U. S., at 300, n. 7; Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, 763 (1949) (secondary farming embraces "any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidently to or in conjunction with 'such' farming operations").If a statute's meaning is plain, the Board and reviewing courts "must give effect to the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). When the legislative prescription is not free from ambiguity, the administrator must choose between conflicting reason-399able interpretations. Courts, in turn, must respect the judgment of the agency empowered to apply the law "to varying fact patterns," Bayside, 429 U. S., at 304, even if the issue "with nearly equal reason [might] be resolved one way rather than another," id., at 302 (citing Farmers Reservoir, 337 U. S., at 770 (Frankfurter, J., concurring)). We note, furthermore, that administrators and reviewing courts must take care to assure that exemptions from NLRA coverage are not so expansively interpreted as to deny protection to workers the Act was designed to reach. See 48 F. 3d, at 1370 (citing NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339 (CA5 1993)); 6 cf. Arnold v. Ben Kanowsky, Inc., 361 U. S. 388, 392 (1960) (exemptions from the FLSA "are to be narrowly construed against the employers seeking to assert them"); Mitchell v. Kentucky Finance Co., 359 U. S. 290, 295 (1959) ("It is well settled that exemptions from the Fair Labor Standards Act are to be narrowly construed.").IIIPrimary farming includes the raIsmg of poultry. See Bayside, 429 U. S., at 300-301. All agree that the independ-6 The legislative history suggests that Congress, in linking the definition of "agricultural laborer" in NLRA § 2(3) to § 3(f) of the FLSA, intended to cabin the exemption. The version of the appropriations rider first adopted by the House incorporated the definition of "agricultural laborer" contained in the Social Security Act Amendments of 1939, 53 Stat. 1377. See 92 Congo Rec. 6689-6692 (1946). Some lawmakers, however, objected that the amendment contained a "very broad definitio[n] of agricultural laborer excluding a great number of processing employees" from NLRA coverage. See id., at 9514 (statement of Sen. Ball). After some debateand upon consultation with a Board member and Board counsel-the Conference Committee agreed to substitute the "much narrower definition" supplied by § 3(f) of the FLSA. See ibid. The dissent's reading of § 3(f), while a plausible construction of a text we, the Board, and the Secretary of Labor find less than crystalline, see infra, at 409, is inharmonious with a congressional will to create a slim exemption from the encompassing protection the NLRA and the FLSA afford employees in our Nation's commercial enterprises.400ent growers, who raise Holly Farms' broiler chickens on their own farms, are engaged in primary agriculture. But we confront no contention that Holly Farms' live-haul employees are themselves engaged in raising poultry.7 Thus, the only question we resolve is whether the chicken catchers, forklift operators, and truckdrivers are engaged in secondary agriculture-that is, practices "performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." 29 U. S. C. § 203(f).We take up, initially, the "performed by a farmer" strand of FLSA § 3(f). We do not labor over the point, for our decision in Bayside securely leads us to the conclusion that the live-haul activities are not performed "by a farmer." In Bayside, we considered the application of § 3(f)'s "by a farmer" specification to integrated agricultural companies that contract out farming work. We upheld the Board's rejection of the contention that "all of the activity on a contract farm should be regarded as agricultural activity of an integrated farmer" such as Holly Farms. 429 U. S., at 302. When an integrated poultry producer "contracts with independent growers for the care and feeding of [its] chicks, [its] status as a farmer engaged in raising poultry ends with respect to those chicks." Id., at 302, n. 9 (citing Imco Poultry, 202 N. L. R. B., at 260). Accordingly, when the live-haul employees arrive on the independent farms to collect broilers for carriage to slaughter and processing, Holly Farms does not resume its status as "farmer" with respect to those birds, the status Holly Farms had weeks before, when the birds7 Holly Farms, it is true, ultimately argues that the catching and loading of broilers slated for slaughter constitute primary agriculture because those activities are best viewed as the "harvesting" of chickens. See Brief for Petitioners 29-30. But Holly Farms failed to advance this argument before the Court of Appeals, and it did not home in on this contention in its petition for certiorari. Because we "generally do not address arguments that were not the basis for the decision below," Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 379, n. 5 (1996), we decline to entertain Holly Farms' primary farming argument.401were hatched in its hatcheries. This conclusion, we note, entirely disposes of the contention that the truckdrivers are employed in secondary agriculture, for Holly Farms acknowledges that these crew members do not work "on a farm." Tr. of Oral Arg. 5.We turn, now, to the nub of the case for the chicken catchers and forklift operators: the "on a farm" strand of FLSA § 3(f).AHolly Farms argues that under the plain language of the statute, the catching and loading of broilers qualifies as work performed "on a farm as an incident to" the raising of poultry. The corporation emphasizes that § 3(f) of the FLSA enumerates "preparation for market" and "delivery to storage or to market" among activities that count as "agriculture." The live-haul employees' work, Holly Farms concludes, thus falls within the domain of the FLSA exemption and, accordingly, enjoys no NLRA protection.We find Holly Farms' position to be a plausible, but not an inevitable, construction of § 3(f). Hence, we turn to the Board's position, examining only its reasonableness as an interpretation of the governing legislation.BWhile agreeing that the chicken catchers and forklift operators work "on a farm," the Board contends that their catch and cage work is not incidental to farming operations. Rather, the work is tied to Holly Farms' slaughtering and processing operations, activities that do not constitute "farming" under the statute. We conclude, as we next explain, that the Board's position "is based on a reasonable interpretation of the statute, is consistent with the Board's prior holdings, and is supported by the Secretary of Labor's construction of § 3(f)." Bayside, 429 U. S., at 303 (footnotes omitted).4021The Board underscores the statutory words "such farming operations." It does not suffice that the alleged secondary agriculture consists of "preparation for market," or "delivery to storage or to market," the Board maintains; to qualify for the statutory exemption, the Board urges, the work must be incidental to, or conjoined with, primary farming operations.8 As just explained, see supra, at 400-401, at the growing stage in the short life of a broiler, Holly Farms is not involved in primary farming, but the contract growers are. The essential question, then, is whether the live-haul employees' activities are inevitably "incident to or in conjunction with" the farming operations of the independent growers.9 The Board answers this question in the negative.8 As we noted in Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755 (1949), Congress specifically added the words "or on a farm" to FLSA § 3(f) to address some Senators' objections that the exemption otherwise would not cover "the threshing of wheat or other functions necessary to the farmer if those functions were not performed by the farmer and his hands, but by separate companies organized for and devoted solely to that particular job." See id., at 767 (citing 81 Congo Rec. 7653 (1937)). Nothing in the Board's decision detracts from the application of §3(f), based on the "on a farm" language, to employees of "separate companies organized for and devoted solely to" auxiliary work in aid of a farming enterprise. Hence, the words "on a farm" do the work intended, and are not redundant. But see post, at 412-413.Holly Farms presses the argument that its live-haul employees are analogous to the wheat threshers who figured in FLSA § 3(f)'s legislative history. The Board reasonably responds, however, that any workerwhether a wheat thresher, a feed-haul driver, or a chicken catcher-must perform his or her work "as an incident to or in conjunction with such farming operations" in order to fall under the agricultural exemption. If the chicken catching crews were employed by the independent growers, rather than by Holly Farms' processing operation, those crews would more closely resemble the wheat threshers contemplated by the framers of § 3(f).9To this question, the dissent asserts "there can be only one answer."Post, at 415. In the dissent's view, activities "directly related to the farming operations that occurred on that very farm" -in this case, removing chickens from the independent growers' farms to make room for more-403See Imco Poultry, 202 N. L. R. B., at 261 (Because chicken catching crews "have no business relationship with the independent farmers, we conclude that the employees' activities were not incidental to the independent farmers' poultry raising operations.").We find the Board's answer reasonable. Once the broilers have grown on the farm for seven weeks, the growers' contractual obligation to raise the birds ends, and the work of the live-haul crew begins. The record reflects minimal overlap between the work of the live-haul crew and the independent growers' raising activities. The growers do not assist the live-haul crews in catching or loading the chickens; their only responsibilities are to move certain equipment from the chicken coops prior to the crews' arrival, and to be present when the crews are on the farms. App. to Brief for Federal Respondent 3a. Nor do the live-haul employees play any role in the growers' performance of their contractual undertakings.The record, furthermore, supports the Board's conclusion that the live-haul crews' activities were conjoined with Holly Farms' processing operations, rather than with farming.10inescapably satisfy the statute. Post, at 414-415. FLSA § 3(f), all agree, does not apply absent a connection between the activity in question and the primary farming operations conducted "on a farm." But the statutory language-"incident to or in conjunction with" -does not place beyond rational debate the nature or extent of the required connection. See 29 CFR § 780.144 (1995) (recognition by the Secretary of Labor that the "line between practices that are and those that are not performed 'as an incident to or in conjunction with' such farming operations is not susceptible of precise definition").10 Holly Farms argues, and the dissent agrees, post, at 414, that the Board's conclusion rests on the assumption that a given activity can be incidental to one thing only-in this case, either processing or farming, but not both. At oral argument, counsel for the Board stated that Holly Farms had not accurately conveyed the Board's position. Tr. of Oral Arg. 33, 38. The Board apparently recognizes, as do we, that an activity can be incidental to more than one thing. To gain the agricultural exemption, however, farming must be an enterprise to which the activity at issue is incidental. The relevant question under the statute, therefore,404The chicken catchers, forklift operators, and truckdrivers work as a unit. They all "work out of the processing plant" in Wilkesboro, App. 22a, located three miles from the hatcheries, App. to Pet. for Cert. A-381, n. 119. Crew members begin and end each shift by punching a timeclock at the processing plant, id., at A-831 to A-832, and are functionally integrated with other processing-plant employees, App. 22a. See also App. to Pet. for Cert. A-396 (correlation between Holly Farms' slaughter rate and work available for live-haul crews); App. 29a (live production manager for Holly Farms' Wilkesboro facility described catching and delivery of grown broilers as the first step in the producer's processing operations). The Board's determination, in sum, has the requisite "warrant in the record." Bayside, 429 U. S., at 304, n. 14 (citing NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131 (1944)).We think it sensible, too, that the Board homed in on the status of the live-haul crews' employer. The employer's status respecting the particular activity at issue accounts for the Board's determination that Holly Farms' "egg haulers" (who transport eggs from the laying houses to the hatcheries), and "pullet catchers" (who collect the breeding-destined birds on the farms of independent growers) rank as "agricultural laborer[s]." As the record shows, the pullet catchers and egg haulers work in Holly Farms' hatchery operations, while the live-haul employees-who deal only with broilers-work out of the processing plant. "There is no interchange between these classifications. Broiler haulers do not haul pullets and pullet haulers do not haul broilers." App. 20a-21a. Accordingly, the Board reasonably aligned the pullet catchers and egg haulers with Holly Farms' poultryraising operation, and the live-haul employees with the corporation's slaughtering and processing activities.is whether the work of the live-haul crews qualifies as incidental to farming.4052The Board's decision regarding Holly Farms' live-haul crews adheres to longstanding NLRB precedent. For more than 23 years, the NLRB has maintained that vertically integrated poultry producers' employees who "handl[e] and transpor[t] chicks on the farms of independent growers only after [the poultry producers'] farming operations have ended ... cannot be performing practices incident to, or in conjunction with, [their employer's] farming operations." Imco Poultry, 202 N. L. R. B., at 260. Rather, such employees, the Board has repeatedly ruled, perform work "incident to, or in conjunction with, a separate and distinct business activity of [their employer], i. e., shipping and marketing." Id., at 261. See also Draper Valley Farms, Inc., 307 N. L. R. B., at 1440 ("We think it follows plainly from Imco that the Employer's chicken catchers are not, when working on the farms of independent growers who have concluded their 'raising' activities, exempt as agricultural laborers."); Seaboard Farms of Kentucky, Inc., 311 N. L. R. B. No. 159 (1993) (same)Y3In construing the agricultural laborer exemption, the Board endeavors to "follow, whenever possible, the interpretations of Section 3(f) adopted by the Department of Labor, the agency which is charged with the responsibility for and has the experience of administering the Fair Labor Stand-11 Our decision in Maneja v. Waialua Agricultural Co., 349 U. S. 254 (1955), does not cast doubt on the Board's view of operations like Holly Farms. In that case, which did not involve a Board ruling, we held that railroad workers employed by an integrated sugar cane producer were exempt, as "agricultural laborer[s]," from FLSA overtime provisions. The employer in Maneja, unlike Holly Farms, grew and cultivated its sugar cane autonomously, without the aid of independent growers; hence, we concluded that the activities of the railroad workers, who hauled the freshly cut cane from the sugar fields to the processing plant, were incidental to the employer's primary farming operations. Id., at 262-263.406ards Act." Cornell University, 254 N. L. R. B. 110 (1981); see also Mario Saikon, Inc., 278 N. L. R. B. 1289, 1290 (1986); Wegman's Food Market, Inc., 236 N. L. R. B. 1062 (1978). The Board has not departed from that endeavor here.12 The Department of Labor's regulations do not address the precise situation of the live-haul workers before us, nor are the regulations free from ambiguity. We agree with the Board, however, that they are consistent with "employee" characterization of the crews that catch grown chickens for carriage to Holly Farms' processing plant.On contract arrangements for raising poultry, the Department of Labor has issued an interpretative regulation, which we noted in Bayside, 429 U. S., at 303-304, n. 13, as follows:"Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter agree to raise to marketable size baby chicks supplied by the former who also undertake to furnish all the required feed and possibly additional items. Typically, the feed dealer or processor retains title to the chickens until they are sold. Under such an arrangement, the activities of the farmers and their employees in raising the poultry are clearly within section 3(f). The activities of the feed dealer or processor, on the other hand, are not 'raising of poultry,' and employees engaged in them cannot be considered agricultural employees on that ground. Employees of the feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in 'secondary' agriculture (see12 Coleman v. Sanderson Farms, Inc., 629 F.2d 1077 (CA5 1980), which determined that chicken catching crews were employed in "agriculture" under § 3(f), involved a dispute over applicability of the FLSA's overtime provisions, not over union representation. Thus, the court in that case was not required to respect the position of the Board. See id., at 1081, n. 4. We note, however, that the Coleman court did not advert to the Secretary of Labor's interpretations of § 3(f).407§§ 780.137 et seq. [explaining that work must be performed in connection with the farmer-employer's own farming to qualify as 'secondary' agriculture by a farmer] and Johnston v. Cotton Producers Assn., 244 F.2d 553)." 29 CFR § 780.126 (1995).This regulation suggests that live-haul crews surely are not engaged in a primary farming operation. The crews could rank as workers engaged in "secondary" agriculture if they "perform[ed] work on a farm as an incident to or in conjunction with the raising of poultry on the farm." Ibid. As we developed earlier, however, see supra, at 402-405, in the Board's judgment, the crews do not fit that bill. The livehaul crew members perform their work, as the Board sees it, not "as an incident to" poultry raising by independent growers, but "incident to" and "in conjunction with" the slaughter and processing of chickens at Holly Farms' Wilkesboro plant. In the Board's words, the crews are tied to "a separate and distinct business activity," the business of processing poultry for retail sale, see Imco Poultry, 202 N. L. R. B., at 261, not to the anterior work of agriculturePOther Department of Labor regulations are in harmony with the Board's conclusion that the live-haul crews do not engage in secondary farming because their work, though "on13 The Department of Labor's interpretative regulation, 29 CFR § 780.126 (1995), includes a citation to Johnston v. Cotton Producers Assn., 244 F. 2d, 553, 554 (CA5 1957). That case is readily distinguishable from the case before us. In Johnston, the Court of Appeals held that an employee of a rural farm supply store was exempt from FLSA minimum wage and overtime requirements as an agricultural laborer. The supply store sold baby chicks to farmers, while "retain[ing] title to the chicks as security for the purchase price and for advances for feed, supplies, or equipment." Ibid. While the supply store employee caught, cooped, and loaded chickens onto trucks for delivery to processors-entities independent of the supply store-that employee also "supervise[d] the growing of chicks by [independent] growers on their farms." Ibid. By contrast, in this case there is no contention that any of the live-haul employees similarly assist the independent growers in their chick-raising activities.408a farm," is not performed "as an incident to or in conjunction with" the independent growers' poultry-raising operations. Thus, 29 CFR § 780.129 (1995) reiterates that the work "must be performed 'as an incident to or in conjunction with' the farming operations," and § 780.143 adds:"The fact that a practice performed on a farm is not performed by or for the farmer is a strong indication that it is not performed in connection with the farming operations there conducted." Ibid.The same regulation, § 780.143, further states that, in determining whether a practice is performed "for" a farmer, it is "highly significant" whether the practice involves property to which the farmer has title or for which the farmer otherwise has responsibility. Ibid. Holly Farms retains title to the chicks and, once the live-haul crew undertakes its catch and remove operation, the independent grower "divest[s] himself of further responsibility with respect to the product." Ibid.14The Department of Labor candidly observed that "[t]he line between practices that are and those that are not performed 'as an incident to or in conjunction with' such farming operations is not susceptible of precise definition." § 780.144. This acknowledgment accords with our recognition that the meaning of FLSA § 3(f) is not so "plain" as to bear only one permissible construction in the context at hand.IVIn sum, we find persuasive the Board's conclusion that the collection of broilers for slaughter was an activity serving14 Petitioners point to 29 CFR § 780.151(k) (1995), which defines the FLSA § 3(f) words "preparation for market" to include "[c]ulling, grading, cooping, and loading" of poultry. See Brief for Petitioners 23. As another regulation emphasizes, however, "'preparation for market,' like other practices, must be performed 'by a farmer or on a farm as an incident to or in conjunction with such farming operations' in order to be within [FLSA] section 3(f)." 29 CFR § 780.150 (1995).409Holly Farms' processing operations, and not Holly Farms' own or the independent growers' farming operations. Again, we stress that "the reviewing court's function is limited." Bayside, 429 U. S., at 304, n. 14 (citing Hearst Publications, 322 U. S., at 131). For the Board to prevail, it need not show that its construction is the best way to read the statute; rather, courts must respect the Board's judgment so long as its reading is a reasonable one. See Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 891 (1984) ("we will uphold any interpretation [of the term 'employee' in NLRA § 2(3)] that is reasonably defensible"). "[R]egardless of how we might have resolved the question as an initial matter," Bayside, 429 U. S., at 304, the Board's decision here reflects a reasonable interpretation of the law and, therefore, merits our approbation. The judgment of the Court of Appeals is accordinglyAffirmed

OCTOBER TERM, 1995SyllabusHOLLY FARMS CORP. ET AL. v. NATIONAL LABOR RELATIONS BOARD ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 95-210. Argued February 21, 1996-Decided April 23, 1996Respondent National Labor Relations Board (Board) approved a bargaining unit at the Wilkesboro, North Carolina, processing plant of petitioner Holly Farms Corporation, a vertically integrated poultry producer. The approved unit included workers described as "live-haul" crews-teams of chicken catchers, forklift operators, and truckdrivers, who collect for slaughter chickens raised as broilers by independent contract growers, and transport the birds to the processing plant. On Holly Farms' petition for review, the Fourth Circuit enforced the Board's order. The court held that the Board's classification of the live-haul workers as "employee[s]" protected by the National Labor Relations Act (NLRA or Act), rather than "agriculturallaborer[s]" excluded from the Act's coverage by § 2(3) of the NLRA, rested on a reasonable interpretation of the Act and was consistent with the Board's prior decisions and with the Eighth Circuit's case law.Held: The Board reasonably aligned the live-haul crews with Holly Farms' processing operations, typing them covered "employee[s]," not exempt "agriculturallaborer[s]"; therefore, the Fourth Circuit properly deferred to the Board's determination. Pp. 397-409.(a) The term "agricultural laborer," as used in § 2(3) of the NLRA, derives its meaning from the definition of "agriculture" supplied by § 3(f) of the Fair Labor Standards Act of 1938 (FLSA). This definition includes farming in both a primary sense, which includes "the raising ... of poultry," and a secondary sense, which encompasses practices "performed by a farmer or on a farm as an incident to or in conjunction with such farming operations." When a statutory prescription is not free from ambiguity, the Board must choose between conflicting reasonable interpretations. Courts, in turn, must respect the judgment of the agency empowered to apply the law to varying fact patterns. Bayside Enterprises, Inc. v. NLRB, 429 U. S. 298, 304. Pp. 397-399.(b) The Court confronts no contention that the live-haul crews are engaged in primary agriculture. Thus, the sole question the Court addresses and decides is whether the chicken catchers, forklift operators, and truckdrivers are engaged in secondary agriculture. The live-haul activities are not "performed by a farmer." When an integrated poul-393try producer contracts with independent growers for the care and feeding of chicks hatched in the producer's hatcheries, the producer's status as a farmer ends with respect to those chicks. Bayside, 429 U. S., at 302, n. 9. The producer does not resume farmer status when its livehaul employees arrive on the independent farms to collect broilers for carriage to slaughter and processing. This conclusion entirely disposes of the contention that the truckdrivers are employed in secondary agriculture, for Holly Farms acknowledges that these crew members do not work "on a farm." Pp.399-401.(c) The more substantial question is whether the catching and loading of broilers qualifies as work performed "on a farm as an incident to or in conjunction with" the independent growers' farming operations. Holly Farms' position that this work is incident to the raising of poultry is a plausible, but not an inevitable, construction of FLSA § 3(f). Hence, a reviewing court must examine the Board's position only for its reasonableness as an interpretation of the governing legislation. P. 401.(d) The Board concluded that the collection of broilers for slaughter, although performed "on a farm," is not incidental to farming operations. Rather, the Board determined, the live-haul crews' work is tied to Holly Farms' processing operations. This is a reasonable interpretation of the statute. Once the broilers have grown on the farm for seven weeks, the growers' contractual obligation to raise the birds ends, and the work of the live-haul crew begins. The growers do not assist the crews in catching or loading the chickens, and the crews play no role in the growers' performance of their contractual undertakings. Furthermore, the live-haul employees all work out of the Wilkesboro processing plant, begin and end each shift by punching a time clock at the plant, and are functionally integrated with other processing-plant employees. It was also sensible for the Board to home in on the status of the crews' employer. Pp. 401-404.(e) The Board's decision adheres to longstanding NLRB precedent, see, e. g., Imco Poultry, Div. of Int'l Multifoods Corp., 202 N. L. R. B. 259, 260, and is supported by the construction of FLSA § 3(f) by the Department of Labor, the agency responsible for administering the FLSA. The Department's interpretative regulations accord with the Board's conclusion that the live-haul crews do not engage in secondary farming and further demonstrate that FLSA § 3(f)'s meaning is not so plain as to bear only one permissible construction in the context at hand. Pp. 405-408.48 F.3d 1360, affirmed.GINSBURG, J., delivered the opinion of the Court, in which STEVENS, KENNEDY, SOUTER, and BREYER, JJ., joined. O'CONNOR, J., filed an opin-394Full Text of Opinion

2002_01-705

(2) The result of appealing to plausibility is not affected by either of the other textual features that the companies argue indicate inability to assign beneficiaries after October 1, 1993. pp. 163-171.(i) The provision for unassigned beneficiary status, § 9704(d), cannot be characterized as the specification of a "consequence" for failure to assign a beneficiary to an operator or related person. It speaks not in terms of the Commissioner's failure to assign beneficiaries but simply of "beneficiaries who are not assigned." The most obvious reason for such unassigned status is a former employer's disappearance. This is not to say that a failure of timely assignment does not also leave a beneficiary "unassigned." It simply means that unassigned status has no significance peculiar to failure of timely assignment. In addition, to the extent that unassigned status is a consequence of mere untimeliness, the most obvious reason for specifying that consequence is not a supposed desire for finality but a default rule telling the Social Security Administration what funding source to use in the absence of any other. It is unrealistic to think that Congress understood unassigned status as an enduring consequence of uncompleted work, for nothing indicates that it foresaw that some beneficiaries matchable with operators still in business might not be assigned by the deadline. In the one instance where Congress clearly weighed finality on October 1, 1993, against accuracy of initial assignments, accuracy won, see §§ 9704(d), (f); and the companies' attempts to limit this apparent preference for accuracy fail. Pp. 163-169.(ii) The provision that an operator's contribution for the benefit of the unassigned shall be calculated based on "assignments as of October 1, 1993," § 9704(f)(I), does not mean that an assigned operator's percentage of potential liability for the benefit of the unassigned is fixed according to the assignments made at that date. "[A]s of" need not mean, as the companies contend, "as assignments actually stand" on that date, but can mean assignments as they shall be on that date, assuming the Commissioner complies with Congress's command. Since there is no "plain" reading, there is nothing left of this "as of" argument except its stress that the applicable percentage can be modified only in accordance with exceptions for initial error or an assignee operator's demise. And the enunciation of two exceptions does not imply the exclusion of a third when there is no reason to think that Congress considered such an exclusion and there is good reason to conclude that Congress did not foresee a failure to make timely assignments. pp. 170-171.(b) The Coal Act was designed to allocate the greatest number of beneficiaries to a prior responsible operator. The way to reach this objective is to read the statutory date as a spur to prompt action, not as a bar to tardy completion of the business of ensuring that benefits152are funded, as much as possible, by those principally responsible. Pp. 171-172.14 Fed. Appx. 393 (first judgment) and 424 (second judgment), reversed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which O'CONNOR and THOMAS, JJ., joined, post, p. 172. THOMAS, J., filed a dissenting opinion, post, p. 184.Barbara B. McDowell argued the cause for petitioner in No. 01-705. On the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Paul R. Q. Wolfson, William Kanter, and Jeffrey Clair.Peter Buscemi argued the cause for petitioners in No. 01-715. With him on the briefs were John R. Mooney and David WAllen.John G. Roberts, Jr., argued the cause for Peabody Coal Co. et al., respondents in No. 01-705. With him on the brief were Lorane F. Hebert and W Gregory M otto Jeffrey S. Sutton argued the cause for Bellaire Corp. et al., respondents in both cases. With him on the brief were Brian G. Selden, Louis A. Chaiten, and Thomas A. Smock. tJUSTICE SOUTER delivered the opinion of the Court.The Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or Act) includes the present 26 U. S. C. § 9706(a), providing generally that the Commissioner of Social Security "shall, before October 1, 1993," assign each coal industry retiree eligible for benefits to an extant operating company or a "related" entity, which shall then be responsible for funding the assigned beneficiary's benefits. The question is whether an initial assignment made after that date is valid despite its untimeliness. We hold that it is.tMary Lou Smith filed a brief for Elgin National Industries, Inc., as amicus curiae urging affirmance.153IWe have spoken about portions of the Coal Act in two recent cases, Barnhart v. Sigmon Coal Co., 534 U. S. 438 (2002), and Eastern Enterprises v. Apfel, 524 U. S. 498 (1998), the first of which sketches the Act's history, 534 U. S., at 442-447. Here, it is enough to recall that in its current form the Act requires the Commissioner to assign, where possible, every coal industry retiree to a "signatory operator," defined as a signatory of a coal wage agreement specified in § 9701(b)(1). §§ 9701(c)(1), 9706(a). An assignment should turn on a retiree's employment history with a particular operator, § 9706(a), unless an appropriate signatory is no longer in business, in which case the proper assignee is a "related person" of that operator, defined in terms of corporate associations and relationships not in issue here, § 9701(c)(2).l The Act recognizes that some retirees will be "unassigned." § 9704(d).Assignment to a signatory operator binds the operator to pay an annual premium to the United Mine Workers of America Combined Benefit Fund, established under the Act to administer benefits. § 9702. The premium has up to three components, starting with a "health benefit premium," computed by multiplying the number of assigned retirees by the year's "per beneficiary" premium, set by the Commissioner and based on the Combined Fund's health benefit expenses for the prior year, adjusted for changes in the Consumer Price Index. § 9704(b). The second element is a "death benefit premium" for projected benefits to the retirees' survivors, the premium being the operator's share of "the amount, actuarially determined, which the Combined Fund will be required to pay during the plan year for death benefits coverage." § 9704(c).1 The Coal Act's definition of "related persons" was the subject of our opinion last Term in Barnhart v. Sigmon Coal Co., 534 U. S. 438 (2002). For simplicity, we will not refer to related persons separately in the balance of this opinion.154A possible third constituent of the premium is for retirees who are not assigned to a particular operator, whose health and death benefits are nonetheless paid from the Combined Fund as if they were assigned beneficiaries. Before passage of the Coal Act, many operators withdrew from coal wage agreements, shifting the costs of paying for their retirees' benefits to the remaining signatories, Sigmon Coal Co., supra, at 444, and an important object of the Coal Act was providing stable funding for the health benefits of these "orphan retirees," House Committee on Ways and Means, Development and Implementation of the Coal Industry Retiree Health Benefit Act of 1992, 104th Cong., 1st Sess., 1 (Comm. Print 1995) (hereinafter Coal Act Implementation). See Energy Policy Act of 1992, Pub. L. 102-486, § 19142, 106 Stat. 3037 (intent to "stabilize plan funding" and "provide for the continuation of a privately financed self-sufficient program").Before signatory operators may be compelled to contribute for the benefit of unassigned beneficiaries, however, funding from two other sources must run out. The United Mine Workers of America 1950 Pension Plan (UMWA Pension Plan) was required to make three substantial payments to the Combined Fund for this purpose on February 1, 1993, October 1, 1993, and October 1, 1994. § 9705(a)(1). The Act also calls for yearly payments to the Combined Fund from the Abandoned Mine Land Reclamation Fund (AML Fund), established for reclamation and restoration of land and water resources degraded by coal mining. 30 U. S. C. § 1231(c). Annual transfers from this AML Fund are limited to the greater of $70 million and the annual interest earned by the fund, and are subject to an aggregate limit equal to the amount of interest earned on the AML Fund between September 30, 1992, and October 1, 1995. §§ 1232(h)(2), (3)(B).So far, these transfers from the UMW A Pension Plan and the AML Fund have covered the benefits of all unassigned beneficiaries. If they fall short, however, the third source comes into play (and the third element of an operator's Com-155bined Fund premium becomes actual): all assignee operators (that is, operators with assigned retirees) will have to pay an "unassigned beneficiaries premium," being their applicable percentage portion of the amount needed to pay annual benefits for the unassigned. An operator's "applicable percentage" is defined as "the percentage determined by dividing the number of eligible beneficiaries assigned under section 9706 to such operator by the total number of eligible beneficiaries assigned under section 9706 to all such operators (determined on the basis of assignments as of October 1, 1993)." 26 U. s. C. § 9704(f)(1). The signatory with the most assigned retirees thus would cover the greatest share of the benefits payable to the unassigned (as well as their spouses and certain dependants).2IIAlthough § 9706 provides that the Commissioner "shall" complete all assignments before October 1, 1993, the Commissioner did not, and she now estimates that some 10,000 beneficiaries were first assigned to signatory operators after the statutory date. The parties disagree on the reason the Commissioner failed to meet the deadline, but that dispute need not be resolved here.32 According to a 1995 congressional Report, the total premium for a single beneficiary was $2,349.38 for the 1995 fiscal year. This figure includes only the health and death benefit premiums, since no unassigned beneficiaries premium has yet been charged. Coal Act Implementation 32-33. The 2002 per-beneficiary premium was approximately $2,725. General Accounting Office Report No. 02-243, Retired Coal Miners' Health Benefit Funds: Financial Challenges Continue 8 (Apr. 2002).3 The Commissioner's proffered reason for the delay is that the Social Security Administration (SSA) was not permitted to expend appropriated funds to commence work on assignments until July 13, 1993, when Congress enacted the Supplemental Appropriations Act of 1993, Pub. L. 10350, 107 Stat. 254. The Commissioner also states that the task of researching employment records for approximately 80,000 coal industry workers in order to determine the appropriate signatory operators was monumental and could not have been completed by October 1, 1993, without additional resources. The respondent companies counter that the Acting156After October 1,1993, the Commissioner assigned 330 beneficiaries to respondents Peabody Coal Company and Eastern Associated Coal Corp., and a total of 270 beneficiaries to respondents Bellaire Corporation, NACCO Industries, Inc., and The North American Coal Corporation. These companies challenged the assignments in two separate actions before different District Courts, claiming that the statutory date sets a time limit on the Commissioner's power to assign, so that a beneficiary not assigned on October 1, 1993 (and the beneficiary's eligible dependants) must be left unassigned for life. If the respondent companies are right, the challenged assignments are void and the corresponding benefits must be financed not by them, but by the transfers from the UMW A Pension Plan and the AML Fund and, if necessary, by unassigned beneficiary premiums paid by other signatory operators to whom timely assignments were made.The Commissioner denied that Congress intended the Commissioner's tardiness in assignments to impose a permanent charge on the public AML Fund, otherwise earmarked for reclamation, or to raise the threat of permanently heavier financial burdens on companies that happened to get assignments before October 1, 1993. The Commissioner argued that Congress primarily intended coal operators to pay for their own retirees. The trustees of the Combined Fund in-Commissioner assured Congress less than a month before the statutory date that SSA would meet its "statutory responsibility" to complete the assignments on time. Hearing on Provisions Relating to the Health Benefits of Retired Coal Miners before the House Ways and Means Committee, 103d Cong., 1st Sess., 26 (1993) (hereinafter 1993 Coal Act Hearing), Ser. No. 103-59, p. 26 (Comm. Print 1994) (statement of Acting Commissioner Thompson). The same representative informed Congress in 1995 that SSA had "completed the process of making the initial assignment decisions by October 1, 1993, as required by law." Hearing on the Coal Industry Retiree Health Benefit Act of 1992 before the Subcommittee on Oversight of the House Committee on Ways and Means, 104th Cong., 1st Sess., 23 (1995), Ser. No. 104-67, p. 23 (1997) (statement of Principal Deputy Commissioner Thompson).157tervened in one of the cases and took the Commissioner's view that initial assignments made after September 30, 1993, are valid.4The companies obtained summary judgments in each case, on the authority of Dixie Fuel Co. v. Commissioner of Social Security, 171 F.3d 1052 (CA6 1999), which went against the Commissioner on the issue here. The United States Court of Appeals for the Sixth Circuit affirmed in two opinions likewise following Dixie Fuel-Peabody Coal Co. v. Massanari, 14 Fed. Appx. 393 (2001), and Bellaire Corp. v. Massanari, 14 Fed. Appx. 424 (2001)-but conflicting with the Fourth Circuit's holding in Holland v. Pardee Coal Co., 269 F.3d 424 (2001). We granted certiorari to resolve the conflict,5 534 U. S. 1112 (2002), and now reverse.IIIIt misses the point simply to argue that the October 1, 1993, date was "mandatory," "imperative," or a "deadline," as of course it was, however unrealistic the mandate may have been. The Commissioner had no discretion to choose to leave assignments until after the prescribed date, and the assignments in issue here represent a default on a statutory duty, though it may well be a wholly blameless one. But the failure to act on schedule merely raises the real question, which is what the consequence of tardiness should be. The respondent companies call the failure "jurisdictional," such that the affected beneficiaries (like truly orphan beneficiaries) may never be assigned, but instead must be permanent4 The General Accounting Office estimated in 2000 that invalidation of assignments made after September 30, 1993, could require the Combined Fund to refund $57 million in premium payments. Letter of Gloria L. Jarmon to Hon. William V. Roth, Jr., Senate Committee on Finance 2 (Aug. 15,2000), http://www.gao.gov/new.items/ai00267r.pdf (as visited Jan. 9, 2003) (available in Clerk of Court's case file).5 After the grant of certiorari, the United States Court of Appeals for the Third Circuit came down on the side of the Fourth Circuit. See Shenango Inc. v. Apfel, 307 F.3d 174 (2002).158wards of the UMW A Pension Plan, the AML Fund, and, potentially, of coal operators without prior relationship to these beneficiaries. The companies, in other words, say that as to tardily assigned beneficiaries who were, perhaps, formerly their own employees, they go scot free. We think the claim is as unsupportable as it is counterintuitive.AFirst there is the companies' position that couching the duty in terms of the mandatory "shall" together with a specific deadline leaves the Commissioner with no authority to make an initial assignment on or after October 1, 1993. We rejected a comparable argument in Brock v. Pierce County, 476 U. S. 253 (1986), dealing with the power of the Secretary of Labor to audit a grant recipient under a provision that he "'shall' issue a final determination ... within 120 days" of receiving a complaint alleging misuse of federal grant funds. Id., at 255. Like the Court of Appeals here, the Ninth Circuit in Brock thought the mandate and deadline together implied that Congress "had intended to prevent the Secretary from acting" after the statutory period, id., at 257. We, on the contrary, expressed reluctance "to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake," id., at 260, and reversed. As in this litigation, the Secretary's responsibility in Brock was "substantial," the "ability to complete it within 120 days [was] subject to factors beyond [the Secretary's] control," and "the Secretary's delay, under respondent's theory, would prejudice the rights of the taxpaying public." Id., at 261. We accordingly read the 120-day provision as meant "to spur the Secretary to action, not to limit the scope of his authority," so that untimely action was still valid. Id., at 265.Nor, since Brock, have we ever construed a provision that the Government "shall" act within a specified time, without more, as a jurisdictional limit precluding action later. Thus,159a provision that a detention hearing" 'shall be held immediately upon the [detainee's] first appearance before the judicial officer'" did not bar detention after a tardy hearing, United States v. Montalvo-Murillo, 495 U. S. 711, 714 (1990) (quoting 18 U. S. C. § 3142(f)), and a mandate that the Secretary of Health and Human Services" 'shall report' " within a certain time did "not mean that [the] official lacked power to act beyond it," Regions Hospital v. Shalala, 522 U. S. 448, 459, n. 3 (1998).We have summed up this way: "if a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction." United States v. James Daniel Good Real Property, 510 U. S. 43, 63 (1993).66 No one could disagree with JUSTICE SCALIA that "[w]hen a power is conferred for a limited time, the automatic consequence of the expiration of that time is the expiration of the power," post, at 174-175 (dissenting opinion), but his assumption that the Commissioner's power to assign retirees was "conferred for a limited time" assumes away the very question to be decided. JUSTICE SCALIA'S dissent is an elaboration on this circularity, forever returning as it must to his postulate that § 9706(a) constitutes a "time-limited mandate" that "expired" on the statutory date. Post, at 177, 178.JUSTICE SCALIA'S closest approach to a nonconc1usory justification for his position is the assertion of an entirely formal interpretive rule that a date figuring in the same statutory subsection as the creation of a mandatory obligation ipso facto negates any power of tardy performance. Post, at 176-177. JUSTICE SCALIA cites no authority for his formalism, which is contradicted by United States v. Montalvo-Murillo, 495 U. S. 711 (1990), where a single statutory subsection provided that a judicial officer "shall hold a hearing" and that "[t]he hearing shall be held immediately upon the person's first appearance before the judicial officer." Id., at 714 (quoting 18 U. S. C. § 3142(f)). Conversely, Brock v. Pierce County, 476 U. S. 253 (1986), United States v. James Daniel Good Real Property, 510 U. S. 43 (1993), and Regions Hospital v. Shalala, 522 U. S. 448 (1998), ascribed no significance to the formal placement of the time limitation. One can only ask why a statute providing that "The obligor shall perform its duty before October 1, 1993," should be thought to differ fundamentally from one providing that "(i) The obligor shall perform its duty. (ii) The obligor's160Hence the oddity at this date of a claim that late official action should shift financial burdens from otherwise responsible private purses to the public fisc, let alone siphon money from funds set aside expressly for a different public purpose, like the AML Fund for land reclamation. The point would be the same, however, even if Brock were the only case on the subject. The Coal Act was adopted six years after Brock came down, when Congress was presumably aware that we do not readily infer congressional intent to limit an agency's power to get a mandatory job done merely from a specification to act by a certain time. See United States v. Wells, 519 U. S. 482, 495 (1997).7 The Brock example conse-duty shall be performed before October 1, 1993." The accepted fact is that some time limits are jurisdictional even though expressed in a separate statutory section from jurisdictional grants, see, e. g., 28 U. S. C. § 1291 (providing that the courts of appeals "shall have jurisdiction of appeals from all final decisions of the district courts of the United States"); § 2107 (providing that notice of appeal in civil cases must be filed "within thirty days after the entry of such judgment"); Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 264 (1978) (stating that the limitation in § 2107 is "'mandatory and jurisdictional''' (citation omitted)), while others are not, even when incorporated into the jurisdictional provision, see, e. g., Montalvo-Murillo, supra. Formalistic rules do not account for the difference, which is explained by contextual and historical indications of what Congress meant to accomplish. Here that intent is revealed in several obvious ways: in rules that define an operator's liability in terms of employment history, see § 9706(a), in appellate rights to test the appropriateness of an initial assignment, see infra, at 167, and in the expressed understanding that the companies that got the benefit of a worker's labor should pay for the worker's benefits, see infra, at 164-166. What else, after all, would anyone naturally expect? As opposed to the sensible indications that the initial assignment deadline was not meant to be jurisdictional, JUSTICE SCALIA'S new formal rule would thwart the statute's object and relieve the respondent companies of all responsibility, which other, less lucky operators might be required to shoulder. There undoubtedly was much political compromise in the development of the Coal Act, but politics does not justify turning the process of initial assignment into a game of chance.7 The respondent companies attempt to distinguish Brock because we noted in that case that an aggrieved party could sue under the Administrative Procedure Act to "'compel agency action unlawfully withheld or un-161quently has to mean that a statute directing official action needs more than a mandatory "shall" before the grant of power can sensibly be read to expire when the job is supposed to be done. Nothing so limiting, however, is to be found in the Coal Act: no express language supports the companies, while structure, purpose, and legislative history go against them.Structural clues support the Commissioner in the Coal Act's other instances of combining the word "shall" with a specific date that could not possibly be read to prohibit action outside the statutory period. Congress, for example, provided that the UMW A Pension Plan "shall transfer to the Combined Fund" installments of $70 million on February 1, 1993, on October 1, 1993, and on October 1, 1994. § 9705(a)(1). It could not be that a failure to make a transfer on one of those precise dates, for whatever reason, would have left the UMW A Pension Plan with no authority to make the payment; October 1, 1994, was not even a business day. Or consider the Act's mandatory provisions that the trustees of the Combined Fund "shall" be designated no later than 60 days from the enactment date, § 9702(a)(1), and that the designated trustees "shall, not later than 60 days after the enactment date," give the Commissioner certain information about benefits, § 9704(h). No one could seriously argue that the entire scheme would have been nullified if appointments had been left to the 61st day, or that trustees (whose appoint-reasonably delayed,'" 476 U. S., at 260, n. 7 (quoting 5 U. S. C. § 706(1)). The companies assert that no such remedy would have applied to the Commissioner's duty under § 9706(a). Whether or not this is the case, the companies do not argue that they were aggrieved by the failure to assign retirees by the statutory date. On the contrary, they temporarily avoided payment of premium amounts for which they would indisputably have been liable had the assignments been timely made. It therefore does not appear that there was a need to provide operators "with any remedy at all-much less the drastic remedy respondent[s] see[k] in this case-for the [Commissioner's] failure to meet the [October 1, 1993] deadline." 476 U. S., at 260, n. 7.162ments could properly have been left to the 60th day) were powerless to divulge information to the SSA after the 60-day period had expired.88 JUSTICE SCALIA concedes that his theory should not extend so far as to limit the UMWA Pension Plan's duty to transfer funds to the Combined Fund to the particular dates in § 9705(a)(I). JUSTICE SCALIA attempts to avoid such an outcome by assuming, without basis, that the "UMWA Pension Plan has the power to transfer funds" to the Combined Fund in the absence of the authorization in § 9705(a)(I). Post, at 176 (dissenting opinion). JUSTICE SCALIA'S confidence is misplaced. Prior to the Coal Act's enactment, the Vice Chairman of the Secretary of Labor's Coal Commission testified before Congress that legislative authorization was needed for such a transfer to occur: "One of the things that concerned the Commission was, first of all, our understanding of the present state of law under the Employee Retirement Income Security Act. Under that Act it is not within the power of any of the participants or signatories to transfer a pension surplus to a benefit fund. That is one of the reasons for the recommendation that a transfer be authorized." Hearing before the Subcommittee on Medicare and Long-Term Care of the Senate Committee on Finance, 102d Cong., 1st Sess., 13 (1991) (statement of Coal Commission Vice Chairman Perritt). It appears, then, that § 9705(a)(I) provides both the UMWA Pension Plan's power to act and a time limit, which according to JUSTICE SCALIA would render action on any other date ultra vires, a result that even the dissent does not embrace.JUSTICE SCALIA thinks it "debatable" that the power to appoint initial trustees survives the deadline in § 9702(a)(I). Post, at 177. In order to avoid the embarrassment of concluding that tardiness would remove all authority to appoint the initial trustees, which would render the Act a dead letter, he suggests that an initial trustee could be appointed under § 9702(b)(2), even though that provision applies only to appointment of a "successor trustee" to be made "in the same manner as the trustee being succeeded," whereas an initial trustee does not "succeed" anyone. The extreme implausibility of JUSTICE SCALIA'S suggested reading of § 9702(b)(2) points up the unreasonableness of placing a jurisdictional gloss on the § 9706(a) time limitation. It is impossible to believe that Congress meant its Herculean effort to resolve the coal industry benefit crisis to come to absolutely nothing if trustees were designated late.There is a basic lesson to be learned from JUSTICE SCALIA'S contortions to avoid the untoward results flowing from his formalistic theory that time limits on mandatory official action are always jurisdictional when they163In each of these instances, we draw a conclusion on grounds of plausibility: if Congress had meant to set a counterintuitive limit on authority to act, it would have said more than it did, and would surely not have couched its intent in language Brock had already held to lack any clear jurisdictional significance. The same may be said here.BNor do we think the result of appealing to plausibility is affected by either of two other textual features that the companies take as indicating inability to assign beneficiaries after the statutory date: the provision for unassigned beneficiary status itself, and the provision that an operator's contribution for the benefit of the unassigned shall be calculated "on the basis of assignments as of October 1, 1993." §§ 9704(f)(1), (2).1The companies characterize the provision for unassigned beneficiaries as the specification of a "consequence" for failure to assign a beneficiary to an operator or related person. Cf. Brock, 476 U. S., at 259. Specifying this consequence of failure, they say, shows that the failure must be governed by the consequence provided, not corrected by a tardy assignment corresponding to one that should have been made earlier. The specified consequence, in other words, reflects a legislative preference for finality over accurate initial assignments and creates a right on the part of the companies to rely permanently on the state of affairs as they were on October 1, 1993. We think this line of reasoning is unsound at every step.To begin with, whatever might be inferable from the fact that a specific provision addressed the failure to make aoccur in an authorizing provision. The lesson is that something is very wrong with the theory.164timely assignment, the part of the Act referring to "unassigned" beneficiaries is not any such provision. The Act speaks of the beneficiaries not in terms of the Commissioner's failure to assign them in time, but simply as "beneficiaries who are not assigned." § 9704(d). The most obvious reason for beneficiaries' being unassigned, in fact, is the disappearance of a beneficiary's former employer, leaving no signatory operator for assignment under § 9706(a). This is not to say that failure of timely assignment does not also leave a beneficiary "unassigned" under the Act. It simply means that unassigned status has no significance peculiar to failure of timely assignment.Second, to the extent that "unassigned" status is a consequence of mere untimeliness, there would be a far more obvious reason for specifying that consequence than a supposed desire for finality.9 On its face, the provision for a beneficiary left out through tardiness functions simply as a default rule to provide coverage under the new regime required to be in place by October 1, 1993; there had to be some source of funding for every beneficiary by then, and provisions for the "unassigned" employees tell the SSA what the source will be in the absence of any other. But we do not read a provision apparently made for want of something better as an absolute command to forgo something better for all time.In fact, it is unrealistic to think that Congress understood unassigned status as an enduring "consequence" of uncompleted work, for nothing indicates that Congress even foresaw that some beneficiaries matchable with operators still in9 Many "consequences," of course, are intended to induce an obligated person to take untimely action rather than bar that action altogether. Section 9704(i)(1)(C), for example, denies certain tax deductions to operators who fail to make contributions during specified periods, and § 9707(a) provides a penalty for operators who fail to pay premiums on time. The first consequence is eliminated when the operator takes action that is necessarily untimely, and the second penalty ceases to run when the premiums are paid, albeit out of time.165business might not be assigned before October 1, 1993. As the companies themselves point out, the Commissioner led Congress to believe as late as 1995 that all possible assignments had been made on time, see n. 3, supra, and such little legislative history as there is on the point tends to show that Congress assumed that any assignments that could be made at all (say, to an operator still in business) would be made on time. On October 8, 1992, on the heels of the Conference Committee Report on the Act and just before the vote in the Senate adopting the Act, Senator Wallop gave a detailed explanation of the Coal Act's provisions for unassigned beneficiaries, which assumed that the "unassigned" would be true orphans:"As a practical matter, not all beneficiaries can be assigned to a specific last signatory operator, related person or assigned operator for payment purposes. This is because in some instances, none of those persons remain in business, even as defined to include non-mining related businesses. Thus, provisions are made for unassigned beneficiary premiums." 138 Congo Rec. 34003 (1992).The Senator's report says that the transfer to the Combined Fund from the UMW A Pension Plan and AML Fund would be made because "unassigned beneficiaries were not employed by the assigned operators at the time of their retirement .... [I]f no operator remains in business under the formulations described above, that retiree becomes an unassigned beneficiary .... [The Coal Act's] purpose is to assure that any beneficiary, once assigned, remains the responsibility of a particular operator, and that the number of unassigned beneficiaries is kept to an absolute minimum." Ibid.lO It seems not to have crossed Congress's mind that10 Postenactment statements, though entitled to less weight, are to the same effect. At a hearing before the House Committee of Ways and Means on September 9, 1993, one member asked whether SSA had estab-166the category of the "unassigned" would include beneficiaries, let alone a lot of beneficiaries, who could be connected with an operator, albeit late. Providing a consequence of default was apparently just happenstance.llCongress plainly did, however, weigh finality on October 1, 1993, against accuracy of initial assignments in one circumstance, and accuracy won. Section 9704(d) speaks of "beneficiaries who are not assigned ... for [any] plan year," sug-lished procedures "to assure that beneficiaries are not improperly designated as unassigned." The Acting Commissioner of Social Security responded that employee training "emphasized that the intent of the Coal Act was to assign miners to mine operators if at all possible." 1993 Coal Act Hearing 46 (statements of Rep. Johnson and Acting Commissioner Thompson). The record of the hearing also contains a statement by the committee chairman that the Act required operators to "pay for their own retirees, and to assume a proportionate share of the liability for true 'orphans' -retirees whose companies are no longer in existence and cannot pay for the benefits." Id., at 85. At no point did any witness suggest that the unassigned beneficiary system was intended for miners who could be assigned but were not assigned before October 1, 1993, or that such miners would remain unassigned in perpetuity in order to protect the status quo on that date.n The respondent companies cite a postenactment statement by Representative Johnson that Congress had an obligation to "make sure that companies ... have time to figure out their liability and prepare to deal with it." Id., at 42. The Representative's comment did not purport to interpret the Coal Act as adopted, however, but was made in discussing whether "there should be some resolution passed" to give coal operators more time to prepare for their Coal Act obligations. Ibid.One statement in Senator Wallop's pre enactment report, which the companies do not cite, indicates an understanding that assignments would be fixed after October 1, 1993. See 138 Congo Rec. 34003 (1992) ("[T]he percentage of the unassigned beneficiary premiums allocable to each assigned operator on October 1, 1993 will remain fixed in future years"). As discussed, however, there is no indication that Congress foresaw that the Commissioner would be unable to complete assignments by the statutory date. A general statement made on the assumption that all assignments that could ever be made would be made before October 1, 1993, does not show a legislative preference for finality over accuracy now that that assumption has proven incorrect.167gesting that assignment status may change from year to year. One way it may change is by correcting an erroneous assignment. Under the Act, an operator getting notice of an assignment has 30 days to request information regarding the basis of the assignment and then 30 days from receipt of that information to ask for reconsideration. §§ 9706(f)(1)(2). If the Commissioner finds error, the Combined Fund trustees will fix it by reducing premiums and refunding any overpayments. § 9706(f)(3)(A)(i); see also § 9706(f)(3)(A)(ii). Nothing is said about finality on October 1, 1993, and no time limit whatever is imposed on the Commissioner's authority to reassign. The companies concede, as they must, that the statute permits reassignment after October 1, 1993.The companies do, however, try to limit the apparent preference for accuracy by arguing that one feature of this provision for reconsideration in § 9706(f) implicitly supports them; this specific and isolated exception to an otherwise unequivocal bar to assignments after the statutory date suggests, they say, that the bar is otherwise absolute. Again, we think no such conclusion follows.First, the argument is circular; it assumes that the availability of the § 9706(f) reconsideration process with no time limit is an exception to a bar on all assignment activity imposed by the October 1, 1993, time limit of § 9706(a). But the question, after all, is whether the October 1, 1993, mandate is in fact a bar. Section 9706(f) does not say it is, and nothing in that provision suggests it was enacted as an exception to the October 1, 1993, date. It has no language about operating notwithstanding the date specified in § 9706(a); on the contrary, it states that reassignment will be made "under subsection (a)," § 9706(f)(3)(A)(ii). But if the authority to reassign is contained in § 9706(a), then § 9706(f) is reasonably read not as lifting a jurisdictional time bar but simply as specifying a procedure for an aggrieved operator to follow in requesting the Commissioner to exercise the assignment power contained in § 9706(a) all along. In the com-168bined operation of the two subsections, there is thus no implication that the Commissioner is powerless to make an initial assignment to an operator after the specified date; any suggestion goes the other way.Second, there is no reason to read the provision in § 9706(f) for correction of erroneous assignments as implying that the Commissioner should not employ her § 9706(a) authority to make a tardy initial assignment in a situation like this. We do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it. United Dominion Industries, Inc. v. United States, 532 U. S. 822, 836 (2001). As we have held repeatedly, the canon expressio unius est exclusio alterius does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an "associated group or series," justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence. United States v. Vonn, 535 U. S. 55, 65 (2002). We explained this point as recently as last Term's unanimous opinion in Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 81 (2002):"Just as statutory language suggesting exclusiveness is missing, so is that essential extrastatutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication. The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which [is] abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded. E. Crawford, Construction of Statutes 337 (1940) (expressio unius '''properly applies only when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference'" (quoting State ex rel. Curtis v. De Corps,169134 Ohio St. 295, 299, 16 N. E. 2d 459, 462 (1938))); United States v. Vonn, supra."As in Echazabal, respondents here fail to show any reason that Congress would have considered reassignments after appeal "to go hand in hand" with tardy initial assignments. Since Congress apparently never thought that initial assignments would be late, see supra, at 164-167, the better inference is that what we face here is nothing more than a case unprovided for.1212 There is, of course, no "'case unprovided for' exception" to the expressio unius canon, post, at 181 (SCALIA, J., dissenting). It is merely that the canon does not tell us that a case was provided for by negative implication unless an item unmentioned would normally be associated with items listed.The companies emphasize that § 9704(f)(2)(B) requires that beneficiaries whose operator goes out of business must be treated as unassigned and cannot be reassigned. Even assuming that a provision that goes to the definition of "applicable percentage" and does not directly implicate assignments has the effect the companies suggest, the most that could be said is that Congress wished to identify the first, most responsible operator for a given retiree, and not to follow that with a second assignment to a less responsible operator if the initial assigned operator left the business. This interest does not indicate an object of date-specific finality over accuracy in the first assignment; on the contrary, it opts for finality only once an accurate initial assignment has been made. In the absence of a more exact explanation for this arrangement, we suppose the explanation is good political horse trading. But provisions that by their terms govern after the initial assignment is made tell us nothing about the period in which an initial assignment may be made. In fact, the permissibility under § 9706(f) of postappeal reassignment after October 1, 1993, makes plain that Congress was not "insisting upon as perfect a matchup as possible up to October 1,1993, and then prohibiting future changes, both by way of initial assignment or otherwise," post, at 183 (SCALIA, J., dissenting), as JUSTICE SCALIA himself agrees. On the contrary, the reassignment provision indicates that a system of accuracy "in initial assignments, whether made before the deadline or afterward," is precisely what the Act envisions. Ibid. Here, as throughout this opinion, "accuracy" refers not to an elusive system of "perfect fairness," ibid., but to assignments by the Commissioner following the scheme set out in §§ 9706(a)(I)-(3).170The remaining textual argument for the companies' side rests on the definition of an operator's "applicable percentage" of the overall obligation of all assignee operators (or related persons) to fund benefits for the unassigned. Under § 9704(f)(1), it is defined as the percentage of the operator's own assigned beneficiaries among all assigned beneficiaries "determined on the basis of assignments as of October 1, 1993" (parenthesis omitted). The companies argue that the specification "as of" October 1, 1993, means that an assigned operator's percentage of potential liability for the benefit of the unassigned is fixed according to the assignments made at that date, subject only to specific exceptions set out in § 9704(f)(2), requiring a change in the percentage when erroneously assigned retirees are reassigned or assignee operators go out of business. The companies contend that their position rests on plain meaning: "as of" the date means "as assignments actually stand" on the date. Yet the words "as of," as used in the statute, can be read another way: since Congress required that all possible assignments be complete on October 1, 1993, see § 9706(a), it is equally fair to read assignments "as of" that date to mean "assignments as they shall be on that date, assuming the Commissioner complies with our command." The companies' reading is hospitable to early finality of assignments, while the alternative favors completeness and accuracy before finality prevails.Once it is seen that there is no "plain" reading, however, there is nothing left of the "as of" argument except its stress that the applicable percentage can be modified only in accordance with the two exceptions recognizing changes for initial error or the demise of an assignee operator. The answer to this point, of course, has already been given. The enunciation of two exceptions does not imply an exclusion of a third unless there is reason to think the third was at least considered, whereas there is good reason to conclude that when Congress adopted the language in question it did not171foresee a failure to make timely assignments. See supra, at 168-169. The phrase "as of" cannot be read to govern a situation that Congress clearly did not contemplate,13 nor does it require the absolute finality of assignments urged by the companies.IVThis much is certain: the Coal Act rests on Congress's stated finding that it was necessary to "identify persons most responsible for plan liabilities," and on its express desire to "provide for the continuation of a privately financed selfsufficient program for the delivery of health care benefits," Energy Policy Act of 1992, Pub. L. 102-486, § 19142, 106 Stat. 3037.14 In the words of Senator Wallop's report delivered shortly before enactment, the statute is "designed to allocate the greatest number of beneficiaries in the Plans to a prior13 The same may be said of the provision for an initial trustee to serve until November 1, 1993, § 9702(b)(3)(B), contrary to JUSTICE SCALIA'S view. Post, at 182 (dissenting opinion).14 Under the respondent companies' view, if the transfers from the AML Fund prove insufficient to cover the benefits of all unassigned beneficiaries, an operator that received no assignments prior to October 1, 1993, would not have to contribute a penny to the unassigned beneficiary poolsolely due to the Commissioner's fortuitous failure to make all assignments by the statutory deadline. At the same time, operators that received full assignments prior to October 1, 1993, would be forced to cover more than their fair share of unassigned beneficiaries' premiums.Although JUSTICE SCALIA sees the Act as rife with "seemingly unfair and inequitable provisions," ibid. (dissenting opinion), even his view is no reason to assume that Congress meant contested provisions to be construed in the most unfair and inequitable manner possible. In any event, JUSTICE SCALIA'S citation of § 9704(f)(2)(B) does not help his position. It provides a clear statutory solution to a problem Congress anticipated: the end of an assigned operator's business. Had Congress propounded a response to the issue now before us as clear as § 9704(f)(2)(B), there would doubtless have been no split in the Courts of Appeals and no cases for us to review. Given the absence of an express provision, the statute's goals are best served by treating operators the way Congress intended them to be treated, that is, by allowing the Commissioner to identify the operators most responsible.172responsible operator. For this reason, definitions are intended by the drafters to be given broad interpretation to accomplish this goal." 138 Congo Rec. 34001 (1992).15 To accept the companies' argument that the specified date for action is jurisdictional would be to read the Act so as to allocate not the greatest, but the least, number of beneficiaries to a responsible operator. The way to reach the congressional objective, however, is to read the statutory date as a spur to prompt action, not as a bar to tardy completion of the business of ensuring that benefits are funded, as much as possible, by those identified by Congress as principally responsible.The judgments of the Court of Appeals in both cases are accordinglyReversed

OCTOBER TERM, 2002SyllabusBARNHART, COMMISSIONER OF SOCIAL SECURITY v. PEABODY COAL CO. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 01-705. Argued October 8, 2002-Decided January 15,2003*Under the Coal Industry Retiree Health Benefit Act of 1992 (Coal Act or Act), the Commissioner of Social Security "shall, before October 1, 1993," assign each coal industry retiree eligible for benefits under the Act to an extant operating company-a "signatory operator" --or a related entity, which shall then be responsible for funding the beneficiary's benefits, 26 U. S. C. § 9706(a). Assignment to a signatory operator binds the operator to pay an annual premium to the United Mine Workers of America Combined Benefit Fund (Combined Fund), which administers the benefits. The premium has up to three components, a health benefit premium, a death benefit premium, and a premium for retirees who are not assigned to a particular operator, but whose benefits are paid from the Combined Fund as if they were assigned. An important object of the Coal Act was providing stable funding for the health benefits of such "orphan retirees." Although signatory operators will only be required to pay an unassigned beneficiaries premium if funding from the United Mine Workers of America 1950 Pension Plan (UMWA Pension Plan) and the Abandoned Mine Land Reclamation Fund (AML Fund) runs out, each signatory operator's unassigned beneficiaries premium is based on the number of its assigned beneficiaries, such that the signatory with the most assigned retirees would be required to cover the greatest share of the benefits payable to unassigned beneficiaries. In two separate actions before different District Courts, respondent companies challenged initial assignments made to them after the October 1, 1993, deadline, claiming that the date set a time limit on the Commissioner's assignment power, so that a beneficiary not assigned on that date must be left unassigned for life. If the challenged assignments are void, the corresponding benefits must be financed by transfers from the UMWA Pension Plan, the AML Fund, and, if necessary, unassigned beneficiaries premiums paid by signatory operators to whom*Together with Barnhart, Commissioner of Social Security v. Bellaire Corp. et al. (see this Court's Rule 12.4), and No. 01-715, Holland et al. v. Bellaire Corp. et al., also on certiorari to the same court.150Syllabustimely assignments were made. The companies obtained summary judgments, and the Sixth Circuit affirmed.Held: Initial assignments made after October 1, 1993, are valid despite their untimeliness. Pp. 157-172.(a) The companies' contention that the Commissioner's failure is "jurisdictional," so that affected beneficiaries may never be assigned and their former employers may go scot free, is as unsupportable as it is counterintuitive. pp. 157-171.(1) This Court has rejected an argument comparable to the companies' position that couching the duty in terms of the mandatory "shall" together with a specific deadline leaves the Commissioner with no authority to make an initial assignment on or after October 1, 1993. In Brock v. Pierce County, 476 U. S. 253, the Court found that the Secretary of Labor's 120-day deadline to issue a final determination on a complaint of federal grant fund misuse was meant to spur him to action, not limit the scope of his authority, so that his untimely action was valid. Nor, since Brock, has this Court ever construed a provision that the Government "shall" act within a specified time, without more, as a jurisdictional limit precluding action later. If a statute does not specify a consequence for noncompliance with statutory timing provisions, federal courts will not ordinarily impose their own coercive sanction. United States v. James Daniel Good Real Property, 510 U. S. 43, 63. Hence the oddity of a claim at this date that late official action should shift financial burdens from otherwise responsible private purses to the public fisc, let alone siphon money from funds set aside for a different public purpose, like the AML Fund for land reclamation. The point would be the same even if Brock were the only case on the subject. The Coal Act was passed six years after Brock, when Congress was presumably aware that the Court does not readily infer congressional intent to limit an agency's power to finish a mandatory job merely from a specification to act by a certain time. Nothing more limiting than "shall" is to be found in the Coal Act: no express language supports the companies, while structure, purpose, and legislative history go against them. Structural clues support the Commissioner in the Act's other instances of combining "shall" with a specific date that could not possibly be read to prohibit action outside the statutory period. See §§ 9705(a)(I), 9702(a)(I), 9704(h). In each of these instances, a conclusion is based on plausibility grounds: had Congress meant to set a counterintuitive limit on authority to act, it would have said more than it did, and would surely not have couched its intent in language Brock had already held to lack any clear jurisdictional significance. Pp. 157-163.151Full Text of Opinion

1997_96-910

158 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSSyllabusLiberty Mut. Ins. Co., 367 U. S. 348, 354-355, require that an equivalent exception be read into the statute. To the extent that these cases might be read to establish limits on the scope of federal jurisdiction, they address only whether a cause of action for judicial review of a state administrative decision is within the district courts' original jurisdiction under the diversity statute, § 1332, not whether it is a claim within the district courts' pendent jurisdiction in federal question cases. Even assuming, arguendo, that the decisions are relevant to the latter question, both indicate that federal jurisdiction generally encompasses judicial review of state administrative decisions. See Stude, supra, at 578-579; Horton, supra, at 352. pp. 168-172.(d) That § 1367(a) authorizes district courts to exercise supplemental jurisdiction over state law claims for on-the-record review of administrative decisions does not mean that the jurisdiction must be exercised in all cases. The district courts can decline to exercise pendent jurisdiction over such claims in the interests of judicial economy, convenience, fairness, and comity. See Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 357; Gibbs, supra, at 726-727. The supplemental jurisdiction statute enumerates situations in which district courts can refuse to exercise supplemental jurisdiction, § 1367(c), taking into account such factors as the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims. District courts also may be obligated not to decide state law claims (or to stay their adjudication) where one of the abstention doctrines applies. See, e. g., Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 716. Pp. 172-174.(e) ICS' contentions that abstention principles required the District Court to decline to exercise supplemental jurisdiction, and that the court should have done so under § 1367(c), are left for the Seventh Circuit to address in the first instance. P. 174.91 F.3d 981, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 175.Benna Ruth Solomon argued the cause for petitioners.With her on the briefs were Lawrence Rosenthal and Anne Berleman Kearney.159Richard J. Brennan argued the cause for respondents.With him on the brief were Kimball R. Anderson and Thomas C. Cronin. *JUSTICE O'CONNOR delivered the opinion of the Court. The city of Chicago, like municipalities throughout the country, has an ordinance that provides for the designation and protection of historical landmarks. Chicago Municipal Code, Art. XVII, §§2-120-580 through 2-120-920 (1990). The city's Landmarks Ordinance is administered by the Commission on Chicago Historical and Architectural Landmarks (Chicago Landmarks Commission or Commission). Pursuant to the Illinois Administrative Review Law, Ill. Compo Stat., ch. 735, §§ 5/3-103,5/3-104 (Supp. 1997), judicial review of final decisions of a municipal landmarks commission lies in state circuit court. In this case, we are asked to consider whether a lawsuit filed in the Circuit Court of Cook County seeking judicial review of decisions of the Chicago Landmarks Commission may be removed to federal district court, where the case contains both federal constitutional and state administrative challenges to the Commission's decisions.IRespondents International College of Surgeons and the United States Section of the International College of Surgeons (jointly ICS) own two properties on North Lake Shore Drive in the city of Chicago. In July 1988, the Chicago Landmarks Commission made a preliminary determination that seven buildings on Lake Shore Drive, including two*Briefs of amici curiae urging reversal were filed for the State of Indiana by Jeffrey A. Modisett, Attorney General, and Geoffrey Slaughter and Anthony Scott Chinn, Deputy Attorneys General; for Defenders of Property Rights by Nancie G. Marzulla; and for the National Trust for Historic Preservation et al. by Paul M. Smith, Elizabeth S. Merritt, Laura S. Nelson, and Edith M. Shine.160160 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSmansions on ICB' properties, qualified for designation as a landmark district under the city's Landmarks Ordinance. In June 1989, the city council enacted an ordinance (the Designation Ordinance) designating the landmark district.In February 1989, after the Commission's preliminary determination, ICB executed a contract for the sale and redevelopment of its properties. The contract called for the developer, whose interest has since been acquired by respondent Robin Construction Company, to demolish all but the facades of the two mansions and to construct a high-rise condominium tower. In October 1990, ICB applied to the Landmarks Commission for the necessary permits to allow demolition of a designated landmark. The Commission denied the permit applications, finding that the proposed demolition would "adversely affect and destroy significant historical and architectural features of the [landmark] district." App. 49. ICB then reapplied for the permits under a provision of the Landmarks Ordinance allowing for exceptions in cases of economic hardship. The Commission again denied the applications, finding that ICB did not qualify for the hardship exception.Following each of the Commission's decisions, ICB filed actions for judicial review in the Circuit Court of Cook County pursuant to the Illinois Administrative Review Law. Both of ICB' complaints raised a number of federal constitutional claims, including that the Landmarks and Designation Ordinances, both on their face and as applied, violate the Due Process and Equal Protection Clauses and effect a taking of property without just compensation under the Fifth and Fourteenth Amendments, and that the manner in which the Commission conducted its administrative proceedings violated ICB' rights to due process and equal protection. The complaints also sought relief under the Illinois Constitution as well as administrative review of the Commission's decisions denying the permits.161The defendants (collectively City), who are petitioners in this Court, removed both lawsuits to the District Court for the Northern District of Illinois on the basis of federal question jurisdiction. The District Court consolidated the cases. After dismissing some of the constitutional claims and exercising supplemental jurisdiction over the state law claims, the court granted summary judgment in favor of the City, ruling that the Landmarks and Designation Ordinances and the Commission's proceedings were consistent with the Federal and State Constitutions, and that the Commission's findings were supported by the evidence in the record and were not arbitrary and capricious.1The Court of Appeals for the Seventh Circuit reversed and remanded the case to state court, concluding that the District Court was without jurisdiction. 91 F.3d 981 (1996). The Seventh Circuit began its analysis by construing this Court's decisions in Chicago, R. 1. & P. R. Co. v. Stude, 346 U. S. 574 (1954), and Horton v. Liberty Mut. Ins. Co., 367 U. S. 348 (1961), which it read to suggest that "the character of the state judicial action" is significant when assessing whether proceedings to review state and local administrative decisions can be removed to federal court. 91 F. 3d, at 988. The court reasoned that, while Stude and Horton establish that proceedings to conduct de novo review of state agency action are subject to removal, the propriety of removing proceedings involving deferential review is still an open question. Relying on decisions from other Courts of Appeals that interpret the scope of a district court's diversity jurisdiction, the court determined that deferential review of state agency action was an appellate function that was "inconsist-1 The District Court also dismissed a third action filed by lCS, which is not in issue here. That action sought review of lCS' unsuccessful efforts to obtain approval for its proposed development under the Lake Michigan and Chicago Lakefront Protection Ordinance, Chicago Municipal Code, ch. 194B (1973), which, in addition to the Designation Ordinance, restricts modification of lCS' properties.162162 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSent with the character of a court of original jurisdiction." 91 F. 3d, at 990 (citing Fairfax County Redevelopment & Housing Authority v. W M. Schlosser Co., 64 F.3d 155 (CA4 1995), and Armistead v. C & M Transport, Inc., 49 F.3d 43 (CAl1995)). Accordingly, the court concluded, a proceeding to review state administrative action under a deferential standard is not a "civil action" within a district court's "original jurisdiction" under the removal statute, 28 U. S. C. § 1441(a), and so cannot be removed. 91 F. 3d, at 990.The court then applied those principles to this case. The court began by observing that, under the Illinois Administrative Review Law, judicial review of local administrative decisions is deferential and not de novo, because the reviewing court must accept the agency's findings of fact as presumptively correct and cannot hear new evidence. Id., at 991-992 (discussing Ill. Compo Stat., ch. 735, § 5/3-110 (Supp. 1997)).2 Of the various claims raised in 1CS' complaints, the court explained, the as-applied constitutional challenges and the claims requesting administrative review of the Commission's decisions are bound by the administrative record, but the facial constitutional challenges are independent of the record and so would be removable to federal court if brought alone. The court then addressed whether, "when the state action involves both claims that, if brought alone, would be removable to federal court [and] issues that clearly are grounded in the administrative record, removal of the entire state action to the district court is possible." 91 F. 3d, at 993. The court ruled that, because some of the claims involve deferen-2 Section 5/3-110 provides: "Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed. The hearing and determination shall extend to all questions of law and fact presented by the entire record before the court. No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct."163tial review, "the case removed to the district court cannot be termed a 'civil action ... of which the district courts ... have original jurisdiction' within the meaning of" the removal statute. Id., at 994 (quoting 28 U. S. C. § 1441(a)).We granted certiorari to address whether a case containing claims that local administrative action violates federal law, but also containing state law claims for on-the-record review of the administrative findings, is within the jurisdiction of federal district courts. 520 U. S. 1164 (1997). Because neither the jurisdictional statutes nor our prior decisions suggest that federal jurisdiction is lacking in these circumstances, we now reverse.II AWe have reviewed on several occasions the circumstances in which cases filed initially in state court may be removed to federal court. See, e. g., Caterpillar Inc. v. Williams, 482 U. S. 386, 391-392 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 63 (1987); Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 7-12 (1983). As a general matter, defendants may remove to the appropriate federal district court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U. S. C. § 1441(a). The propriety of removal thus depends on whether the case originally could have been filed in federal court. Caterpillar Inc., supra, at 392; Franchise Tax Bd., supra, at 8. The district courts have original jurisdiction under the federal question statute over cases "arising under the Constitution, laws, or treaties of the United States." § 1331. "It is long settled law that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law." Metropolitan Life Ins. Co., supra, at 63.164164 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSIn this case, there can be no question that lCS' state court complaints raised a number of issues of federal law in the form of various federal constitutional challenges to the Landmarks and Designation Ordinances, and to the manner in which the Commission conducted the administrative proceedings. It is true, as lCS asserts, that the federal constitutional claims were raised by way of a cause of action created by state law, namely, the Illinois Administrative Review Law. See Howard v. Lawton, 22 Ill. 2d 331, 333, 175 N. E. 2d 556, 557 (1961) (constitutional claims may be raised in a complaint for administrative review). As we have explained, however, "[e]ven though state law creates [a party's] causes of action, its case might still 'arise under' the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law." Franchise Tax Bd., 463 U. S., at 13; see also id., at 27-28 (case arises under federallaw when "federal law creates the cause of action or ... the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law"); Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 112 (1936) (federal question exists when a "right or immunity created by the Constitution or laws of the United States [is] an element, and an essential one, of the plaintiff's cause of action"). lCS' federal constitutional claims, which turn exclusively on federal law, unquestionably fit within this rule. Accordingly, lCS errs in relying on the established principle that a plaintiff, as master of the complaint, can "choose to have the cause heard in state court." Caterpillar Inc., 482 U. S., at 398399. By raising several claims that arise under federal law, lCS subjected itself to the possibility that the City would remove the case to the federal courts. See ibid.As for lCS' accompanying state law claims, this Court has long adhered to principles of pendent and ancillary jurisdiction by which the federal courts' original jurisdiction over federal questions carries with it jurisdiction over state law165claims that "derive from a common nucleus of operative fact," such that "the relationship between [the federal] claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'" Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966); see Hurn v. Oursler, 289 U. S. 238 (1933); Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909). Congress has codified those principles in the supplemental jurisdiction statute, which combines the doctrines of pendent and ancillary jurisdiction under a common heading. 28 U. S. C. § 1367. The statute provides, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." § 1367(a). That provision applies with equal force to cases removed to federal court as to cases initially filed there; a removed case is necessarily one "of which the district courts ... have original jurisdiction." See § 1441(a); Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 350-351 (1988) (discussing pendent claims removed to federal court).Here, once the case was removed, the District Court had original jurisdiction over ICS' claims arising under federal law, and thus could exercise supplemental jurisdiction over the accompanying state law claims so long as those claims constitute "other claims that ... form part of the same case or controversy." § 1367(a). We think it clear that they do. The claims for review of the Commission's decisions are legal "claims," in the sense that that term is generally used in this context to denote a judicially cognizable cause of action. And the state and federal claims "derive from a common nucleus of operative fact," Gibbs, supra, at 725, namely, ICS' unsuccessful efforts to obtain demolition permits from the Chicago Landmarks Commission. That is all the statute requires to establish supplemental jurisdiction (barring an166166 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSexpress statutory exception, see § 1367(a)). 1CS seemed to recognize as much in the amended complaint it filed in the District Court following removal, stating that the nonfederal claims "are subject to this Court's pendent jurisdiction." App. 143. We conclude, in short, that the District Court properly exercised federal question jurisdiction over the federal claims in 1CS' complaints, and properly recognized that it could thus also exercise supplemental jurisdiction over 1CS' state law claims.B1CS, urging us to adopt the reasoning of the Court of Appeals, argues that the District Court was without jurisdiction over its actions because they contain state law claims that require on-the-record review of the Landmarks Commission's decisions. A claim that calls for deferential judicial review of a state administrative determination, 1CS asserts, does not constitute a "civil action ... of which the district courts of the United States have original jurisdiction" under 28 U. S. C. § 1441(a).That reasoning starts with an erroneous premise. Because this is a federal question case, the relevant inquiry is not, as 1CS submits, whether its state claims for on-therecord review of the Commission's decisions are "civil actions" within the "original jurisdiction" of a district court:The District Court's original jurisdiction derives from 1CS' federal claims, not its state law claims. Those federal claims suffice to make the actions "civil actions" within the "original jurisdiction" of the district courts for purposes of removal. § 1441(a). The Court of Appeals, in fact, acknowledged that 1CS' federal claims, "if brought alone, would be removable to federal court." 91 F. 3d, at 993. Nothing in the jurisdictional statutes suggests that the presence of related state law claims somehow alters the fact that 1CS' complaints, by virtue of their federal claims, were "civil actions" within the federal courts' "original jurisdiction."167Having thus established federal jurisdiction, the relevant inquiry respecting the accompanying state claims is whether they fall within a district court's supplemental jurisdiction, not its original jurisdiction. And that inquiry turns, as we have discussed, on whether the state law claims "are so related to [the federal] claims ... that they form part of the same case or controversy." § 1367(a); see Gibbs, supra, at 725, n. 12 (distinguishing between "the issue whether a claim for relief qualifies as a case 'arising under ... the Laws of the United States' and the issue whether federal and state claims constitute one 'case' for pendent jurisdiction purposes"). IGS' proposed approach-that we first determine whether its state claims constitute "civil actions" within a district court's "original jurisdiction"-would effectively read the supplemental jurisdiction statute out of the books:The whole point of supplemental jurisdiction is to allow the district courts to exercise pendent jurisdiction over claims as to which original jurisdiction is lacking.The dissent attributes a different line of argument to IGS.Post, at 186-187. That argument, roughly speaking, is that federal jurisdiction would lie over IGS' federal claims if they had been brought under 42 U. S. G. § 1983, because review would then range beyond the administrative record; but IGS deliberately confined review of its claims to the administrative record by raising them under the Illinois Administrative Review Law, thereby assuring itself a state forum. See Brief for Respondents 21-26. The essential premise of IGS' argument is that its actions arise solely under state law and so are not within the district courts' federal question jurisdiction, and that § 1367(a)-which presupposes a "civil action of which the district courts have original jurisdiction"-is thus inapplicable. Id., at 15-21.That reasoning is incorrect because IGS in fact raised claims not bound by the administrative record (its facial constitutional claims), see supra, at 162, and because, as we have explained, see supra, at 164, the facial and as-applied federal168168 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSconstitutional claims raised by 1CS "arise under" federal law for purposes of federal question jurisdiction. See New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U. S. 350, 372 (1989) ("[A] facial challenge to an allegedly unconstitutional ... zoning ordinance" is a claim "which we would assuredly not require to be brought in state courts"). 1CS submits, however, that although its complaints contain some claims that arise under federal law, its actions nonetheless do not fall within the district courts' original jurisdiction over federal questions. Brief for Respondents 20-21, 26. Understandably, 1CS does not rest this proposition on the notion that its federal claims are so insubstantial as not to establish federal jurisdiction. See, e. g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 817 (1986); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 70-71 (1978); Gibbs, 383 U. S., at 725. It follows, then, that 1CS' view that the district courts lack jurisdiction even over the federal claims in its actions stems from the mistaken idea-embraced by the court below, see 91 F. 3d, at 993-994, and n. 14-that the other, nonfederal claims somehow take the complaints in their entirety (including the federal claims) out of the federal courts' jurisdiction. 1CS' rationale thus ultimately devolves into the erroneous argument we ascribe to it: that its state law claims for onthe-record review of the Commission's decisions must be "civil actions" within the district courts' "original jurisdiction" in order for its complaints to be removable to federal court.CTo the extent that 1CS means to suggest not only that a claim involving deferential review of a local administrative decision is not a "civil action" in the "original jurisdiction" of the district courts, but also that such a claim can never constitute a claim "so related to claims ... within such original jurisdiction that [it] formes] part of the same case or controversy" for purposes of supplemental jurisdiction, we dis-169agree with its reasoning. There is nothing in the text of § 1367(a) that indicates an exception to supplemental jurisdiction for claims that require on-the-record review of a state or local administrative determination. Instead, the statute generally confers supplemental jurisdiction over "all other claims" in the same case or controversy as a federal question, without reference to the nature of review. Congress could of course establish an exception to supplemental jurisdiction for claims requiring deferential review of state administrative decisions, but the statute, as written, bears no such construction.Nor do our decisions in Chicago, R. 1. & P. R. Co. v. Stude, 346 U. S. 574 (1954), and Horton v. Liberty Mut. Ins. Co., 367 U. S. 348 (1961), on which ICS principally relies, require that we read an equivalent exception into the statute. Both Stude and Horton-to the extent that either might be read to establish limits on the scope of federal jurisdiction-address only whether a cause of action for judicial review of a state administrative decision is within the district courts' original jurisdiction under the diversity statute, 28 U. S. C. § 1332, not whether it is a claim within the district courts' pendent jurisdiction in federal question cases. Even assuming, arguendo, that the decisions are relevant to the latter question, both Stude and Horton indicate that federal jurisdiction generally encompasses judicial review of state administrative decisions.In Stude, for instance, a railroad company challenging the amount of a condemnation assessment attempted to establish federal jurisdiction by two separate routes. First, the railroad filed a complaint seeking review of the amount of the assessment in federal court on the basis of diversity jurisdiction, and second, it filed an appeal from the assessment in state court and then undertook to remove that case to federal court. As to the action filed directly in federal court, this Court upheld its dismissal, finding that state eminent domain proceedings were still pending and that the com-170170 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSplaint thus improperly attempted to "separate the question of damages and try it apart from the substantive right from which the claim for damages arose." 346 U. S., at 582. 1CS emphasizes the Court's observation in this interlocutory context that a district court "does not sit to review on appeal action taken administratively or judicially in a state proceeding." Id., at 581. By that remark, however, the Court did not suggest that jurisdiction turned on whether judicial review of the administrative determination was deferential or de novo. The decision, in fact, makes no reference to the standard of review.Moreover, reading the Court's statement broadly to suggest that federal courts can never review local administrative decisions would conflict with the Court's treatment of the second action in the case: the railroad's attempt to remove its state court appeal to federal court. With respect to that action, the Court held that removal was improper in the particular circumstances because the railroad was the plaintiff in state court. But the Court observed that, as a general matter, a state court action for judicial review of an administrative condemnation proceeding is "in its nature a civil action and subject to removal by the defendant to the United States District Court." Id., at 578-579; see County of Allegheny v. Frank Mashuda Co., 360 U. S. 185, 195 (1959) ("Although holding that the respondent could not remove a state condemnation case to the Federal District Court on diversity grounds because he was the plaintiff in the state proceeding, the Court [in Stude] clearly recognized that the defendant in such a proceeding could remove in accordance with § 1441 and obtain a federal adjudication of the issues involved"). If anything, then, Stude indicates that the jurisdiction of federal district courts encompasses 1CS' claims for review of the Landmarks Commission's decisions.Horton is to the same effect, holding that a District Court had jurisdiction under the diversity statute to review a state171workers' compensation award. 367 U. S., at 352. The bulk of the opinion addresses the central issue in the case, whether the suit satisfied the amount-in-controversy threshold for diversity jurisdiction. See id., at 352-354; id., at 355-363 (Clark, J., dissenting). But the plaintiff also alleged, based on Stude, that diversity jurisdiction was lacking because the action was an appeal from a state administrative order, to which the Court simply responded that, "[a]side from many other relevant distinctions which need not be pointed out," the suit in fact was a "trial de novo" and not an appellate proceeding. 367 U. S., at 354-355. The Court did not purport to hold that the de novo standard was a precondition to federal jurisdiction.Any negative inference that might be drawn from that aspect of Horton, even assuming that the decision speaks to the scope of supplemental (and not diversity) jurisdiction, would be insufficient to trump the absence of indication in § 1367(a) that the nature of review bears on whether a claim is within a district court's supplemental jurisdiction. After all, district courts routinely conduct deferential review pursuant to their original jurisdiction over federal questions, including on-the-record review of federal administrative action. See Califano v. Sanders, 430 U. S. 99, 105-107 (1977). Nothing in § 1367(a) suggests that district courts are without supplemental jurisdiction over claims seeking precisely the same brand of review of local administrative determinations. Cf. Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 206 (1982) (interpreting Individuals with Disabilities Education Act, 20 U. S. C. § 1415(e), which contemplates deferential review of state administrative action).The dissent disagrees with our conclusion that 28 U. S. C. § 1367(a) encompasses state law claims for on-the-record review of local administrative action, but it is unclear exactly why, for the dissent never directly challenges our application172172 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSof that statute to ICS' claims. In fact, the dissent only makes passing reference to the terms of § 1367(a), which, in our view, resolve the case. In this light, the dissent's candid misgivings about attempting to square its position with the text of the jurisdictional statutes, see post, at 176, 183-184, are understandable. And the failure to come to grips with the text of § 1367(a) explains the dissent's repeated assumption, post, at 175, 177, 182, 185-186, that the jurisdictional analysis of diversity cases would be no different. But to decide that state law claims for on-the-record review of a local agency's decision fall within the district courts' "supplemental" jurisdiction under § 1367(a), does not answer the question, nor do we, whether those same claims, if brought alone, would substantiate the district courts' "original" jurisdiction over diversity cases under § 1332. Ultimately, the dissent never addresses this case as it is presented: a case containing federal questions within the meaning of § 1331 and supplemental state law claims within the meaning of § 1367(a).IIIOf course, to say that the terms of § 1367(a) authorize the district courts to exercise supplemental jurisdiction over state law claims for on-the-record review of administrative decisions does not mean that the jurisdiction must be exercised in all cases. Our decisions have established that pendent jurisdiction "is a doctrine of discretion, not of plaintiff's right," Gibbs, 383 U. S., at 726, and that district courts can decline to exercise jurisdiction over pendent claims for a number of valid reasons, id., at 726-727. See also Cohill, 484 U. S., at 350 ("As articulated by Gibbs, the doctrine of pendent jurisdiction thus is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the manner that most sensibly accommodates a range of concerns and values"). Accordingly, we have indicated that "district courts [should] deal with cases involving pendent claims in the manner that best serves the principles of econ-173omy, convenience, fairness, and comity which underlie the pendent jurisdiction doctrine." Id., at 357.The supplemental jurisdiction statute codifies these principles. After establishing that supplemental jurisdiction encompasses "other claims" in the same case or controversy as a claim within the district courts' original jurisdiction, § 1367(a), the statute confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise:"(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if"(1) the claim raises a novel or complex issue of State law,"(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,"(3) the district court has dismissed all claims over which it has original jurisdiction, or"(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U. S. C. § 1367(c).Depending on a host of factors, then-including the circumstances of the particular case, the nature of the state law claims, the character of the governing state law, and the relationship between the state and federal claims-district courts may decline to exercise jurisdiction over supplemental state law claims. The statute thereby reflects the understanding that, when deciding whether to exercise supplemental jurisdiction, "a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity." Cohill, supra, at 350. In this case, the District Court decided that those interests would be best served by exercising jurisdiction over ICS' state law claims. App. to Pet. for Cert. 45a-46a.174174 CHICAGO v. INTERNATIONAL COLLEGE OF SURGEONSIn addition to their discretion under § 1367(c), district courts may be obligated not to decide state law claims (or to stay their adjudication) where one of the abstention doctrines articulated by this Court applies. Those doctrines embody the general notion that "federal courts may decline to exercise their jurisdiction, in otherwise exceptional circumstances, where denying a federal forum would clearly serve an important countervailing interest, for example where abstention is warranted by considerations of proper constitutional adjudication, regard for federal-state relations, or wise judicial administration." Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 716 (1996) (citations and internal quotation marks omitted). We have recently outlined the various abstention principles, see ibid., and need not elaborate them here except to note that there may be situations in which a district court should abstain from reviewing local administrative determinations even if the jurisdictional prerequisites are otherwise satisfied.IVThe District Court properly recognized that it could exercise supplemental jurisdiction over ICS' state law claims, including the claims for on-the-record administrative review of the Landmarks Commission's decisions. ICS contends that abstention principles required the District Court to decline to exercise supplemental jurisdiction, and also alludes to its contention below that the District Court should have refused to exercise supplemental jurisdiction under 28 U. S. C. § 1367(c). We express no view on those matters, but think it the preferable course to allow the Court of Appeals to address them in the first instance. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusCITY OF CHICAGO ET AL. v. INTERNATIONAL COLLEGE OF SURGEONS ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 96-910. Argued October 14, 1997-Decided December 15,1997Following the preliminary determination of Chicago's Historical and Architectural Landmarks Commission (Commission) that two of respondent ICS' buildings qualified for protection under the city's Landmarks Ordinance, the city enacted a Designation Ordinance creating a landmark district that included the buildings. ICS then applied to the Commission for permits to allow demolition of all but the facades of the buildings. The Commission denied ICS' permit applications. ICS then filed actions in state court under the Illinois Administrative Review Law for judicial review of the Commission's decisions, alleging, among other things, that the two ordinances and the manner in which the Commission conducted its proceedings violated the Federal and State Constitutions, and seeking on-the-record review of the Commission's decisions. Petitioners (collectively the City) removed the suits to Federal District Court on the basis of federal question jurisdiction. The District Court consolidated the cases, exercised supplemental jurisdiction over the state law claims, and granted summary judgment for the City, ruling that the ordinances and the Commission's proceedings were consistent with the Federal and State Constitutions and that the Commission's findings were supported by the evidence and were not arbitrary and capricious. The Seventh Circuit reversed and remanded to state court, ruling that a federal district court lacks jurisdiction of a case containing state law claims for on-the-record review of local administrative action.Held: A case containing claims that local administrative action violates federal law, but also containing state law claims for on-the-record review of the administrative findings, can be removed to federal district court. Pp. 163-174.(a) The District Court properly exercised federal question jurisdiction over ICS' federal claims, and properly recognized that it could thus also exercise supplemental jurisdiction over ICS' state law claims. Defendants generally may remove "any civil action brought in a State court of which the [federal] district courts ... have original jurisdiction." 28 U. S. C. § 1441(a). The district courts' original jurisdiction157encompasses cases "arising under the Constitution, laws, or treaties of the United States," § 1331, and an action satisfies this requirement when the plaintiff's well-pleaded complaint raises issues of federal law, Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 63. lCS' state court complaints raised a number of such issues in the form of various federal constitutional challenges to the Landmarks and Designation Ordinances, and to the manner in which the Commission conducted its proceedings. Once the case was removed, lCS' state law claims were properly before the District Court under the supplemental jurisdiction statute. That statute provides, "in any civil action of which the district courts have original jurisdiction, the[y] shall have supplemental jurisdiction over all other claims that ... form part of the same case or controversy." § 1367(a). Here, lCS' state law claims are legal "claims" in the sense that that term is generally used to denote a judicially cognizable cause of action, and they and the federal claims derive from a common nucleus of operative fact, see Mine Workers v. Gibbs, 383 U. S. 715, 725. Pp. 163-166.(b) lCS' argument that the District Court lacked jurisdiction because its complaints contained state law claims requiring deferential, on-therecord review of the Commission's decisions stems from the erroneous premise that those claims must be "civil actions" within the federal courts' "original jurisdiction" under § 1441(a) for removal purposes. Because this is a federal question case, the District Court's original jurisdiction derives not from lCS' state law claims, but from its federal claims, which satisfy § 1441(a)'s requirements. Having thus established federal jurisdiction, the relevant inquiry respecting the accompanying state claims is whether they fall within a district court's supplemental jurisdiction, and that inquiry turns on whether they satisfy § 1367(a)'s requirements. lCS' proposed approach would effectively read the supplemental jurisdiction statute out of the books: The whole point of supplemental jurisdiction is to allow the district courts to exercise pendent jurisdiction over claims as to which original jurisdiction is lacking. Pp. 166-168.(c) This Court also disagrees with lCS' reasoning to the extent lCS means to suggest that a claim involving deferential review of a local administrative decision can never be "so related to claims ... within ... original jurisdiction that [it] formEs] part of the same case or controversy" for purposes of supplemental jurisdiction under § 1367(a). While Congress could establish an exception to supplemental jurisdiction for such claims, the statute, as written, bears no such construction, as it confers jurisdiction without reference to the nature of review. Nor do Chicago, R. I. & P. R. Co. v. Stude, 346 U. S. 574, 581, and Horton v.158Full Text of Opinion

1970_75

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE BLACKMUN join.This case presents the narrow but important question of whether the constitutional privilege against compulsory self-incrimination is infringed by California's so-called "hit and run" statute which requires the driver of a motor vehicle involved in an accident to stop at the scene and give his name and address. Similar "hit and run" or "stop and report" statutes are in effect in all 50 States and the District of Columbia.On August 22, 1966, respondent Byers was charged in a two-count criminal complaint with two misdemeanor violations of the California Vehicle Code. Count 1 charged that, on August 20 Byers passed another vehicle without maintaining the "safe distance" required by Page 402 U. S. 426 § 21750 (Supp. 1971). The second count charged that Byers had been involved in an accident, but had failed to stop and identify himself as required by § 20002(a)(1) (Supp. 1971).This statute provides: [Footnote 1]"The driver of any vehicle involved in an accident resulting in damage to any property including vehicles shall immediately stop the vehicle at the scene of the accident and shall then and there . . . [l]ocate and notify the owner or person in charge of such property of the name and address of the driver and owner of the vehicle involved. . . ."It is stipulated that both charges arose out of the same accident.Byers demurred to Count 2 on the ground that it violated his privilege against compulsory self-incrimination. His position was ultimately sustained by the California Supreme Court. [Footnote 2] That court held that the privilege protected a driver who "reasonably believes that compliance with the statute will result in self-incrimination." 71 Page 402 U. S. 427 Cal.2d 1039, 1047, 458 P.2d 465, 471 (1969). Here, the court found that Byers' apprehensions were reasonable because compliance with § 20002(a)(1) confronted him with "substantial hazards of self-incrimination." Nevertheless the court upheld the validity of the statute by inserting a judicially created use restriction on the disclosures that it required. The court concluded, however, that it would be "unfair" to punish Byers for his failure to comply with the statute, because he could not reasonably have anticipated the judicial promulgation of the use restriction. [Footnote 3] We granted certiorari to assess the validity of the California Supreme Court's premise that, without a use restriction, § 20002(a)(1) would violate the privilege against compulsory self-incrimination. We conclude that there is no conflict between the statute and the privilege.(1)Whenever the Court is confronted with the question of a compelled disclosure that has an incriminating potential, the judicial scrutiny is invariably a close one. Tension between the State's demand for disclosures and the protection of the right against self-incrimination is likely to give rise to serious questions. Inevitably these must be resolved in terms of balancing the public need, on the one hand, and the individual claim to constitutional protections, on the other; neither interest can be treated lightly.An organized society imposes many burdens on its constituents. It commands the filing of tax returns for income; it requires producers and distributors of consumer goods to file informational reports on the manufacturing Page 402 U. S. 428 process and the content of products, on the wage, hours, and working conditions of employees. Those who borrow money on the public market or issue securities for sale to the public must file various information reports; industries must report periodically the volume and content of pollutants discharged into our waters and atmosphere. Comparable examples are legion. [Footnote 4]In each of thee situations, there is some possibility of prosecution -- often a very real one -- for criminal offenses disclosed by or deriving from the information that the law compels a person to supply. Information revealed by these report could well be "a link in the chain" of evidence leading to prosecution and conviction. But, under our holdings, the mere possibility of incrimination is insufficient to defeat the strong policies in favor of a disclosure called for by statutes like the one challenged here.United States v. Sullivan, 274 U. S. 259 (1927), shows that an application of the privilege to the California statute is not warranted. There a bootlegger was prosecuted for failure to file an income tax return. He claimed that the privilege against compulsory self-incrimination afforded him a complete defense because filing a return would have tended to incriminate him by revealing the unlawful source of his income. Speaking for the Court, Mr. Justice Holmes rejected this claim on the ground that it amounted to "an extreme if not an extravagant application of the Fifth Amendment." Id. at 274 U. S. 263-264. [Footnote 5] Page 402 U. S. 429 Sullivan's tax return, of course, increased his risk of prosecution and conviction for violation of the National Prohibition Act. But the Court had no difficulty in concluding that an extension of the privilege to cover that kind of mandatory report would have been unjustified. In order to invoke the privilege it is necessary to show that the compelled disclosures will themselves confront the claimant with "substantial hazards of self-incrimination."The components of this requirement were articulated in Albertson v. SACB, 382 U. S. 70 (1965), and later in Marchetti v. United States, 390 U. S. 39 (1968), Grosso v. United States, 390 U. S. 62 (1968), and Haynes v. United States, 390 U. S. 85 (1968). In Albertson, the Court held that an order requiring registration by individual members of a Communist organization violated the privilege. There, Sullivan was distinguished:"In Sullivan, the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners' claims are not asserted in an essentially noncriminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the . . . questions in context might involve the petitioners in the admission of a crucial element of a crime."382 U.S. at 382 U. S. 79 (emphasis added). Albertson was followed by Marchetti and Grosso, where the Court held that the privilege afforded a complete defense to prosecutions for noncompliance with federal Page 402 U. S. 430 gambling tax and registration requirements. It was also followed in Haynes where petitioner had been prosecuted for failure to register a firearm as required by federal statute. In each of these cases the Court found that compliance with the statutory disclosure requirements would confront the petitioner with "substantial hazards of self-incrimination." E.g., Marchetti v. United States, 390 U.S. at 390 U. S. 61.In all of these cases, the disclosures condemned were only those extracted from a "highly selective group inherently suspect of criminal activities" and the privilege was applied only in "an area permeated with criminal statutes" -- not in "an essentially noncriminal and regulatory area of inquiry." E.g., Albertson v. SACB, 382 U.S. at 382 U. S. 79; Marchetti v. United States, 390 U.S. at 390 U. S. 47.Although the California Vehicle Code defines some criminal offenses, the statute is essentially regulatory, not criminal. The California Supreme Court noted that § 20002(a)(1) was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities arising from automobile accidents. In Marchetti, the Court rested on the reality that almost everything connected with gambling is illegal under "comprehensive" state and federal statutory schemes. The Court noted that, in almost every conceivable situation, compliance with the statutory gambling requirements would have been incriminating. Largely because of these pervasive criminal prohibitions, gamblers were considered by the Court to be "a highly selective group inherently suspect of criminal activities."In contrast, § 20002(a)(1), like income tax laws, is directed at all persons -- here, all persons who drive automobiles in California. This group, numbering as it does in the millions, is so large as to render § 20002(a)(1) a statute "directed at the public at large." Albertson v. SACB, 382 U.S. at 382 U. S. 79, construing United States v. Sullivan, Page 402 U. S. 431 274 U. S. 259 (1927). It is difficult to consider this group as either "highly selective" or "inherently suspect of criminal activities." Driving an automobile, unlike gambling, is a lawful activity. Moreover, it is not a criminal offense under California law to be a driver "involved in an accident." An accident may be the fault of others; it may occur without any driver having been at fault. No empirical data are suggested in support of the conclusion that there is a relevant correlation between being a driver and criminal prosecution of drivers. So far as any available information instructs us, most accidents occur without creating criminal liability even if one or both of the drivers are guilty of negligence as a matter of tort law.The disclosure of inherently illegal activity is inherently risky. Our decisions in Albertson and the cases following illustrate that truism. But disclosures with respect to automobile accidents simply do not entail the kind of substantial risk of self-incrimination involved in Marchetti, Grosso, and Haynes. Furthermore, the statutory purpose is noncriminal and self-reporting is indispensable to its fulfillment.(2)Even if we were to view the statutory reporting requirement as incriminating in the traditional sense, in our view, it would be the "extravagant" extension of the privilege Justice Holmes warned against to hold that it is testimonial in the Fifth Amendment sense. Compliance with § 20002(a)(1) requires two things: first, a driver involved in an accident is required to stop at the scene; second, he is required to give his name and address. The act of stopping is no more testimonial -- indeed less so, in some respects -- than requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, or to give samples of handwriting, fingerprints, or Page 402 U. S. 432 blood. United States v. Wade, 388 U. S. 218, 388 U. S. 221-223 (1967); Schmerber v. California, 384 U. S. 757, 384 U. S. 764 and n. 8 (1966); 8 J. Wigmore, Evidence § 2265, pp. 386-400 (McNaughton rev.1961). Disclosure of name and address is an essentially neutral act. Whatever the collateral consequences of disclosing name and address, the statutory purpose is to implement the state police power to regulate use of motor vehicles.Section 20002(a)(1) first requires that a driver involved in an accident "shall immediately stop the vehicle at the scene of the accident. . . ." It is, of course, possible that compliance with this requirement might ultimately lead to prosecution for some contemporaneous criminal violation of the motor vehicle code if one occurred, or an unrelated offense, always provided such offense could be established by independent evidence. In that sense, it might furnish the authorities with what might be called "a link in the chain of evidence needed to prosecute. . . ." Hoffman v. United States, 341 U. S. 479, 341 U. S. 486 (1951). In Schmerber v. California, supra, at 384 U. S. 764, the Court held that"the privilege is a bar against compelling 'communications' or 'testimony,' but . . . compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it."There, the petitioner had been compelled to undergo the forcible withdrawal of blood samples for alcohol content analysis, and the Court sustained this procedure over petitioner's claim that he had been compelled to furnish evidence against himself. See also Holt v. United States, 218 U. S. 245, 218 U. S. 252 (1910) (Holmes, J.) (requiring defendant to model a blouse would be barred only by "an extravagant extension of the Fifth Amendment").Stopping in compliance with § 20002(a)(1) therefore does not provide the State with "evidence of a testimonial or communicative nature" within the meaning of the Constitution. Schmerber v. California, supra, at 384 U. S. 761. Page 402 U. S. 433 It merely provides the State and private parties with the driver's identity for, among other valid state needs, the study of causes of vehicle accidents and related purposes, always subject to the driver's right to assert a Fifth Amendment privilege concerning specific inquiries.Respondent argues that, since the statutory duty to stop is imposed only on the "driver of any vehicle involved in an accident," a driver's compliance is testimonial because his action gives rise to an inference that he believes that he was the "driver of [a] vehicle involved in an accident." From this, the respondent tells us, it can be further inferred that he was indeed the operator of an "accident involved" vehicle. In Wade, however, the Court rejected the notion that such inferences are communicative or testimonial. There, the respondent was placed in a lineup to be viewed by persons who had witnessed a bank robbery. At one point, he was compelled to speak the words alleged to have been used by the perpetrator. Despite the inference that the respondent uttered the words in his normal undisguised voice, the Court held that the utterances were not of a "testimonial" nature in the sense of the Fifth Amendment privilege even though the speaking might well have led to identifying him as the bank robber. United States v. Wade, supra, at 388 U. S. 222-223. Furthermore, the Court noted in Wade that no question was presented as to the admissibility in evidence at trial of anything said or done at the lineup. Id. at 388 U. S. 223. Similarly no such problem is presented here. Of course, a suspect's normal voice characteristics, like his handwriting, blood, fingerprints, or body may prove to be the crucial link in a chain of evidentiary factors resulting in prosecution and conviction. Yet such evidence may be used against a defendant.After having stopped, a driver involved in an accident is required by § 20002(a)(1) to notify the driver of the other vehicle of his name and address. A name, linked Page 402 U. S. 434 with a motor vehicle, is no more incriminating than the tax return, linked with the disclosure of income, in United States v. Sullivan, supra. It identifies, but does not by itself, implicate anyone in criminal conduct. [Footnote 6]Although identity, when made known, may lead to inquiry that, in turn, leads to arrest and charge, those developments depend on different factors and independent evidence. Here, the compelled disclosure of identity could have led to a charge that might not have been made had the driver fled the scene; but this is true only in the same sense that a taxpayer can be charged on the basis of the contents of a tax return or failure to file an income tax form. There is no constitutional right to refuse to file an income tax return, or to flee the scene of an accident in order to avoid the possibility of legal involvement.The judgment of the California Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.Vacated and remanded

U.S. Supreme CourtCalifornia v. Byers, 402 U.S. 424 (1971)California v. ByersNo. 75Argued December 8, 1970Decided May 17, 1971402 U.S. 424SyllabusRespondent demurred to a count of an indictment charging him with violating Cal.Vehicle Code § 20002(a)(1) (Supp. 1971) by failing to stop and furnish his name and address after involvement in an automobile accident, resulting in damage to property, on the ground that compliance would have violated his privilege against self-incrimination. His demurrer was sustained by the California Supreme Court, which held that compliance confronted respondent with "substantial hazards of self-incrimination," but upheld the statute by inserting a use restriction on the information disclosed. That court concluded that it would be unfair to punish respondent, since he could not reasonably have anticipated the use restriction.Held: The judgment is vacated, and the case is remanded. Pp. 402 U. S. 427-458.71 Cal. 2d 1039, 458 P.2d 465, vacated and remanded.THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE BLACKMUN, concluded that:1. Compliance with this essentially regulatory and noncriminal statute, where self-reporting is indispensable to its fulfillment, where the burden is on "the public at large," as distinguished from a "highly selective group inherently suspect of criminal activities," and where the possibility of incrimination is not substantial, does not infringe the privilege against self-incrimination. Pp. 402 U. S. 427-431.2. Even assuming that the statutory requirement of the essentially neutral act of disclosing name and address is incriminating in the traditional sense, it would be an extravagant extension of the privilege to hold that it is testimonial in the Fifth Amendment sense. Just as there is no constitutional right to refuse to file an income tax return, there is no constitutional right to flee the scene of an accident to avoid any possible legal involvement. Pp. 402 U. S. 431-434.MR. JUSTICE HARLAN concluded that the presence, from the individual's point of view, of a "real," and not "imaginary," risk of self-incrimination is not a sufficient predicate for extension of the privilege against self-incrimination to regulatory schemes of the character involved in this case. Considering the noncriminal governmental purpose of securing the information (to ensure Page 402 U. S. 425 financial responsibility for accident), the necessity for self-reporting as a means of securing the information, and the limited nature of the required disclosures which leaves the "accusatorial" burden upon the State, the purposes of the Fifth Amendment do not warrant a use restriction as a condition of enforcement of the statute. Pp. 402 U. S. 434-458.BURGER, C.J., announced the Court's judgment and delivered an opinion, in which STEWART, WHITE, and BLACKMUN, JJ., joined. HARLAN, J., filed an opinion concurring in the judgment, post, p. 402 U. S. 434. BLACK, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 402 U. S. 459. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 402 U. S. 464.

1988_87-329

JUSTICE MARSHALL delivered the opinion of the Court.Florida Stat. § 794.03 (1987) makes it unlawful to "print, publish, or broadcast . . . in any instrument of mass communication" the name of the victim of a sexual offense. [Footnote 1] Pursuant to this statute, appellant The Florida Star was found civilly liable for publishing the name of a rape victim which it had obtained from a publicly released police report. The issue presented here is whether this result comports with the First Amendment. We hold that it does not.IThe Florida Star is a weekly newspaper which serves the community of Jacksonville, Florida, and which has an average circulation of approximately 18,000 copies. A regular feature of the newspaper is its "Police Reports" section. Page 491 U. S. 527 That section, typically two to three pages in length, contains brief articles describing local criminal incidents under police investigation.On October 20, 1983, appellee B.J.F. [Footnote 2] reported to the Duval County, Florida, Sheriff's Department (the Department) that she had been robbed and sexually assaulted by an unknown assailant. The Department prepared a report on the incident which identified B.J.F. by her full name. The Department then placed the report in its pressroom. The Department does not restrict access either to the pressroom or to the reports made available therein.A Florida Star reporter-trainee sent to the pressroom copied the police report verbatim, including B.J.F.'s full name, on a blank duplicate of the Department's forms. A Florida Star reporter then prepared a one-paragraph article about the crime, derived entirely from the trainee's copy of the police report. The article included B.J.F.'s full name. It appeared in the "Robberies" subsection of the "Police Reports" section on October 29, 1983, one of fifty-four police blotter stories in that day's edition. The article read:"[B.J.F.] reported on Thursday, October 20, she was crossing Brentwood Park, which is in the 500 block of Golfair Boulevard, enroute to her bus stop, when an unknown black man ran up behind the lady and placed a knife to her neck and told her not to yell. The suspect then undressed the lady and had sexual intercourse with her before fleeing the scene with her 60 cents, Timex watch and gold necklace. Patrol efforts have been suspended concerning this incident because of a lack of evidence. Page 491 U. S. 528 In printing B.J.F.'s full name, The Florida Star violated its internal policy of not publishing the names of sexual offense victims."On September 26, 1984, B.J.F. filed suit in the Circuit Court of Duval County against the Department and The Florida Star, alleging that these parties negligently violated § 794.03. See n 1, supra. Before trial, the Department settled with B.J.F. for $2,500. The Florida Star moved to dismiss, claiming, inter alia, that imposing civil sanctions on the newspaper pursuant to § 794.03 violated the First Amendment. The trial judge rejected the motion. App. 4.At the ensuing day-long trial, B.J.F. testified that she had suffered emotional distress from the publication of her name. She stated that she had heard about the article from fellow workers and acquaintances; that her mother had received several threatening phone calls from a man who stated that he would rape B.J.F. again; and that these events had forced B.J.F. to change her phone number and residence, to seek police protection, and to obtain mental health counseling. In defense, The Florida Star put forth evidence indicating that the newspaper had learned B.J.F.'s name from the incident report released by the Department, and that the newspaper's violation of its internal rule against publishing the names of sexual offense victims was inadvertent.At the close of B.J.F.'s case, and again at the close of its defense, The Florida Star moved for a directed verdict. On both occasions, the trial judge denied these motions. He ruled from the bench that § 794.03 was constitutional because it reflected a proper balance between the First Amendment and privacy rights, as it applied only to a narrow set of "rather sensitive . . . criminal offenses." App. 18-19 (rejecting first motion); see id. at 32-33 (rejecting second motion). At the close of the newspaper's defense, the judge granted B.J.F.'s motion for a directed verdict on the issue of negligence, finding the newspaper per se negligent based upon its Page 491 U. S. 529 violation of § 794.03. Id. at 33. This ruling left the jury to consider only the questions of causation and damages. The judge instructed the jury that it could award B.J.F. punitive damages if it found that the newspaper had "acted with reckless indifference to the rights of others." Id. at 35. The jury awarded B.J.F. $75,000 in compensatory damages and $25,000 in punitive damages. Against the actual damages award, the judge set off B.J.F.'s settlement with the Department.The First District Court of Appeal affirmed in a three-paragraph per curiam opinion. 499 So. 2d 883 (1986). In the paragraph devoted to The Florida Star's First Amendment claim, the court stated that the directed verdict for B.J.F. had been properly entered because, under § 794.03, a rape victim's name is "of a private nature and not to be published as a matter of law." Id. at 884, citing Doe v. Sarasota-Bradenton Florida Television Co., 436 So. 2d 328, 330 (Fla.App.1983) (footnote omitted). [Footnote 3] The Supreme Court of Florida denied discretionary review.The Florida Star appealed to this Court. [Footnote 4] We noted probable jurisdiction, 488 U.S. 887 (1988), and now reverse. Page 491 U. S. 530IIThe tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common law doctrines accord to personal privacy against the publication of truthful information, on the other, is a subject we have addressed several times in recent years. Our decisions in cases involving government attempts to sanction the accurate dissemination of information as invasive of privacy have not, however, exhaustively considered this conflict. On the contrary, although our decisions have without exception upheld the press' right to publish, we have emphasized each time that we were resolving this conflict only as it arose in a discrete factual context. [Footnote 5]The parties to this case frame their contentions in light of a trilogy of cases which have presented, in different contexts, the conflict between truthful reporting and state-protected privacy interests. In Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), we found unconstitutional a civil damages award entered against a television station for broadcasting the name of a rape-murder victim which the station had obtained from courthouse records. In Oklahoma Publishing Page 491 U. S. 531 Co. v. Oklahoma County District Court, 430 U. S. 308 (1977), we found unconstitutional a state court's pretrial order enjoining the media from publishing the name or photograph of an 11-year-old boy in connection with a juvenile proceeding involving that child which reporters had attended. Finally, in Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), we found unconstitutional the indictment of two newspapers for violating a state statute forbidding newspapers to publish, without written approval of the juvenile court, the name of any youth charged as a juvenile offender. The papers had learned about a shooting by monitoring a police band radio frequency, and had obtained the name of the alleged juvenile assailant from witnesses, the police, and a local prosecutor.Appellant takes the position that this case is indistinguishable from Cox Broadcasting. Brief for Appellant 8. Alternatively, it urges that our decisions in the above trilogy, and in other cases in which we have held that the right of the press to publish truth overcame asserted interests other than personal privacy, [Footnote 6] can be distilled to yield a broader First Amendment principle that the press may never be punished, civilly or criminally, for publishing the truth. Id. at 19. Appellee counters that the privacy trilogy is inapposite, because in each case the private information already appeared on a "public record," Brief for Appellee 12, 24, 25, and because the privacy interests at stake were far less profound than in the present case. See, e.g., id. at 34. In the alternative, appellee urges that Cox Broadcasting be overruled and replaced with a categorical rule that publication of the Page 491 U. S. 532 name of a rape victim never enjoys constitutional protection. Tr. of Oral Arg. 44.We conclude that imposing damages on appellant for publishing B.J.F.'s name violates the First Amendment, although not for either of the reasons appellant urges. Despite the strong resemblance this case bears to Cox Broadcasting, that case cannot fairly be read as controlling here. The name of the rape victim in that case was obtained from courthouse records that were open to public inspection, a fact which JUSTICE WHITE'S opinion for the Court repeatedly noted. 420 U.S. at 420 U. S. 492 (noting "special protected nature of accurate reports of judicial proceedings") (emphasis added); see also id. at 420 U. S. 493, 420 U. S. 496. Significantly, one of the reasons we gave in Cox Broadcasting for invalidating the challenged damages award was the important role the press plays in subjecting trials to public scrutiny and thereby helping guarantee their fairness. Id. at 420 U. S. 492-493. [Footnote 7] That role is not directly compromised where, as here, the information in question comes from a police report prepared and disseminated at a time at which not only had no adversarial criminal proceedings begun, but no suspect had been identified.Nor need we accept appellant's invitation to hold broadly that truthful publication may never be punished consistent with the First Amendment. Our cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily. See, e.g., Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 716 (1931) (hypothesizing "publication of the sailing dates of transports or the number and location of troops"); see also Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 72, Page 491 U. S. 533 n. 8, 379 U. S. 74 (1964) (endorsing absolute defense of truth "where discussion of public affairs is concerned," but leaving unsettled the constitutional implications of truthfulness "in the discrete area of purely private libels"); Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 435 U. S. 838 (1978); Time, Inc. v. Hill, 385 U. S. 374, 385 U. S. 383, n. 7 (1967). Indeed, in Cox Broadcasting, Page 491 U. S. 534 we pointedly refused to answer even the less sweeping question "whether truthful publications may ever be subjected to civil or criminal liability" for invading "an area of privacy" defined by the State. 420 U.S. at 420 U. S. 491. Respecting the fact that press freedom and privacy rights are both "plainly rooted in the traditions and significant concerns of our society," we instead focused on the less sweeping issue"whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records -- more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection."Ibid. We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.In our view, this case is appropriately analyzed with reference to such a limited First Amendment principle. It is the one, in fact, which we articulated in Daily Mail in our synthesis of prior cases involving attempts to punish truthful publication:"[I]f a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."443 U.S. at 443 U. S. 103. According the press the ample protection provided by that principle is supported by at least three separate considerations, in addition to, of course, the overarching "public interest, secured by the Constitution, in the dissemination of truth.'" Cox Broadcasting, supra, at 420 U. S. 491, quoting Garrison, supra, at 379 U. S. 73 (footnote omitted). The cases on which the Daily Mail synthesis relied demonstrate these considerations.First, because the Daily Mail formulation only protects the publication of information which a newspaper has "lawfully obtain[ed]," 443 U.S. at 443 U. S. 103, the government retains ample means of safeguarding significant interests upon which publication may impinge, including protecting a rape victim's anonymity. To the extent sensitive information rests in private hands, the government may under some circumstances forbid its nonconsensual acquisition, thereby bringing outside of the Daily Mail principle the publication of any information so acquired. To the extent sensitive information is in the government's custody, it has even greater power to forestall or mitigate the injury caused by its release. The government may classify certain information, establish and enforce procedures ensuring its redacted release, and extend a damages remedy against the government or its officials where the government's mishandling of sensitive information leads to its dissemination. Where information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts. See, e.g., Landmark Communications, supra, at 435 U. S. 845 ("[M]uch of the risk [from disclosure of sensitive information regarding judicial disciplinary proceedings] can be eliminated through careful internal procedures to protect the confidentiality of Commission proceedings"); Oklahoma Publishing, 430 U.S. at 430 U. S. 311 (noting trial judge's failure to avail himself of the opportunity, provided by a state statute, to close juvenile hearing to the public, including members of the press, who later broadcast juvenile defendant's name); Cox Broadcasting, supra, at 420 U. S. 496 ("If there are privacy interests to be protected in judicial proceedings, the States must respond by means which Page 491 U. S. 535 avoid public documentation or other exposure of private information"). [Footnote 8]A second consideration undergirding the Daily Mail principle is the fact that punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act. It is not, of course, always the case that information lawfully acquired by the press is known, or accessible, to others. But where the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release. We noted this anomaly in Cox Broadcasting:"By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served."420 U.S. at 420 U. S. 495. The Daily Mail formulation reflects the fact that it is a limited set of cases indeed where, despite the accessibility of the public to certain information, a meaningful public interest is served by restricting its further release by other entities, like the press. As Daily Mail observed in its summary of Oklahoma Publishing,"once the truthful information was 'publicly revealed' or 'in the public domain,' the court could not constitutionally restrain its dissemination."443 U.S. at 443 U. S. 103.A third and final consideration is the "timidity and self-censorship" which may result from allowing the media to be punished for publishing certain truthful information. Cox Broadcasting, supra, at 420 U. S. 496. Cox Broadcasting noted this concern with overdeterrence in the context of information made public through official court records, but the fear of excessive Page 491 U. S. 536 media self-suppression is applicable as well to other information released, without qualification, by the government. A contrary rule, depriving protection to those who rely on the government's implied representations of the lawfulness of dissemination, would force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication. This situation could inhere even where the newspaper's sole object was to reproduce, with no substantial change, the government's rendition of the event in question.Applied to the instant case, the Daily Mail principle clearly commands reversal. The first inquiry is whether the newspaper "lawfully obtain[ed] truthful information about a matter of public significance." 443 U.S. at 443 U. S. 103. It is undisputed that the news article describing the assault on B.J.F. was accurate. In addition, appellant lawfully obtained B.J.F.'s name. Appellee's argument to the contrary is based on the fact that under Florida law, police reports which reveal the identity of the victim of a sexual offense are not among the matters of "public record" which the public, by law, is entitled to inspect. Brief for Appellee 17-18, citing Fla.Stat. § 119.07(3)(h) (1983). But the fact that state officials are not required to disclose such reports does not make it unlawful for a newspaper to receive them when furnished by the government. Nor does the fact that the Department apparently failed to fulfill its obligation under § 794.03 not to "cause or allow to be . . . published" the name of a sexual offense victim make the newspaper's ensuing receipt of this information unlawful. Even assuming the Constitution permitted a State to proscribe receipt of information, Florida has not taken this step. It is, clear, furthermore, that the news article concerned "a matter of public significance," 443 U.S. at 443 U. S. 103, in the sense in which the Daily Mail synthesis of prior cases used that term. That is, the article generally, as opposed to the specific identity contained within it, involved a Page 491 U. S. 537 matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities. See Cox Broadcasting, supra, (article identifying victim of rape-murder); Oklahoma Publishing Co. v. Oklahoma County District Court, 430 U. S. 308 (1977) (article identifying juvenile alleged to have committed murder); Daily Mail, supra, (same); cf. Landmark Communications, Inc. v. Virginia, 435 U.S. 435 U. S. 829 (1978) (article identifying judges whose conduct was being investigated).The second inquiry is whether imposing liability on appellant pursuant to § 794.03 serves "a need to further a state interest of the highest order." Daily Mail, 443 U.S. at 443 U. S. 103. Appellee argues that a rule punishing publication furthers three closely related interests: the privacy of victims of sexual offenses; the physical safety of such victims, who may be targeted for retaliation if their names become known to their assailants; and the goal of encouraging victims of such crimes to report these offenses without fear of exposure. Brief for Appellee 29-30.At a time in which we are daily reminded of the tragic reality of rape, it is undeniable that these are highly significant interests, a fact underscored by the Florida Legislature's explicit attempt to protect these interests by enacting a criminal statute prohibiting much dissemination of victim identities. We accordingly do not rule out the possibility that, in a proper case, imposing civil sanctions for publication of the name of a rape victim might be so overwhelmingly necessary to advance these interests as to satisfy the Daily Mail standard. For three independent reasons, however, imposing liability for publication under the circumstances of this case is too precipitous a means of advancing these interests to convince us that there is a "need" within the meaning of the Daily Mail formulation for Florida to take this extreme step. Cf. Landmark Communications, supra, (invalidating penalty on publication despite State's expressed interest in nondissemination, Page 491 U. S. 538 reflected in statute prohibiting unauthorized divulging of names of judges under investigation).First is the manner in which appellant obtained the identifying information in question. As we have noted, where the government itself provides information to the media, it is most appropriate to assume that the government had, but failed to utilize, far more limited means of guarding against dissemination than the extreme step of punishing truthful speech. That assumption is richly borne out in this case. B.J.F.'s identity would never have come to light were it not for the erroneous, if inadvertent, inclusion by the Department of her full name in an incident report made available in a pressroom open to the public. Florida's policy against disclosure of rape victims' identities, reflected in § 794.03, was undercut by the Department's failure to abide by this policy. Where, as here, the government has failed to police itself in disseminating information, it is clear under Cox Broadcasting, Oklahoma Publishing, and Landmark Communications that the imposition of damages against the press for its subsequent publication can hardly be said to be a narrowly tailored means of safeguarding anonymity. See supra at 491 U. S. 534-535. Once the government has placed such information in the public domain, "reliance must rest upon the judgment of those who decide what to publish or broadcast," Cox Broadcasting, 420 U.S. at 420 U. S. 496, and hopes for restitution must rest upon the willingness of the government to compensate victims for their loss of privacy and to protect them from the other consequences of its mishandling of the information which these victims provided in confidence.That appellant gained access to the information in question through a government news release makes it especially likely that, if liability were to be imposed, self-censorship would result. Reliance on a news release "is a paradigmatically routine newspaper reporting techniqu[e]." Daily Mail, 443 U.S. at 443 U. S. 103. The government's issuance of such a release, without qualification, can only convey to recipients that the Page 491 U. S. 539 government considered dissemination lawful, and indeed expected the recipients to disseminate the information further. Had appellant merely reproduced the news release prepared and released by the Department, imposing civil damages would surely violate the First Amendment. The fact that appellant converted the police report into a news story by adding the linguistic connecting tissue necessary to transform the report's facts into full sentences cannot change this result.A second problem with Florida's imposition of liability for publication is the broad sweep of the negligence per se standard applied under the civil cause of action implied from § 794.03. Unlike claims based on the common law tort of invasion of privacy, see Restatement (Second) of Torts § 652D (1977), civil actions based on § 794.03 require no case-by-case findings that the disclosure of a fact about a person's private life was one that a reasonable person would find highly offensive. On the contrary, under the per se theory of negligence adopted by the courts below, liability follows automatically from publication. This is so regardless of whether the identity of the victim is already known throughout the community; whether the victim has voluntarily called public attention to the offense; or whether the identity of the victim has otherwise become a reasonable subject of public concern -- because, perhaps, questions have arisen whether the victim fabricated an assault by a particular person. Nor is there a scienter requirement of any kind under § 794.03, engendering the perverse result that truthful publications challenged pursuant to this cause of action are less protected by the First Amendment than even the least protected defamatory falsehoods: those involving purely private figures, where liability is evaluated under a standard, usually applied by a jury, of ordinary negligence. See Gertz v Robert Welch, Inc., 418 U. S. 323 (1974). We have previously noted the impermissibility of categorical prohibitions upon media access where important First Amendment interests are at stake. See Globe Page 491 U. S. 540 Newspaper Co. v. Superior Court of Norfolk County, 457 U. S. 596, 457 U. S. 608 (1982) (invalidating state statute providing for the categorical exclusion of the public from trials of sexual offenses involving juvenile victims). More individualized adjudication is no less indispensable where the State, seeking to safeguard the anonymity of crime victims, sets its face against publication of their names.Third, and finally, the facial underinclusiveness of § 794.03 raises serious doubts about whether Florida is, in fact, serving, with this statute, the significant interests which appellee invokes in support of affirmance. Section 794.03 prohibits the publication of identifying information only if this information appears in an "instrument of mass communication," a term the statute does not define. Section 794.03 does not prohibit the spread by other means of the identities of victims of sexual offenses. An individual who maliciously spreads word of the identity of a rape victim is thus not covered, despite the fact that the communication of such information to persons who live near, or work with, the victim may have consequences as devastating as the exposure of her name to large numbers of strangers. See Tr. of Oral Arg. 49-50 (appellee acknowledges that § 794.03 would not apply to "the backyard gossip who tells 50 people that don't have to know").When a State attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the small-time disseminator as well as the media giant. Where important First Amendment interests are at stake, the mass scope of disclosure is not an acceptable surrogate for injury. A ban on disclosures effected by "instrument[s] of mass communication" simply cannot be defended on the ground that partial prohibitions may effect partial relief. See Daily Mail, 443 U.S. at 443 U. S. 104-105 (statute is insufficiently tailored to interest in protecting anonymity where it restricted only newspapers, not Page 491 U. S. 541 the electronic media or other forms of publication, from identifying juvenile defendants); id. at 443 U. S. 110 (REHNQUIST, J., concurring in judgment) (same); cf. Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 481 U. S. 229 (1987); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575, 460 U. S. 585 (1983). Without more careful and inclusive precautions against alternative forms of dissemination, we cannot conclude that Florida's selective ban on publication by the mass media satisfactorily accomplishes its stated purpose. [Footnote 9]IIIOur holding today is limited. We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense. We hold only that, where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order, and that no such interest is satisfactorily served by imposing liability under § 794.03 to appellant under the facts of this case. The decision below is thereforeReversed

U.S. Supreme CourtFlorida Star v. B.J.F., 491 U.S. 524 (1989)Florida Star v. B.J.F.No. 87-329Argued March 21, 1989Decided June 21, 1989491 U.S. 524SyllabusAppellant, The Florida Star, is a newspaper which publishes a "Police Reports" section containing brief articles describing local criminal incidents under police investigation. After appellee B.J.F. reported to the Sheriff's Department (Department) that she had been robbed and sexually assaulted, the Department prepared a report, which identified B.J.F. by her full name, and placed it in the Department's pressroom. The Department does not restrict access to the room or to the reports available there. A Star reporter-trainee sent to the pressroom copied the police report verbatim, including B.J.F.'s full name. Consequently, her name was included in a "Police Reports" story in the paper, in violation of the Star's internal policy. Florida Stat. § 794.03 makes it unlawful to "print, publish, or broadcast . . . in any instrument of mass communication" the name of the victim of a sexual offense. B.J.F. filed suit in a Florida court alleging, inter alia, that the Star had negligently violated § 794.03. The trial court denied the Star's motion to dismiss, which claimed, among other things, that imposing civil sanctions on the newspaper pursuant to § 794.03 violated the First Amendment. However, it granted B.J.F.'s motion for a directed verdict on the issue of negligence, finding the Star per se negligent based on its violation of § 794.03. The jury then awarded B.J.F. both compensatory and punitive damages. The verdict was upheld on appeal.Held: Imposing damages on the Star for publishing B.J.F.'s name violates the First Amendment. Pp. 491 U. S. 530-541.(a) The sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsels the Court to rely on limited principles that sweep no more broadly than the appropriate context of the instant case, rather than to accept invitations to hold broadly that truthful publication may never be punished consistent with the First Amendment or that publication of a rape victim's name never enjoys constitutional protection. One such principle is that,"if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."Smith v. Daily Mail Publishing Co., 443 U. S. 97, 443 U. S. 103. Page 491 U. S. 525 Applied to the instant case, the Daily Mail principle commands reversal. Pp. 491 U. S. 530-536.(b) The Star "lawfully obtain[ed] truthful information." The actual news article was accurate, and the Star lawfully obtained B.J.F.'s name from the government. The fact that state officials are not required to disclose such reports or that the Sheriff's Department apparently failed to fulfill its § 794.03 obligation not to cause or allow B.J.F.'s name to be published does not make it unlawful for the Star to have received the information, and Florida has taken no steps to proscribe such receipt. The government has ample means to safeguard the information that are less drastic than punishing truthful publication. Furthermore, it is clear that the news article generally, as opposed to the specific identity contained in it, involved "a matter of public significance": the commission, and investigation, of a violent crime that had been reported to authorities. Pp. 491 U. S. 536-537.(c) Imposing liability on the Star does not serve "a need to further a state interest of the highest order." Although the interests in protecting the privacy and safety of sexual assault victims and in encouraging them to report offenses without fear of exposure are highly significant, imposing liability on the Star in this case is too precipitous a means of advancing those interests. Since the Star obtained the information because the Sheriff's Department failed to abide by § 794.03's policy, the imposition of damages can hardly be said to be a narrowly tailored means of safeguarding anonymity. Self-censorship is especially likely to result from imposition of liability when a newspaper gains access to the information from a government news release. Moreover, the negligence per se standard adopted by the courts below does not permit case-by-case findings that the disclosure was one a reasonable person would find offensive, and does not have a scienter requirement of any kind. In addition, § 794.03's facial underinclusiveness -- which prohibits publication only by an "instrument of mass communication" and does not prohibit the spread of victims' names by other means -- raises serious doubts about whether Florida is serving the interests specified by B.J.F. A State must demonstrate its commitment to the extraordinary measure of punishing truthful publication in the name of privacy by applying its prohibition evenhandedly to both the small-time disseminator and the media giant. Pp. 491 U. S. 537-541.499 So. 2d 883, reversed.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, BLACKMUN, STEVENS, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 491 U. S. 541. Page 491 U. S. 526 WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR, J., joined.

1997_97-5310

of the transaction. We answer no and hold that § 1635(f) completely extinguishes the right of rescission at the end of the 3-year period.IThe declared purpose of the Act is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U. S. C. § 1601(a); see Mourning v. Family Publications Service, Inc., 411 U. S. 356, 363-368 (1973). Accordingly, the Act requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights. See §§ 1631, 1632, 1635, 1638. Failure to satisfy the Act subjects a lender to criminal penalties for noncompliance, see § 1611, as well as to statutory and actual damages traceable to a lender's failure to make the requisite disclosures, see § 1640. Section 1640(e) provides that an action for such damages "may be brought" within one year after a violation of the Act, but that a borrower may assert the right to damages "as a matter of defense by recoupment or set-off" in a collection action brought by the lender even after the one year is up.Going beyond these rights to damages, the Act also authorizes a borrower whose loan is secured with his "principal dwelling," and who has been denied the requisite disclosures, to rescind the loan transaction entirely "until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later." § 1635(a). A borrower who exercises this right to rescind "is not liable for any finance or other charge, and any security interest given by [him], including any such interest arising by operation of law, becomes void" upon rescission. § 1635(b). Within 20 days413after receiving notice of rescission, the lender must "return to the [borrower] any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction." Ibid. The Act provides, however, that the borrower's right of rescission "shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first," even if the required disclosures have never been made. § 1635(f).1 The Act gives a borrower no express permission to assert the right of rescission as an affirmative defense after the expiration of the 3-year period.The borrowers in this case, petitioners David and Linda Beach, built a house in Jupiter, Florida, in 1986 with a secured $85,000 construction loan from Fidelity Federal Savings Bank of Florida. In the same year, the Beaches refinanced the house with a loan from Great Western Bank.2 In 1991, the Beaches stopped making mortgage payments, and in 1992 the bank began this foreclosure proceeding. The Beaches acknowledged their default but raised affirmative defenses, alleging that the bank's failure to make disclosures required by the Act3 gave them rights under §§ 1635 and1 The Act provides a limited extension of this 3-year time period when "(1) any agency empowered to enforce the provisions of this subchapter institutes a proceeding to enforce the provisions of this section within three years after the date of consummation of the transaction, (2) such agency finds a violation of this section, and (3) the obligor's right to rescind is based in whole or in part on any matter involved in such proceeding." 15 U. S. C. § 1635(f). Under such circumstances, "the obligor's right of rescission shall expire three years after the date of consummation of the transaction or upon the earlier sale of the property, or upon the expiration of one year following the conclusion of the proceeding, or any judicial review or period for judicial review thereof, whichever is later." Ibid.20cwen Federal Bank was substituted as the plaintiff while this case was pending in the trial court.3 Specifically, the Beaches claimed that the bank had failed to disclose properly and accurately (1) the amount financed, in violation of § 1638(a)(3); (2) the finance charge, in violation of § 1638(a)(3); (3) the annual percentage rate, in violation of § 1638(a)(4); (4) the number, amounts, and timing of4141640 to rescind the mortgage agreement and to reduce the bank's claim by the amount of their actual and statutory damages.The Circuit Court of the 15th Judicial Circuit of Florida agreed that under § 1640 the Beaches were entitled to "offset the amount owed to Great Western" by $396 in actual damages and $1,000 in statutory damages because the bank had overstated the monthly mortgage payment by $0.58 and the finance charge by $201.84. But the court rejected the Beaches' effort to rescind the mortgage under § 1635, holding that the loan at issue was immune to rescission as part of a "residential mortgage transaction" (defined in § 1602(w)) and, in the alternative, that any right to rescind had expired after three years, in 1989. The court found it telling that Congress had included no saving clause to revive an expired right of rescission as a defense in the nature of recoupment or setoff.The State's intermediate appellate court affirmed, Beach v. Great Western Bank, 670 So. 2d 986 (Fla. 4th Dist. Ct. App. 1996), and so did the Supreme Court of Florida, which addressed only the issue of rescission as a defense, Beach v. Great Western Bank, 692 So. 2d 146 (1997).4 That court remarked on the plain language of § 1635(f) as evidence of unconditional congressional intent to limit the right of rescission to three years and explained that its prior cases permitting a defense of recoupment by an ostensibly barred claim were distinguishable because, among other things, they involved statutes of limitation, not statutes extinguishing rights defensively asserted.Because the reading of § 1635(f) given by the Supreme Court of Florida conflicts with the decisions of several otherpayments scheduled to repay the obligation, in violation of § 1638(a)(6); and (5) the total of payments, in violation of § 1638(a)(5).4 Although the per curiam opinion posed the question as one "[u]nder Florida law," 692 So. 2d, at 147, it distinguished cases based on state law as inapposite and held that a defense of rescission was unavailable under the Act after three years.415courts,5 we granted certiorari, 522 U. S. 912 (1997), to determine whether under federal law the statutory right of rescission provided by § 1635 may be revived as an affirmative defense after its expiration under § 1635(f). We affirm.IIThe Beaches concede that any right they may have had to institute an independent proceeding for rescission under § 1635 lapsed in 1989, three years after they closed the loan with the bank, but they argue that the restriction to three years in § 1635(f) is a statute of limitation governing only the institution of suit and accordingly has no effect when a borrower claims a § 1635 right of rescission as a "defense in recoupment" to a collection action. They are, of course, correct that as a general matter a defendant's right to plead "recoupment," a "'defense arising out of some feature of the transaction upon which the plaintiff's action is grounded,'" Rothensies v. Electric Storage Battery Co., 329 U. S. 296, 299 (1946) (quoting Bull v. United States, 295 U. S. 247, 262 (1935)), survives the expiration of the period provided by a statute of limitation that would otherwise bar the recoupment claim as an independent cause of action. So long as the plaintiff's action is timely, see ibid., a defendant may raise a claim in recoupment even if he could no longer bring it independently, absent "'the clearest congressional language'" to the contrary. Reiter v. Cooper, 507 U. S. 258, 264 (1993) (quoting United States v. Western Pacific R. Co., 352 U. S. 59, 71 (1956)). As we have said before, the object of a statute of limitation in keeping "stale litigation out of the courts," id., at 72, would be distorted if the statute were5 See, e. g., In re Barsky, 210 B. R. 683 (Bkrtey. Ct. ED Pa. 1997); In re Botelho, 195 B. R. 558 (Bkrtey. Ct. Mass. 1996); In re Shaw, 178 B. R. 380 (Bkrtey. Ct. NJ 1994); Federal Deposit Ins. Corp. v. Ablin, 177 Ill. App. 3d 390, 532 N. E. 2d 379 (1988); Community Nat. Bank & Trust Co. of N. Y. v. McClammy, 525 N. Y. S. 2d 629, 138 App. Div. 2d 339 (1988); Dawe v. Merchants Mortgage and Trust Corp., 683 P. 2d 796 (Colo. 1984) (en bane).416applied to bar an otherwise legitimate defense to a timely lawsuit, for limitation statutes "are aimed at lawsuits, not at the consideration of particular issues in lawsuits," ibid.The Beaches come up short, however, on the question whether this is a case for the general rule at all. The issue here is not whether limitation statutes affect recoupment rights, but whether § 1635(f) is a statute of limitation, that is, "whether [it] operates, with the lapse of time, to extinguish the right which is the foundation for the claim" or "merely to bar the remedy for its enforcement." Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U. S. 356, 358359, and n. 4 (1943). The "ultimate question" is whether Congress intended that "the right shall be enforceable in any event after the prescribed time," id., at 360; accord, Burnett v. New York Central R. Co., 380 U. S. 424 (1965), and in this instance, the answer is apparent from the plain language of § 1635(f). See Good Samaritan Hospital v. Shalala, 508 U. S. 402, 409 (1993).The terms of a typical statute of limitation provide that a cause of action mayor must be brought within a certain period of time. So, in Reiter v. Cooper, supra, at 263-264, we concluded that 49 U. S. C. § 11706(c)(2), providing that a shipper "'must begin a civil action to recover damages under [§ 11705(b)(3)] within two years after the claim accrues,'" was a statute of limitation raising no bar to a claim made in recoupment. See Note, Developments in the Law: Statutes of Limitations, 63 Harv. L. Rev. 1177, 1179 (1950) (most statutes of limitation provide either that "all actions ... shall be brought within" or "no action ... shall be brought more than" so many years after "the cause thereof accrued" (internal quotation marks omitted)); H. Wood, 1 Limitation of Actions § 1, pp. 2-3 (4th ed. 1916) ("[S]tatutes which provide that no action shall be brought, or right enforced, unless brought or enforced within a certain time, are ... statutes of limitation").417To be sure, a limitation provision may be held to be nothing more than a bar to bringing suit, even though its terms are ostensibly more ambitious than the language of the classic formulations cited above. Thus, for example, in Distribution Servs., Ltd. v. Eddie Parker Interests, Inc., 897 F.2d 811 (1990), the Fifth Circuit concluded that § 3(6) of the Carriage of Goods by Sea Act is a statute of limitation permitting counterclaim brought by way of recoupment, despite its fierce-sounding provision that "the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods," 46 U. S. C. App. § 1303(6).Section 1635(f), however, takes us beyond any question whether it limits more than the time for bringing a suit, by governing the life of the underlying right as well. The subsection says nothing in terms of bringing an action but instead provides that the "right of rescission [under the Act] shall expire" at the end of the time period. It talks not of a suit's commencement but of a right's duration, which it addresses in terms so straightforward as to render any limitation on the time for seeking a remedy superfluous. There is no reason, then, even to resort to the canons of construction that we use to resolve doubtful cases, such as the rule that the creation of a right in the same statute that provides a limitation is some evidence that the right was meant to be limited, not just the remedy. See Midstate Horticultural Co., supra, at 360; Burnett, supra, at 427, n. 2; Davis v. Mills, 194 U. S. 451, 454 (1904).The Act, however, has left even less to chance (if that is possible) than its "expire" provision would allow, standing alone. It is useful to look ahead to § 1640 with its provisions for recovery of damages. Subsection (e) reads that the i-year limit on actions for damages "does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from418the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law." 15 U. S. C. § 1640(e). Thus the effect of the 1-year limitation provision on damages actions is expressly deflected from recoupment claims. The quite different treatment of rescission stands in stark contrast to this, however, there being no provision for rescission as a defense that would mitigate the uncompromising provision of § 1635(f) that the borrower's right "shall expire" with the running of the time. Indeed, when Congress amended the Act in 1995 to soften certain restrictions on rescission as a defense in § 8, 109 Stat. 275-276, 15 U. S. C. §§ 1635(i)(1) and (2) (1994 ed., Supp. I), it took care to provide that any such liberality was "subject to the [three year] time period provided in subsection (f)," ibid., and it left a borrower's only hope for further recoupment in the slim promise of § 1635(i)(3), that "[n]othing in this subsection affects a consumer's right of rescission in recoupment under State law." § 8, 109 Stat. 276.6 Thus, recoupment of damages and rescission in the nature of recoupment receive unmistakably different treatments, which under the normal rule of construction are understood to reflect a deliberate intent on the part of Congress. See Bates v. United States, 522 U. S. 23, 29-30 (1997) ('" "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion"''') (quoting Russello v. United States, 464 U. S. 16, 23 (1983), in turn quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972)). And the distinction thus indicated makes perfectly good sense. Since a statutory right of rescission could cloud a bank's title on foreclosure,6 Since there is no claim before us that Florida law purports to provide any right to rescind defensively on the grounds relevant under the Act, we have no occasion to explore how state recoupment law might work when raised in a foreclosure proceeding outside the 3-year period.419Congress may well have chosen to circumscribe that risk, while permitting recoupment damages regardless of the date a collection action may be brought. See Board of Governors of Federal Reserve System, Annual Report to Congress on Truth in Lending for the Year 1971, p. 19 (Jan. 3, 1972); National Commission on Consumer Finance, Consumer Credit in the United States 189-190 (Dec. 1972).We respect Congress's manifest intent by concluding that the Act permits no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run. Accordingly, we affirm the judgment of the Supreme Court of Florida.It is so ordered

OCTOBER TERM, 1997SyllabusBEACH ET ux. v. OCWEN FEDERAL BANKCERTIORARI TO THE SUPREME COURT OF FLORIDA No. 97-5310. Argued March 2, 1998-Decided April 21, 1998Petitioners David and Linda Beach refinanced their Florida house in 1986 with a loan from Great Western Bank. In 1991, they stopped making mortgage payments, and in 1992 Great Western began this foreclosure proceeding. Respondent bank was thereafter substituted as the plaintiff. The Beaches acknowledged their default but raised affirmative defenses, alleging, inter alia, that the bank's failure to make disclosures required by the Truth in Lending Act gave them the right under 15 U. S. C. § 1635 to rescind the mortgage agreement. The Florida trial court rejected that defense, holding, among other things, that any right to rescind had expired in 1989 under § 1635(f), which provides that the right of rescission "shall expire" three years after the loan closes. The State's intermediate appellate court affirmed, as did the Florida Supreme Court. That court remarked that § 1635(f)'s plain language evidences an unconditional congressional intent to limit the right of rescission to three years and distinguished its prior cases permitting a recoupment defense by ostensibly barred claims as involving statutes of limitation, not statutes extinguishing rights defensively asserted.Held: A borrower may not assert the § 1635 right to rescind as an affirmative defense in a collection action brought by the lender after § 1635(f)'s 3-year period has run. Absent "the clearest congressional language" to the contrary, Reiter v. Cooper, 507 U. S. 258, 264, a defendant may raise a claim in recoupment, a "'defense arising out of some feature of the transaction upon which the plaintiff's action is grounded,'" Rothensies v. Electric Storage Battery Co., 329 U. S. 296, 299 (quoting Bull v. United States, 295 U. S. 247, 262), even if the applicable statute of limit ation would otherwise bar the claim as an independent cause of action. The 3-year period of § 1635(f), however, is not a statute of limitation that governs only the institution of suit; instead, it operates, with the lapse of time, to extinguish the right of rescission. The section's uncompromising statement that the borrower's right "shall expire" with the running of time manifests a congressional intent to extinguish completely the right of rescission at the end of the 3-year period. The absence of a provision authorizing rescission as a defense stands in stark contrast to § 1640(e), which expressly provides that the Act's I-year limitation on actions for recovery of damages "does not bar ... assert[ion of] a violation ... in an action ... brought more than one year from the411date of the ... violation as a matter of defense by recoupment." This quite different treatment of recoupment of damages and rescission in the nature of recoupment must be understood to reflect a deliberate intent on the part of Congress, see Bates v. United States, 522 U. S. 23, 2930, and makes perfectly good sense. Since a statutory rescission right could cloud a bank's title on foreclosure, Congress may well have chosen to circumscribe that risk, while permitting recoupment of damages regardless of the date a collection action may be brought. Pp. 415-419.692 So. 2d 146, affirmed.SOUTER, J., delivered the opinion for a unanimous Court.Bruce S. Rogow argued the cause for petitioners. With him on the briefs were Beverly A. Pohl and Michael Tankersley.Carter G. Phillips argued the cause for respondent. With him on the brief were James A. Huizinga, Michael F. Wasserman, Steven Ellison, and Patricia Lebow. *JUSTICE SOUTER delivered the opinion of the Court. Under the Truth in Lending Act, 82 Stat. 146, 15 U. S. C. § 1601 et seq., when a loan made in a consumer credit transaction is secured by the borrower's principal dwelling, the borrower may rescind the loan agreement if the lender fails to deliver certain forms or to disclose important terms accurately. See 15 U. S. C. § 1635. Under § 1635(f) of the statute, this right of rescission "shall expire" in the usual case three years after the loan closes or upon the sale of the secured property, whichever date is earlier. The question here is whether a borrower may assert this right to rescind as an affirmative defense in a collection action brought by the lender more than three years after the consummation*Briefs of amici curiae urging reversal were filed for the American Association of Retired Persons by Jean Constantine-Davis and Nina F. Simon; and for Dorothy Botelho et al. by Richard J. Rubin and Gary Klein.Thomas M. Hefferon, John C. Englander, and Jeremiah S. Buckley filed a brief for the Federal Home Loan Mortgage Corp. et al. as amici curiae urging affirmance.412Full Text of Opinion

1997_96-568

to the legal point we must decide, and in the interest of both brevity and dignity we shall describe them only generally. In late October 1991, Oncale was working for respondent Sundowner Offshore Services, Inc., on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority, App. 41, 77, 43. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by Lyons, Pippen, and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape.Oncale's complaints to supervisory personnel produced no remedial action; in fact, the company's Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippen "picked [on] him all the time too," and called him a name suggesting homosexuality. Id., at 77. Oncale eventually quit-asking that his pink slip reflect that he "voluntarily left due to sexual harassment and verbal abuse." Id., at 79. When asked at his deposition why he left Sundowner, Oncale stated: "I felt that if I didn't leave my job, that I would be raped or forced to have sex." Id., at 71.Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex. Relying on the Fifth Circuit's decision in Garcia v. Elf Atochem North America, 28 F.3d 446, 451-452 (1994), the District Court held that "Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers." App. 106. On appeal, a panel of the Fifth Circuit concluded that Garcia was binding Circuit precedent, and affirmed. 83 F.3d 118 (1996). We granted certiorari. 520 U. S. 1263 (1997).78IITitle VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be 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." 78 Stat. 255, as amended, 42 U. S. C. § 2000e-2(a)(1). We have held that this not only covers "terms" and "conditions" in the narrow contractual sense, but "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986) (citations and internal quotation marks omitted). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (citations and internal quotation marks omitted).Title VII's prohibition of discrimination "because of ... sex" protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682 (1983), and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." Castaneda v. Partida, 430 U. S. 482, 499 (1977). See also id., at 515-516, n. 6 (Powell, J., joined by Burger, C. J., and REHNQUIST, J., dissenting). In Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616 (1987), a male employee claimed that his employer discriminated against him because of his sex when it preferred a female employee for promotion. AI-79though we ultimately rejected the claim on other grounds, we did not consider it significant that the supervisor who made that decision was also a man. See id., at 624-625. If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination "because of ... sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.Courts have had little trouble with that principle in cases like Johnson, where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a "hostile environment" sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-sex sexual harassment claims are never cognizable under Title VII. See also, e. g., Goluszek v. H. P. Smith, 697 F. Supp. 1452 (ND Ill. 1988). Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (CA4 1996), with Wrightson v. Pizza Hut of America, 99 F.3d 138 (CA4 1996). Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations. See Doe v. Belleville, 119 F.3d 563 (CA7 1997).We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discrimina-80t[ion] ... because of ... sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discriminat[ion] ... because of ... sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, supra, at 25 (GINSBURG, J., concurring).Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer di-81rect comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] ... because of ... sex."And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized in Meritor and Harris, the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview." Harris, 510 U. S., at 21, citing Meritor, 477 U. S., at 67. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as male-on-male horseplay or intersexual flirtation-for discriminatory "conditions of employment."We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." Harris, supra, at 23. In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The8282 ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC.THOMAS, J., concurringreal social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.IIIBecause we conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1997SyllabusONCALE v. SUNDOWNER OFFSHORE SERVICES, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 96-568. Argued December 3, 1997-Decided March 4,1998Petitioner Oncale filed a complaint against his employer, respondent Sundowner Offshore Services, Inc., claiming that sexual harassment directed against him by respondent co-workers in their workplace constituted "discriminat[ion] ... because of ... sex" prohibited by Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(a)(1). Relying on Fifth Circuit precedent, the District Court held that Oncale, a male, had no Title VII cause of action for harassment by male co-workers. The Fifth Circuit affirmed.Held: Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. Title VII's prohibition of discrimination "because of ... sex" protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682, and in the related context of racial discrimination in the workplace this Court has rejected any conclusive presumption that an employer will not discriminate against members of his own race, Castaneda v. Partida, 430 U. S. 482, 499. There is no justification in Title VII's language or the Court's precedents for a categorical rule barring a claim of discrimination "because of ... sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Recognizing liability for same-sex harassment will not transform Title VII into a general civility code for the American workplace, since Title VII is directed at discrimination because of sex, not merely conduct tinged with offensive sexual connotations; since the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same, and the opposite, sex; and since the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. Pp. 78-82.83 F.3d 118, reversed and remanded.SCALIA, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion, post, p. 82.76Nicholas Canaday III argued the cause for petitioner.With him on the briefs were Andre P. LaPlace and Eric Schnapper.Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Pinzler, Deputy Solicitor General Waxman, Beth S. Brinkmann, C. Gregory Stewart, J. Ray Terry, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler.Harry M. Reasoner argued the cause for respondents.With him on the brief were John H. Smither, Marie R. Yeates, Thomas H. Wilson, and Samuel Issacharoff*JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether workplace harassment can violate Title VII's prohibition against "discriminat[ion] ... because of ... sex," 42 U. S. C. § 2000e-2(a)(1), when the harasser and the harassed employee are of the same sex.IThe District Court having granted summary judgment for respondents, we must assume the facts to be as alleged by petitioner Joseph Oncale. The precise details are irrelevant*Briefs of amici curiae urging reversal were filed for the Association of Trial Lawyers of America by Ellen Simon Sacks and Christopher P. Thorman; for the Lambda Legal Defense and Education Fund et al. by Beatrice Dohrn, John Davidson, Ruth Harlow, Steven R. Shapiro, Sara L. Mandelbaum, and Minna J. Kotkin; for the National Employment Lawyers Association by Margaret A. Harris and Anne Golden; for the National Organization on Male Sexual Victimization, Inc., by Catharine A. MacKinnon; and for Law Professors by Nan D. Hunter.Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; and for the Texas Association of Business & Chambers of Commerce by Jeffrey C. Londa and Linda Ottinger Headley.77Full Text of Opinion

1992_91-1538

tate. At the time of his death, Smith worked as a carpenter at McMurdo Station on Ross Island, Antarctica, for a construction company under contract to the National Science Foundation, an agency of the United States. Smith and two companions one day took a recreational hike to Castle Rock, located several miles outside of McMurdo Station. On their return, they departed from the marked route to walk across a snow field in the direction of Scott Base, a New Zealand outpost not far from McMurdo Station. After stopping for a snack, one of the three men took a step and suddenly dropped from sight. Smith followed, and he, too, disappeared. Both men had fallen into a crevasse. Despite search and rescue efforts, Smith died from exposure and internal injuries suffered as a result of the fall.Petitioner filed this wrongful-death action against the United States under the FTCA in the District Court for the District of Oregon, the district where she resides. Petitioner alleged that the United States was negligent in failing to provide adequate warning of the dangers posed by crevasses in areas beyond the marked paths. It is undisputed that petitioner's claim is based exclusively on acts or omissions occurring in Antarctica. Upon the motion of the United States, the District Court dismissed petitioner's complaint for lack of subject-matter jurisdiction, 702 F. Supp. 1480 (1989), holding that her claim was barred by 28 U. S. C. § 2680(k), the foreign-country exception. Section 2680(k) precludes the exercise of jurisdiction over "[a]ny claim arising in a foreign country."The Court of Appeals affirmed, 953 F.2d 1116 (CA9 1991).It noted that the term "foreign country" admits of multiple interpretations, and thus looked to the language and structure of the FTCA as a whole to determine whether Antarctica is a "foreign country" within the meaning of the statute. Adopting the analysis and conclusion of then-Judge Scalia, see Beattie v. United States, 244 U. S. App. D. C. 70, 85-109, 756 F.2d 91, 106-130 (1984) (Scalia, J., dissenting), the Court200of Appeals ruled that the FTCA does not apply to claims arising in Antarctica. To hold otherwise, the Court of Appeals stated, would render two other provisions of the FTCA, 28 U. S. C. §§ 1402(b), 1346(b), nonsensical. The Court of Appeals held, in the alternative, that petitioner's suit would be barred even if Antarctica were not a "foreign country" for purposes of the FTCA. Because the FTCA was a limited relinquishment of the common-law immunity of the United States, the Court of Appeals concluded that the absence of any clear congressional intent to subject the United States to liability for claims arising in Antarctica precluded petitioner's suit. We granted certiorari to resolve a conflict between two Courts of Appeals,2 504 U. S. 984 (1992), and now affirm.Petitioner argues that the scope of the foreign-country exception turns on whether the United States has recognized the legitimacy of another nation's sovereign claim over the foreign land. Otherwise, she contends, the land is not a "country" for purposes of the FTCA. Petitioner points out that the United States does not recognize the validity of other nations' claims to portions of Antarctica. She asserts, moreover, that this construction of the term "foreign country" is most consistent with the purpose underlying the foreign-country exception. According to petitioner, Congress enacted the foreign-country exception in order to insulate the United States from tort liability imposed pursuant to foreign law. Because Antarctica has no law of its own, petitioner claims that conventional choice-of-Iaw rules control and require the application of Oregon law, the law of her domicil. Thus, petitioner concludes, the rationale for the foreign-country exception would not be compromised by the exercise of jurisdiction here, since the United States2 Cf. Beattie v. United States, 244 U. S. App. D. C. 70, 756 F.2d 91 (1984) (holding that Antarctica is not a "foreign country" within the meaning of the FTCA).201would not be subject to liability under the law of a foreign nation.Petitioner's argument for governmental liability here faces significant obstacles in addition to the foreign-country exception, but we turn first to the language of that proviso. It states that the FTCA's waiver of sovereign immunity does not apply to "[a]ny claim arising in a foreign country." 28 U. S. C. § 2680(k). Though the FTCA offers no definition of "country," the commonsense meaning of the term undermines petitioner's attempt to equate it with "sovereign state." The first dictionary definition of "country" is simply "[a] region or tract of land." Webster's New International Dictionary 609 (2d ed. 1945). To be sure, this is not the only possible interpretation of the term, and it is therefore appropriate to examine other parts of the statute before making a final determination. But the ordinary meaning of the language itself, we think, includes Antarctica, even though it has no recognized government.Our construction of the term "foreign country" draws support from the language of § 1346(b), "[t]he principal provision of the Federal Tort Claims Act." Richards v. United States, 369 U. S. 1, 6 (1962). That section waives the sovereign immunity of the United States for certain torts committed by federal employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U. S. C. § 1346(b) (emphasis added). We have construed § 1346(b) in determining what law should apply in actions brought under the FTCA. See Richards, supra. But by its terms the section is more than a choiceof-law provision: It delineates the scope of the United States' waiver of sovereign immunity. If Antarctica were not a "foreign country," and for that reason included within the FTCA's coverage, § 1346(b) would instruct courts to look to the law of a place that has no law in order to determine the202liability of the United States-surely a bizarre result.3 Of course, if it were quite clear from the balance of the statute that governmental liability was intended for torts committed in Antarctica, then the failure of § 1346(b) to specify any governing law might be treated as a statutory gap that the courts could fill by decisional law. But coupled with what seems to us the most natural interpretation of the foreigncountry exception, this portion of § 1346(b) reinforces the conclusion that Antarctica is excluded from the coverage of the FTCA.Section 1346(b) is not, however, the only FTCA provision that contradicts petitioner's interpretation of the foreigncountry exception. The statute's venue provision, § 1402(b), provides that claims under the FTCA may be brought "only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." Because no federal judicial district encompasses Antarctica, petitioner's interpretation of the FTCA would lead to yet another anomalous result: The FTCA would establish jurisdiction for all tort claims against the United States arising in Antarctica, but no venue would exist unless the claimant happened to reside in the United States.4 As we observed in Brunette3 Nor can the law of the plaintiff's domicil, Oregon here, be substituted in FTCA actions based on torts committed in Antarctica. "Congress has expressly stated that the Government's liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred .... " Richards v. United States, 369 U. S. 1,9 (1962). Petitioner does not contend that her cause of action is based on acts or omissions occurring in Oregon.4 The history of the FTCA reveals that Congress declined to enact earlier versions of the statute that would have differentiated between foreign and United States residents. Those versions would have barred claims "arising in a foreign country in behalf of an alien." S. 2690, 76th Cong., 1st Sess., § 303(12) (1939) (emphasis added); H. R. 7236, 76th Cong., 1st Sess., § 303(12) (1939) (emphasis added). At the suggestion of the Attorney General, the last five words of the proposed bills were dropped. See Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 29, 35, 66 (1942). As we observed in203Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706, 710, n. 8 (1972), "Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other." Thus, in construing the FTCA, it is "reasonable to prefer the construction that avoids leaving such a gap," ibid., especially when that construction comports with the usual meaning of a disputed term.Our decisions interpreting the FTCA contain varying statements as to how it should be construed. See, e. g., United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951); Dalehite v. United States, 346 U. S. 15, 31 (1953); United States v. Orleans, 425 U. S. 807, 813 (1976); Kosak v. United States, 465 U. S. 848, 853, n. 9 (1984). See also United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992). A recent statement of this sort, and the one to which we now adhere, is found in United States v. Kubrick, 444 U. S. 111, 117-118 (1979) (citations omitted): "We should also have in mind that the Act waives the immunity of the United States and that ... we should not take it upon ourselves to extend the waiver beyond that which Congress intended. Neither, however, should we assume the authority to narrow the waiver that Congress intended." Reading the foreign-country exception to the FTCA to exclude torts committed in Antarctica accords with this canon of construction.Lastly, the presumption against extraterritorial application of United States statutes requires that any lingering doubt regarding the reach of the FTCA be resolved againstUnited States v. Spelar, 338 U. S. 217, 220 (1949), "[t]he superseded draft had made the waiver of the Government's traditional immunity turn upon the fortuitous circumstance of the injured party's citizenship." The amended version, however, "identified the coverage of the Act with the scope of United States sovereignty." Id., at 220-221. At least insofar as Antarctica is concerned, petitioner's interpretation of the FTCA would effectively resurrect the scheme rejected by Congress; it would deny relief to foreign residents in circumstances where United States residents could recover.204its encompassing torts committed in Antarctica. "It is a longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'" EEOC v. Arabian American Oil Co., 499 U. S. 244,248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949)). In applying this principle, "[w]e assume that Congress legislates against the backdrop of the presumption against extraterritoriality." Arabian American Oil Co., supra, at 248; accord, e. g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 440 (1989) ("When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute"). The applicability of the presumption is not defeated here just because the FTCA specifically addresses the issue of extraterritorial application in the foreign-country exception. To the contrary, as we stated in United States v. Spelar, 338 U. S. 217, 222 (1949), "[t]hat presumption, far from being overcome here, is doubly fortified by the language of this statute and the legislative purpose underlying it." Petitioner does not assert, nor could she, that there is clear evidence of congressional intent to apply the FTCA to claims arising in Antarctica.5For all of these reasons, we hold that the FTCA's waiver of sovereign immunity does not apply to tort claims arising in Antarctica. Some of these reasons are based on the language and structure of the statute itself; others are based on presumptions as to extraterritorial application of Acts of Congress and as to waivers of sovereign immunity. We5 Petitioner instead argues that the presumption against extraterritoriality applies only if it serves to avoid "'unintended clashes between our laws and those of other nations which could result in international discord.''' Brief for Petitioner 16 (quoting EEOC v. Arabian American Oil Co., 499 U. S., at 248). But the presumption is rooted in a number of considerations, not the least of which is the commonsense notion that Congress generally legislates with domestic concerns in mind.205think these norms of statutory construction have quite likely led us to the same conclusion that the 79th Congress would have reached had it expressly considered the question we now decide: It would not have included a desolate and extraordinarily dangerous land such as Antarctica within the scope of the FTCA. The judgment of the Court of Appeals is thereforeAffirmed

OCTOBER TERM, 1992SyllabusSMITH v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 91-1538. Argued December 7, 1992-Decided March 8,1993After her husband was killed in Antarctica-a sovereignless region without civil tort law of its own-while he was working for a private firm under contract to a federal agency, petitioner filed this wrongful-death action against the United States under the Federal Tort Claims Act (FTCA). The District Court dismissed the complaint for lack of subject-matter jurisdiction, holding that the claim was barred by the FTCA's foreign-country exception, which states that the statute's waiver of sovereign immunity does not apply to "[a]ny claim arising in a foreign country," 28 U. S. C. § 2680(k). The Court of Appeals affirmed.Held: The FTCA does not apply to tortious acts or omissions occurring in Antarctica. The ordinary meaning of "foreign country" includes Antarctica, even though it has no recognized government. If this were not so, § 1346(b)-which waives sovereign immunity for certain torts committed "under circumstances where the United States, if a private person, would be liable ... in accordance with the law of the place where the act or omission occurred" (emphasis added)-would have the bizarre result of instructing courts to look to the law of a place that has no law in order to determine the United States' liability. Similarly, if Antarctica were included within the FTCA's coverage, § 1402(b)-which provides that claims may be brought "only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred" -would have the anomalous result of limiting venue to cases in which the claimant happened to reside in the United States, since no federal judicial district encompasses Antarctica. This interpretation of the FTCA accords with the canon of construction that prohibits courts from either extending or narrowing the statute's sovereign immunity waiver beyond what Congress intended, United States v. Kubrick, 444 U. S. 111, 117-118, and with the presumption against extraterritorial application of United States statutes, see, e. g., EEOC v. Arabian American Oil Co., 499 U. S. 244, 248. It is unlikely that Congress, had it expressly considered the question when it passed the FTCA, would have included a desolate and extraordinarily dangerous land such as Antarctica within the statute's scope. Pp. 200-205.953 F.2d 1116, affirmed.198REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 205.David J. Bederman argued the cause for petitioner. With him on the briefs were Allen T. Murphy, Jr., and David Gernant.Christopher J. Wright argued the cause for the United States. On the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and Mark B. Stern.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.This case presents the question whether the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346(b), 1402(b), 2401(b), 2671-2680 (1988 ed. and Supp. II), applies to tortious acts or omissions occurring in Antarctica, a sovereignless region without civil tort law of its own.1 We hold that it does not.Petitioner Sandra Jean Smith is the widow of John Emmett Smith and the duly appointed representative of his es-1 Without indigenous human population and containing roughly onetenth of the world's land mass, Antarctica is best described as "an entire continent of disputed territory." F. Auburn, Antarctic Law and Politics 1 (1982). Seven nations-Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom-presently assert formal claims to pie-shaped portions of the continent that total about 85 percent of its expanse. Boczek, The Soviet Union and the Antarctic Regime, 78 Am. J. Int'l L. 834, 840 (1984); Hayton, The Antarctic Settlement of 1959, 54 Am. J. Int'l L. 349 (1960). The United States does not recognize other nations' claims and does not itself assert a sovereign interest in Antarctica, although it maintains a basis for such a claim. Lissitzyn, The American Position on Outer Space and Antarctica, 53 Am. J. Int'l L. 126, 128 (1959). In any event, these sovereign claims have all been suspended by the terms of the Antarctic Treaty, concluded in 1959. Antarctic Treaty, Dec. 1, 1959, [1961] 12 U. S. T. 794, T. I. A. S. No. 4780. Article IV of the treaty states that no claim may be enforced, expanded, or compromised while the treaty is in force, id., art. IV, 12 U. S. T., at 796, thus essentially freezing nations' sovereign claims as of the date of the treaty's execution.199Full Text of Opinion

1978_78-91

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case involves a dispute over the ownership of church property following a schism in a local church affiliated with a hierarchical church organization. The question for decision is whether civil courts, consistent with the First and Fourteenth Amendments to the Constitution, may resolve the dispute on the basis of "neutral principles of law," or whether they must defer to the resolution of an authoritative tribunal of the hierarchical church.IThe Vineville Presbyterian Church of Macon, Ga., was organized in 1904, and first incorporated in 1915. Its corporate charter lapsed in 1935, but was revived and renewed in 1939, and continues in effect at the present time.The property at issue and on which the church is located was acquired in three transactions, and is evidenced by conveyances to the "Trustees of [or "for"] Vineville Presbyterian Church and their successors in office," App. 251, 253, or simply to the "Vineville Presbyterian Church." Id. at 249. The funds used to acquire the property were contributed entirely by local church members. Pursuant to resolutions adopted by the congregation, the church repeatedly has borrowed money on the property. This indebtedness is evidenced by security deeds variously issued in the name of the "Trustees of the Vineville Presbyterian Church," e.g., id. at 278, or, again, simply the "Vineville Presbyterian Church." Id. at 299.In the same year it was organized, the Vineville church was established as a member church of the Augusta-Macon Presbytery of the Presbyterian Church in the United States (PCUS). The PCUS has a generally hierarchical or connectional Page 443 U. S. 598 form of government, as contrasted with a congregational form. Under the polity of the PCUS, the government of the local church is committed to its Session in the first instance, but the actions of this assembly or "court" are subject to the review and control of the higher church courts, the Presbytery, Synod, and General Assembly, respectively. The powers and duties of each level of the hierarchy are set forth in the constitution of the PCUS, the Book of Church Order, which is part of the record in the present case.On May 27, 1973 at a congregational meeting of the Vineville church attended by a quorum of its duly enrolled members, 164 of them, including the pastor, voted to separate from the PCUS. Ninety-four members opposed the resolution. The majority immediately informed the PCUS of the action, and then united with another denomination, the Presbyterian Church in America. Although the minority remained on the church rolls for three years, they ceased to participate in the affairs of the Vineville church and conducted their religious activities elsewhere.In response to the schism within the Vineville congregation, the Augusta-Macon Presbytery appointed a commission to investigate the dispute and, if possible, to resolve it. The commission eventually issued a written ruling declaring that the minority faction constituted "the true congregation of Vineville Presbyterian Church," and withdrawing from the majority faction "all authority to exercise office derived from the [PCUS]." App. 235. The majority took no part in the commission's inquiry, and did not appeal its ruling to a higher PCUS tribunal.Representatives of the minority faction sought relief in federal court, but their complaint was dismissed for want of jurisdiction. Lucas v. Hope, 515 F.2d 234 (CA5 1975), cert. denied, 424 U.S. 967 (1976). They then brought this class action in state court, seeking declaratory and injunctive orders establishing their right to exclusive possession and use of the Page 443 U. S. 599 Vineville church property as a member congregation of the PCUS. The trial court, purporting to apply Georgia's "neutral principles of law" approach to church property disputes, granted judgment for the majority. The Supreme Court of Georgia, holding that the trial court had correctly stated and applied Georgia law, and rejecting the minority's challenge based on the First and Fourteenth Amendments, affirmed. 241 Ga. 208, 243 S.E.2d 860 (1978). We granted certiorari. 439 U.S. 891 (1978).IIGeorgia's approach to church property litigation has evolved in response to Presbyterian Church v. Hull Church, 393 U. S. 440 (1969) (Presbyterian Church I), rev'g Presbyterian Church v. Eastern Heights Church, 224 Ga. 61, 159 S.E.2d 690 (1968). That case was a property dispute between the PCUS and two local Georgia churches that had withdrawn from the PCUS. The Georgia Supreme Court resolved the controversy by applying a theory of implied trust, whereby the property of a local church affiliated with a hierarchical church organization was deemed to be held in trust for the general church, provided the general church had not "substantially abandoned" the tenets of faith and practice as they existed at the time of affiliation. [Footnote 1] This Court reversed, holding that Georgia would have to find some other way of resolving church property disputes that did not draw the state courts into religious controversies. The Court did not specify what that method should be, although it noted in passing that"there are neutral principles of law, developed for use in all property disputes, which can be applied without 'establishing' churches to which property is awarded."393 U.S. at 393 U. S. 449. Page 443 U. S. 600On remand, the Georgia Supreme Court concluded that, without the "departure from doctrine" element, the implied trust theory would have to be abandoned in its entirety. Presbyterian Church v. Eastern Heights Church, 225 Ga. 259, 167 S.E.2d 658 (1969) (Presbyterian Church II). In its place, the court adopted what is now known as the "neutral principles of law" method for resolving church property disputes. The court examined the deeds to the properties, the state statutes dealing with implied trusts, Ga.Code §§ 108-106, 108-107 (1978), and the Book of Church Order to determine whether there was any basis for a trust in favor of the general church. Finding nothing that would give rise to a trust in any of these documents, the court awarded the property on the basis of legal title, which was in the local church, or in the names of trustees for the local church. 225 Ga. at 261, 167 S.E.2d at 660. Review was again sought in this Court, but was denied. 396 U.S. 1041 (1970).The neutral principles analysis was further refined by the Georgia Supreme Court in Carnes v. Smith, 236 Ga. 30, 222 S.E.2d 322, cert. denied, 429 U.S. 868 (1976). That case concerned a property dispute between The United Methodist Church and a local congregation that had withdrawn from that church. As in Presbyterian Church II, the court found no basis for a trust in favor of the general church in the deeds, the corporate charter, or the state statutes dealing with implied trusts. The court observed, however, that the constitution of The United Methodist Church, its Book of Discipline, contained an express trust provision in favor of the general church. [Footnote 2] On this basis, the church property was Page 443 U. S. 601 awarded to the denominational church. 236 Ga. at 39, 222 S.E.2d at 328.In the present case, the Georgia courts sought to apply the neutral principles analysis of Presbyterian Church II and Carnes to the facts presented by the Vineville church controversy. Here, as in those two earlier cases, the deeds conveyed the property to the local church. Here, as in the earlier cases, neither the state statutes dealing with implied trusts nor the corporate charter of the Vineville church indicated that the general church had any interest in the property. And here, as in Presbyterian Church II, but in contrast to Carnes, the provisions of the constitution of the general church, the Book of Church Order, concerning the ownership and control of property failed to reveal any language of trust in favor of the general church. The courts accordingly held that legal title to the property of the Vineville church was vested in the local congregation. Without further analysis or elaboration, they further decreed that the local congregation was represented by the majority faction, respondents herein. App. to Pet. for Cert. 9a.; 241 Ga. at 212, 243 S.E.2d at 864. Page 443 U. S. 602IIIThe only question presented by this case is which faction of the formerly united Vineville congregation is entitled to possess and enjoy the property located at 2193 Vineville Avenue in Macon, Ga. There can be little doubt about the general authority of civil courts to resolve this question. The State has an obvious and legitimate interest in the peaceful resolution of property disputes, and in providing a civil forum where the ownership of church property can be determined conclusively. Presbyterian Church I, 393 U.S. at 393 U. S. 445.It is also clear, however, that "the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes." Id. at 393 U. S. 449. Most importantly, the First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. Serbian Orthodox Diocese v. Milivojevich, 426 U. S. 696, 426 U. S. 710 (1976); Maryland & Va. Churches v. Sharpsburg Church, 396 U. S. 367, 396 U. S. 368 (1970); Presbyterian Church I, 393 U.S. at 393 U. S. 449. As a corollary to this commandment, the Amendment requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization. Serbian Orthodox Diocese, 426 U.S. at 426 U. S. 724-725; cf. 80 U. S. Jones, 13 Wall. 679, 80 U. S. 733-734 (1872). Subject to these limitations, however, the First Amendment does not dictate that a State must follow a particular method of resolving church property disputes. Indeed,"a State may adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith."Maryland & Va. Churches, 396 U.S. at 396 U. S. 368. (BRENNAN, J., concurring) (emphasis in original).At least in general outline, we think the "neutral principles of law" approach is consistent with the foregoing constitutional principles. The neutral principles approach was approved Page 443 U. S. 603 in Maryland & Va. Churches, supra, an appeal from a judgment of the Court of Appeals of Maryland settling a local church property dispute on the basis of the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property. Finding that this analysis entailed "no inquiry into religious doctrine," the Court dismissed the appeal for want of a substantial federal question. 396 U.S. at 396 U. S. 368. "Neutral principles of law" also received approving reference in Presbyterian Church I, 393 U.S. at 393 U. S. 449; in MR. JUSTICE BRENNAN's concurrence in Maryland & Va. Churches, 396 U.S. at 396 U. S. 370; and in Serbian Orthodox Diocese, 426 U.S. at 426 U. S. 723 n. 15. [Footnote 3]The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well established concepts of trust and property law familiar to lawyers and judges. It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice. Furthermore, the neutral principles analysis shares the peculiar genius of private law systems in general -- flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization Page 443 U. S. 604 can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members.This is not to say that the application of the neutral principles approach is wholly free of difficulty. The neutral principles method, at least as it has evolved in Georgia, requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church. In undertaking such an examination, a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust. In addition, there may be cases where the deed, the corporate charter, or the constitution of the general church incorporates religious concepts in the provisions relating to the ownership of property. If, in such a case, the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body. Serbian Orthodox Diocese, 426 U.S. at 426 U. S. 709.On balance, however, the promise of nonentanglement and neutrality inherent in the neutral principles approach more than compensates for what will be occasional problems in application. These problems, in addition, should be gradually eliminated as recognition is given to the obligation of"States, religious organizations, and individuals [to] structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions."Presbyterian Church I, 393 U.S. at 393 U. S. 449. We therefore hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.The dissent would require the States to abandon the neutral principles method, and instead would insist as a matter of constitutional law that, whenever a dispute arises over the Page 443 U. S. 605 ownership of church property, civil courts must defer to the "authoritative resolution of the dispute within the church itself." Post at 443 U. S. 614. It would require, first, that civil courts review ecclesiastical doctrine and polity to determine where the church has "placed ultimate authority over the use of the church property." Post at 443 U. S. 619. After answering this question, the courts would be required to "determine whether the dispute has been resolved within that structure of government and, if so, what decision has been made." Post at 443 U. S. 619 n. 6. They would then be required to enforce that decision. We cannot agree, however, that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.The dissent suggests that a rule of compulsory deference would somehow involve less entanglement of civil courts in matters of religious doctrine, practice, and administration. Under its approach, however, civil courts would always be required to examine the polity and administration of a church to determine which unit of government has ultimate control over church property. In some cases, this task would not prove to be difficult. But in others, the locus of control would be ambiguous, and"[a] careful examination of the constitutions of the general and local church, as well as other relevant documents, [would] be necessary to ascertain the form of governance adopted by the members of the religious association."Post at 443 U. S. 619-620. In such cases, the suggested rule would appear to require "a searching and therefore impermissible inquiry into church polity." Serbian Orthodox Diocese, 426 U.S. at 426 U. S. 723. The neutral principles approach, in contrast, obviates entirely the need for an analysis or examination of ecclesiastical polity or doctrine in settling church property disputes.The dissent also argues that a rule of compulsory deference is necessary in order to protect the free exercise rights "of Page 443 U. S. 606 those who have formed the association and submitted themselves to its authority." Post at 443 U. S. 618. This argument assumes that the neutral principles method would somehow frustrate the free exercise rights of the members of a religious association. Nothing could be further from the truth. The neutral principles approach cannot be said to "inhibit" the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods. Under the neutral principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. [Footnote 4]IVIt remains to be determined whether the Georgia neutral principles analysis was constitutionally applied on the facts of this case. Although both the trial court and the Supreme Court of Georgia viewed the case as involving nothing more than an application of the principles developed in Presbyterian Church II and in Carnes, the present case contains a significant complicating factor absent in each of those earlier cases. Presbyterian Church II and Carnes each involved a Page 443 U. S. 607 church property dispute between the general church and the entire local congregation. Here, the local congregation was itself divided between a majority of 164 members who sought to withdraw from the PCUS and a minority of 94 members who wished to maintain the affiliation. Neither of the state courts alluded to this problem, however; each concluded without discussion or analysis that the title to the property was in the local church and that the local church was represented by the majority rather than the minority.Petitioners earnestly submit that the question of which faction is the true representative of the Vineville church is an ecclesiastical question that cannot be answered by a civil court. At least, it is said, it cannot be answered by a civil court in a case involving a hierarchical church, like the PCUS, where a duly appointed church commission has determined which of the two factions represents the "true congregation." Respondents, in opposition, argue in effect that the Georgia courts did no more than apply the ordinary presumption that, absent some indication to the contrary, a voluntary religious association is represented by a majority of its members.If, in fact, Georgia has adopted a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means, we think this would be consistent with both the neutral principles analysis and the First Amendment. Majority rule is generally employed in the governance of religious societies. See Bouldin v. Alexander, 15 Wall. 131 (1872). Furthermore, the majority faction generally can be identified without resolving any question of religious doctrine or polity. Certainly there was no dispute in the present case about the identity of the duly enrolled members of the Vineville church when the dispute arose, or about the fact that a quorum was present, or about the final vote. Most importantly, any rule of majority representation can always be overcome, under the neutral principles approach, either by providing, in the corporate Page 443 U. S. 608 charter or the constitution of the general church, that the identity of the local church is to be established in some other way, or by providing that the church property is held in trust for the general church and those who remain loyal to it. Indeed, the State may adopt any method of overcoming the majoritarian presumption, so long as the use of that method does not impair free exercise rights or entangle the civil courts in matters of religious controversy. [Footnote 5]Neither the trial court nor the Supreme Court of Georgia, however, explicitly stated that it was adopting a presumptive rule of majority representation. [Footnote 6] Moreover, there are at least some indications that under Georgia law the process of identifying the faction that represents the Vineville church involves considerations of religious doctrine and polity. Georgia law requires that "church property be held according to the terms of the church government," and provides that a local church affiliated with a hierarchical religious association "is part of the whole body of the general church and is subject to the higher authority of the organization and its laws and regulations." Carnes v. Smith, 236 Ga. at 33, 38, 222 S.E.2d at Page 443 U. S. 609 325, 328; see Ga.Code §§ 22-5507, 22-5508 (1978). All this may suggest that the identity of the "Vineville Presbyterian Church" named in the deeds must be determined according to terms of the Book of Church Order, which sets out the laws and regulations of churches affiliated with the PCUS. Such a determination, however, would appear to require a civil court to pass on questions of religious doctrine, [Footnote 7] and to usurp the function of the commission appointed by the Presbytery, which already has determined that petitioners represent the "true congregation" of the Vineville church. Therefore, if Georgia law provides that the identity of the Vineville church is to be determined according to the "laws and regulations" of the PCUS, then the First Amendment requires that the Georgia courts give deference to the presbyterial commission's determination of that church's identity. [Footnote 8]This Court, of course, does not declare what the law of Georgia is. Since the grounds for the decision that respondents Page 443 U. S. 610 represent the Vineville church remain unarticulated, the judgment of the Supreme Court of Georgia is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtJones v. Wolf, 443 U.S. 595 (1979)Jones v. WolfNo. 78-91Argued Jan. 16, 1979Decided July 2, 1979443 U.S. 595SyllabusThis case involves a dispute over the ownership of church property following a schism in a local church affiliated with a hierarchical church organization. The property of the Vineville Presbyterian Church of Macon, Ga. (local church), is held in the names of the local church or of trustees for the local church. That church, however, was established as a member of the Augusta-Macon Presbytery of the Presbyterian Church in the United States (PCUS), which has a generally hierarchical form of government. Under the polity of the PCUS, the government of the local church is committed to its Session in the first instance, but the actions of this "court" are subject to the review and control of the higher church courts (the Presbytery, Synod, and General Assembly). At a congregational meeting attended by a quorum of the local church's members, 164 of them voted to separate from the PCUS, while 94 opposed the resolution. The majority then united with another denomination and has retained possession of the local church property. The Augusta-Macon Presbytery appointed a commission to investigate the dispute, and the commission eventually issued a ruling declaring that the minority faction constituted the "true congregation" of the local church, and withdrawing from the majority faction "all authority to exercise office derived from the [PCUS]." Representatives of the minority faction brought this class action in state court, seeking declaratory and injunctive orders establishing their right to exclusive possession and use of the local church's property as a member of the PCUS. The trial court, purporting to apply Georgia's "neutral principles of law" approach to church property disputes, granted judgment for the majority. The Georgia Supreme Court affirmed, holding that the trial court had correctly stated and applied Georgia law and rejecting the minority's challenge based on the First and Fourteenth Amendments.Held:1. As a means of adjudicating a church property dispute, a State is constitutionally entitled to adopt a "neutral principles of law" analysis involving consideration of the deeds, state statutes governing the holding of church property, the local church's charter, and the general church's constitution. The First Amendment does not require the States to adopt a rule of compulsory deference to religious authority in Page 443 U. S. 596 resolving church property disputes, even where no issue of doctrinal controversy is involved. Pp. 443 U. S. 602-606.2. Here, the case must be remanded since the grounds for the Georgia courts' decision that the majority faction represents the local church were not articulated, both the trial court and the Georgia Supreme Court having applied Georgia's neutral principles analysis as developed in cases involving church property disputes between general churches and entire local congregations, without alluding to the significant complicating factor in the present case that the local congregation was itself divided. If in fact Georgia has adopted a presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means, this would be consistent with both the neutral principles analysis and the First Amendment. However, there are at least some indications that, under Georgia law, the process of identifying the faction that represents a local church involves considerations of religious doctrine and polity, and thus, if Georgia law provides that the identity of the local church here is to be determined according to the laws and regulations of the PCUS, then the First Amendment requires that the Georgia courts give deference to the presbyterial commission's determination that the minority faction represents the "true congregation." Pp. 443 U. S. 606-610.241 Ga. 208, 243 S.E.2d 860, vacated and remanded. Page 443 U. S. 597

1981_80-702

JUSTICE BLACKMUN delivered the opinion of the Court.We are presented here with a recurring problem: to what extent may a State impose taxes on contractors that conduct business with the Federal Government?IAThis case concerns the contractual relationship between three private entities and the United States. The three agreements involved are typical in most respects of management contracts devised by the Atomic Energy Commission Page 455 U. S. 723 (AEC), now the Department of Energy (DOE). [Footnote 1] Like many of the Government's contractual undertakings, DOE management contracts generally provide the private contractor with its costs plus a fixed fee. But in several ways, DOE agreements are a unique species of contract, designed to facilitate long-term private management of Government-owned research and development facilities. As the parties to this case acknowledge, the complex and intricate contractual provisions make it virtually impossible to describe the contractual relationship in standard agency terms. See App.196-197; Hiestand & Florsheim, The AEC Management Contract Concept, 29 Federal B.J. 67 (1969) (Hiestand & Florsheim). While subject to the general direction of the Government, the contractors are vested with substantial autonomy in their operations and procurement practices. [Footnote 2]The first of the contractors, Sandia Corporation, was organized in 1949 as a subsidiary of Western Electric Company, Inc. Sandia manages the Government-owned Sandia Laboratories in Albuquerque, N.M., and engages exclusively in federally sponsored research. It receives no fee under its contract, and owns no property except for $1,000 in United States bonds that constitute its paid-in capital. But Sandia and Western Electric are guaranteed royalty-free, irrevocable licenses for any communications-related discoveries or inventions developed by most Sandia employees during the Page 455 U. S. 724 course of the contract, App. 335, and the company receives complete reimbursements for salary outlays and other expenditures. Id. at 402. [Footnote 3]The Zia Company, another of the contractors, is a subsidiary of Santa Fe Industries, Inc. Since 1946, Zia has performed a variety of management, maintenance, and related functions at the Government's Los Alamos Scientific Laboratory, for which it receives its costs as well as a fixed annual fee. While Zia owns property and performs private work, virtually none of its property is used in the performance of its contract with the Government, and all of its private activities are conducted away from Los Alamos by a separate workforce.The third contractor is Los Alamos Constructors, Inc. (LACI), since 1953 a subsidiary of Zia. LACI's operations are limited to construction and repair work at the Los Alamos facility. The company owns no tangible personal property and makes no purchases; it procures needed property and equipment through its parent, Zia. And like Zia, LACI receives its costs plus a fixed annual fee from the Government.The management contracts between the Government and the three contractors have a number of significant features in common. As in most DOE atomic facility management agreements, the contracts provide that title to all tangible personal property purchased by the contractors passes directly from the vendor to the Government. App. 231a (Zia); id. at 34 (Sandia). [Footnote 4] Similarly, the Government bears the Page 455 U. S. 725 risk of loss for property procured by the contractors. Zia and LACI must submit an annual voucher of expenditures for Government approval. Id. at 20 (Zia); id. at 27 (LACI). [Footnote 5] And the agreements give the Government control over the disposition of all property purchased under the contracts, as well as over each contractor's property management procedures. Disputes under the contracts are to be resolved by a DOE contracting official. Id. at 128-129 (Zia standard terms) and 157-158 (Sandia standard terms).On the other hand, the contractors place orders with third-party suppliers in their own names, and identify themselves as the buyers. See id. at 36-37 (Sandia contract) and 120 (Zia standard terms). Indeed, the Government acknowledged during discovery that Sandia, Zia, and LACI"may be . . . 'independent contractor[s],' rather than . . . 'servant[s]' for . . . given 'function[s] under' the contract[s] (e.g., directing the details of day-to-day . . . operations and the hiring and direct supervision of employees),"id. at 197, and the Government does not claim that the contractors are federal instrumentalities. Id. at 201; see Department of Employment v. United States, 385 U. S. 355 (1966). Similarly, the United States disclaims responsibility for torts committed by the contractors' employees, and maintains that such employees have no claim against the United States for labor-related grievances. See 624 F.2d 111, 116-117, n. 6 (CA10 1980).Finally, and most importantly, the contracts use a so-called "advanced funding" procedure to meet contractor costs. Advanced funding, an accounting device developed shortly after the conclusion of the Manhattan Project, is designed to provide "up-to-date meaningful records of costs and controls of property," as well as to "speed up reimbursement of contractors." Page 455 U. S. 726 App. 204 (Fifth Semiannual Report of the Atomic Energy Commission (1949)). The procedure allows contractors to pay creditors and employees with drafts drawn on a special bank account in which United States Treasury funds are deposited. [Footnote 6]To put the advanced funding mechanism in place, the United States, the contractor, and a bank establish a designated bank account, pursuant to a three-party contract. The Government dispatches a letter of credit to a Federal Reserve Bank in favor of the contractor, making Treasury funds available in the designated account. The contractor pays its expenses by drawing on the account, at which time the bank or the contractor executes a payment voucher in an amount sufficient to cover the draft. The voucher is forwarded to the Federal Reserve Bank. The United States owns the account balance. See id. at 19-20, 84 9Oa, 109-113. As a result of all this, only federal funds are expended when the contractor makes purchases. If the Government fails to provide funding, the contractor is excused from performance of the contract, and the Government is liable for all properly incurred claims.Prior to July 1, 1977, the Government's contracts with Sandia, Zia, and LACI did not refer to the contractors as federal "agents." On that date -- some two years after the commencement of this litigation -- the agreements were modified to state that each contractor "acts as an agent [of the Government] . . . for certain purposes," including the disbursement of Government funds and the "purchase, lease, or other acquisition" of property. Id. at 50-51, 55-56, 590. This was designed to recognize what was described as the "longstanding agency status and authority" of the contractors. Id. at 50, 55, 59. Thus it was made clear that Sandia and Page 455 U. S. 727 Zia were authorized to "pledge the credit of the United States," id. at 52 and 56, and the Government declared that it "considers all obligations properly incurred" in accordance with the contractual provisions to be Government obligations "from their inception." Id. at 52 (Sandia), 56 (Zia), and 60 (LACI). At the same time, however, the United States denied any intent "formally and directly [to] designat[e] the contractors as agents," id. at 64, and each modification stated that it did not "create rights or obligations not otherwise provided for in the contract." Id. at 52, 57, 61.BNew Mexico imposes a gross receipts tax and a compensating use tax on those doing business within the State. With limited exceptions,"[f]or the privilege of engaging in business, an excise tax equal to four per cent [4%] of gross receipts is imposed on any person engaging in business in New Mexico."N.M.Stat.Ann. § 72-16A-4 (Supp.1975). [Footnote 7] In effect, the gross receipts tax operates as a tax on the sale of goods and services. The State also levies a compensating use tax, equivalent in amount to the gross receipts tax, "[f]or the privilege of using property in New Mexico." § 72-16A-7. This is imposed on property acquired out-of-state in a "transaction that would have been subject to the gross receipts tax had it occurred within [New Mexico]." § 72-16A-7(A)(2). [Footnote 8] Thus the compensating use tax functions Page 455 U. S. 728 as an enforcement mechanism for the gross receipts tax by imposing a levy on the use of all property that has not already been taxed; the State collects the same percentage regardless of where the property is purchased. Neither tax, however, is imposed on the "receipts of the United States or any agency or instrumentality thereof," or on the "use of property by the United States or any agency or instrumentality thereof." §§ 72-16A-12.1, 72-16A-12.2.Without objection, Zia and LACI each year paid the New Mexico gross receipts tax on the fixed fees they received from the Federal Government. But the Government argued that the contractors' other expenditures and operations are constitutionally immune from state taxation. In July, 1975, the United States therefore initiated this suit in the United States District Court for the District of New Mexico, seeking a declaratory judgment that advanced funds are not taxable gross receipts to the contractors; that the receipts of vendors selling tangible property to the United States through the contractors cannot be taxed by the State; and that the use of Government-owned property by the contractors is not subject to the State's compensating use tax. App. 11-12. [Footnote 9]The District Court granted the United States summary judgment. Relying on Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110 (1954), the court determined that the crucial inquiry is whether the contractors are "procurement agents" Page 455 U. S. 729 for the Government. The court answered that question in the affirmative, noting that the Government"maintains control over the contractors' procurement systems, property management and disposal practices, method of payment of operational costs, and other operations under the contracts."455 F. Supp. 993, 997 (1978). That analysis led the court to identify an agency relationship existing even in the years prior to the 1977 contract modifications. Ibid. The court therefore held that the gross receipts tax cannot constitutionally be applied to purchases by the contractors; because the court viewed the compensating use tax as a correlative of the receipts tax, it determined that the use tax also was invalid as applied to Sandia, Zia, and LACI. Id. at 998. Finally, the court ruled that advanced funds do not serve as compensation to the contractors, and therefore cannot be taxed as gross receipts. Id. at 998-999.The United States Court of Appeals for the Tenth Circuit reversed. 624 F.2d 111 (1980). In its view, this Court's decisions in the tax immunity area have been"more concerned with preserving the delicate financial balance between our coexisting sovereignties than with rigid adherence to agency law terminology."Id. at 116. Advanced funding, the court declared,"is simply another means of reimbursement devised by accountants to eliminate major weaknesses in the government's bookkeeping practices."Id. at 119. In meeting overhead and salaries with Government funds, the contractors were satisfying their own obligations, and they exercised dominion over the funds by issuing drafts to obligees. And insofar as the claims of third-party vendors are concerned, the court found federal "responsibility for properly incurred claims to be inherent in all cost-type contracts," id. at 119, n. 9; any number of businesses act under letters of credit from banks and other sureties, and the Federal Government itself finances a variety of organizations -- including States and local governments -- in such a manner. Page 455 U. S. 730The other contractual provisions relied on by the District Court -- federal control over procurement systems, management practices, and the like -- failed to impress the Court of Appeals. It concluded that the Government-contractor relationship, viewed as a whole, did not "so incorporat[e] [the contractors] into the government structure as to [make them] instrumentalities of the United States. . . .'" Id. at 118, quoting United States v. Boyd, 378 U. S. 39, 378 U. S. 48 (1964). And that Sandia received no fee for its services was of little consequence, in the court's view, because "decisions on the amount of fee, if any, to be paid a government contractor are not made primarily with agency consequences in mind." 624 F.2d at 120. Since the 1977 contractual amendments, by their terms, added nothing of substance to the agreements, they did not affect the court's analysis. The District Court was directed to enter summary judgment for New Mexico. Id. at 121.The United States sought certiorari, and we granted the writ to consider the seemingly intractable problems posed by state taxation of federal contractors. 450 U.S. 909 (1981).IIAWith the famous declaration that "the power to tax involves the power to destroy," McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 431 (1819), Chief Justice Marshall announced for the Court the doctrine of federal immunity from state taxation. In so doing he introduced the Court to what has become a "much litigated and often confused field," United States v. City of Detroit, 355 U. S. 466, 355 U. S. 473 (1958), one that has been marked from the beginning by inconsistent decisions and excessively delicate distinctions.McCulloch itself relied on generalized notions of federal supremacy to invalidate a state tax on the Second Bank of the Page 455 U. S. 731 United States. The Court gave broad scope to state power: the opinion declined to"deprive the States of any resources which they originally possessed. It does not extend to . . . a tax imposed on the interest which the citizens of Maryland may hold in [the Bank], in common with other property of the same description throughout the State."4 Wheat. at 17 U. S. 436. Not long afterwards, however, Chief Justice Marshall, speaking for the Court, seemingly disregarded the McCulloch dictum in striking down a state tax on interest income from federal bonds, explaining that such levies cannot constitutionally fall on an "operation essential to the important objects for which the government was created." Weston v. City Council of Charleston, 2 Pet. 449, 27 U. S. 467 (1829). During the following century, the Court took to heart Weston's expansive analysis of federal tax immunity, invalidating, among many others, state taxes on the income of federal employees, Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842); on income derived from property leased from the Federal Government, Gillespie v. Oklahoma, 257 U. S. 501 (1922); and on sales to the United States, Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 (1928). [Footnote 10]These decisions, it has been said, were increasingly divorced both from the constitutional foundations of the immunity doctrine and from "the actual workings of our federalism," Graves v. New York ex rel. O'Keefe, 306 U. S. 466, 306 U. S. 490 (1939) (Frankfurter, J., concurring), and in James v. Dravo Contracting Co., 302 U. S. 134 (1937), by a 5-4 vote, the Court marked a major change in course. Over the dissent's Page 455 U. S. 732 justifiable objections that it was "overrul[ing], sub silentio, a century of precedents," id. at 302 U. S. 161, the Court upheld a state tax on the gross receipts of a contractor providing services to the Federal Government:"'[I]t is not necessary to cripple [the State's power to tax] by extending the constitutional exemption from taxation to those subjects which fall within the general application of nondiscriminatory laws, and where no direct burden is laid upon the governmental instrumentality, and there is only a remote, if any, influence upon the exercise of the functions of government.'"Id. at 302 U. S. 150, quoting Willcuts v. Bunn, 282 U. S. 216, 282 U. S. 225 (1931).The Court's more recent cases involving federal contractors generally have hewed to the James analysis. Alabama v. King & Boozer, 314 U. S. 1 (1941), upheld a state tax on sales to a federal contractor, overruling Panhandle Oil Co. v. Mississippi ex rel. Knox, supra. Decisions such as United States v. City of Detroit, supra, have validated state use taxes on private entities holding federal property.Even the Court's post-James decisions, however, cannot be set in an entirely unwavering line. United States v. Allegheny County, 322 U. S. 174 (1944), invalidated a state property tax that included in the assessment the value of federal machinery held by a private party; 14 years later, that decision, in large part, was overruled by United States v. City of Detroit, supra. See United States v. County of Fresno, 429 U. S. 452, 429 U. S. 462-463, n. 10 (1977). In Livingston v. United States, 364 U. S. 281 (1960), summarily aff'g 179 F. Supp. 9 (EDSC 1959), the Court, without opinion or citation, approved the invalidation of a state use tax as applied to a federal contractor. Yet United States v. Boyd, supra, upheld a virtually identical state tax, seemingly confining Livingston to its "extraordinary" facts. 378 U.S. at 378 U. S. 45, n. 6.Similarly, the decisions fail to speak with one voice on the relevance of traditional agency rules in determining the tax Page 455 U. S. 733 immunity status of federal contractors. Thus, Alabama v. King & Boozer, supra, declined to find immunity in part because the contractors involved lacked the "status of agents," 314 U.S. at 314 U. S. 13, and United States v. Township of Muskegon, 355 U. S. 484, 365 U. S. 486 (1958), upheld a use tax on a federal contractor with the caveat that the "case might well be different if [the contractor] . . . could properly be called a servant' of the United States in agency terms." See Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110 (1954). Yet James v. Dravo Contracting Co., supra, stated flatly that tax immunity is not dependent "`upon the nature of the agents, or upon the mode of their constitution, or upon the fact that they are agents.'" 302 U.S. at 302 U. S. 154, quoting Railroad Co. v. Peniston, 18 Wall. 5, 85 U. S. 36 (1873) (plurality opinion). And United States v. Boyd, supra, rejected the Government's argument that its contractors were federal agents, and therefore tax immune, stating simply that the private entities were not "instrumentalities of the United States." 378 U. S:, at 378 U. S. 48.BWe have concluded that the confusing nature of our precedents counsels a return to the underlying constitutional principle. The one constant here, of course, is simple enough to express: a State may not, consistent with the Supremacy Clause, U.S.Const., Art. VI, cl. 2, lay a tax "directly upon the United States." Mayo v. United States, 319 U. S. 441, 319 U. S. 447 (1943). While"[o]ne could, and perhaps should, read M'Culloch . . . simply for the principle that the Constitution prohibits a State from taxing discriminatorily a federally established instrumentality,"First Agricultural Bank v. State Tax Comm'n, 392 U. S. 339, 392 U. S. 350 (1968) (dissenting opinion), the Court has never questioned the propriety of absolute federal immunity from state taxation. And after 160 years, the doctrine has gathered "a momentum of authority that reflects, if not a detailed exposition of considerations of policy demanded by our federal system, certainly a deep instinct Page 455 U. S. 734 that there are such considerations. . . ." City of Detroit v. Murray Corp., 355 U. S. 489, 355 U. S. 503-504 (1958) (opinion of Frankfurter, J.).But the limits on the immunity doctrine are, for present purposes, as significant as the rule itself. Thus, immunity may not be conferred simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy. That is the import of Alabama v. King & Boozer, where a sales tax was imposed on the gross receipts of a vendor selling to a cost-plus Government contractor. The Court found it constitutionally irrelevant that the United States reimbursed all the contractor's expenditures, including those going to meet the tax: the Government's right to be free from state taxation"does not spell immunity from paying the added costs attributable to the taxation of those who furnish supplies to the Government and who have been granted no tax immunity."314 U.S. at 314 U. S. 9. That the contractor is purchasing property for the Government is similarly irrelevant; in King & Boozer, title to goods purchased by the contractor vested in the United States immediately upon shipment by the seller. Id. at 314 U. S. 13.Similarly, immunity cannot be conferred simply because the state tax falls on the earnings of a contractor providing services to the Government. James v. Dravo Contracting Co., supra. And where a use tax is involved, immunity cannot be conferred simply because the State is levying the tax on the use of federal property in private hands, United States v. City of Detroit, supra, even if the private entity is using the Government property to provide the United States with goods, United States v. Township of Muskegon, supra; City of Detroit v. Murray Corp., supra, or services, Curry v. United States, 314 U. S. 14 (1941); United States v. Boyd, supra. In such a situation, the contractor's use of the property "in connection with commercial activities carried on for Page 455 U. S. 735 profit," is "a separate and distinct taxable activity." United States v. Boyd, 378 U.S. at 378 U. S. 44. Indeed, immunity cannot be conferred simply because the tax is paid with Government funds; that was apparently the case in Boyd, where the contractor made expenditures under an advanced funding arrangement similar to the one involved here. Id. at 378 U. S. 41.What the Court's cases leave room for, then, is the conclusion that tax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned. This view, we believe, comports with the principal purpose of the immunity doctrine, that of forestalling "clashing sovereignty," McCulloch v. Maryland, 4 Wheat. at 17 U. S. 43, by preventing the States from laying demands directly on the Federal Government. See City of Detroit v. Murray Corp., 355 U.S. at 355 U. S. 504-505 (opinion of Frankfurter, J.). As the federal structure -- along with the workings of the tax immunity doctrine [Footnote 11] -- has evolved, this command has taken on essentially symbolic importance, as the visible "consequence of that [federal] supremacy which the constitution has declared." McCulloch v. Maryland, 4 Wheat. at 17 U. S. 436. At the same time, a narrow approach to governmental tax immunity accords with competing constitutional imperatives, Page 455 U. S. 736 by giving full range to each sovereign's taxing authority. See Graves v. New York ex rel. O'Keefe, 306 U.S. at 306 U. S. 483.Thus, a finding of constitutional tax immunity requires something more than the invocation of traditional agency notions: to resist the State's taxing power, a private taxpayer must actually "stand in the Government's shoes." City of Detroit v. Murray Corp., 355 U.S. at 355 U. S. 503 (opinion of Frankfurter, J.). That conclusion is compelled by the Court's principal decisions exploring the nature of the Constitution's immunity guarantee. Chief Justice Hughes' opinion for the Court in James, which set the doctrine on its modern course, suggested that a state tax is impermissible when the taxed entity is "so intimately connected with the exercise of a power or the performance of a duty" by the Government that taxation of it would be "a direct interference with the functions of government itself.'" 302 U.S. at 302 U. S. 157, quoting Metcalf & Eddy v. Mitchell, 269 U. S. 514, 269 U. S. 524 (1926). And the point is settled by Boyd, the Court's most recent decision in the field. There, the Government argued that its contractors were tax-exempt because they were federal agents. Without any discussion of traditional agency rules, the Court rejected that suggestion out-of-hand, declaring that "we cannot believe that [the contractors are] `so assimilated by the Government as to become one of its constituent parts.'" 378 U.S. at 378 U. S. 47, quoting United States v. Township of Muskegon, 355 U.S. at 355 U. S. 486. And the Court continued:"Should the [Atomic Energy] Commission intend to build or operate the plant with its own servants and employees, it is well aware that it may do so and familiar with the ways of doing it. It chose not to do so here. We cannot conclude that [the contractors], both cost-plus contractors for profit, have been so incorporated into the government structure as to become instrumentalities of the United States, and thus enjoy governmental immunity."378 U.S. at 378 U. S. 48. The Court's other cases describing the nature of a federal instrumentality have used similar language: "virtually . . . an Page 455 U. S. 737 arm of the Government," Department of Employment v. United States, 385 U.S. at 385 U. S. 359-360; "integral parts of [a governmental department]," and "arms of the Government deemed by it essential for the performance of governmental functions," Standard Oil Co. v. Johnson, 316 U. S. 481, 316 U. S. 485 (1942).Granting tax immunity only to entities that have been "incorporated into the government structure" can forestall, at least to a degree, some of the manipulation and wooden formalism that occasionally have marked tax litigation -- and that have no proper place in determining the allocation of power between coexisting sovereignties. In this case, for example, the Government and its contractors modified their agreements two years into the litigation in an obvious attempt to strengthen the case for nonliability. Yet the Government resists using its own employees for the tasks at hand -- or, indeed, even formally designating Sandia, Zia, and LACI as agents -- because it seeks to tap the expertise of industry without subjecting its contractors to burdensome federal procurement regulations. See Hiestand & Florsheim at 81; App. 182-184. Instead, the Government earnestly argues that its contractors are entitled to tax immunity because, among other things, they draw checks directly on federal funds, instead of waiting a time for reimbursement. Brief for United States 32-35. We cannot believe that an immunity of constitutional stature rests on such technical considerations, for that approach allows "any government functionary to draw the constitutional line by changing a few words in a contract." Kern-Limerick, Inc. v. Scurlock, 347 U.S. at 347 U. S. 126 (dissenting opinion).If the immunity of federal contractors is to be expanded beyond its narrow constitutional limits, it is Congress that must take responsibility for the decision, by so expressly providing as respects contracts in a particular form, or contracts under particular programs. James v. Dravo Contracting Co., 302 U.S. at 302 U. S. 161; Carson v. Roane-Anderson Co., 342 U. S. 232, 342 U. S. 234 (1952). And this allocation of responsibility is wholly Page 455 U. S. 738 appropriate, for the political process is "uniquely adapted to accommodating the competing demands" in this area. Massachusetts v. United States, 435 U. S. 444, 435 U. S. 456 (1978) (plurality opinion). See United States v. City of Detroit, 355 U.S. at 355 U. S. 474. But, absent congressional action, we have emphasized that the States' power to tax can be denied only under "the clearest constitutional mandate." Michelin Tire Corp. v. Wages, 423 U. S. 276, 423 U. S. 293 (1976).IIIIt remains to apply these principles to the Sandia, Zia, and LACI contracts. The Government concedes that the legal incidence of the gross receipts and use taxes falls on the contractors, Brief for United States 25, and we do not disagree. See United States v. New Mexico, 581 F.2d 803, 806 (CA10 1978). The issue, then, is whether the contractors can realistically be considered entities independent of the United States. If so, a tax on them cannot be viewed as a tax on the United States itself.So far as the use tax is concerned, United States v. Boyd, supra, controls this case. The contracts at issue in Boyd were standard AEC management contracts, in all relevant respects identical to the ones here. The contractors performed maintenance and construction work at Government facilities, under the general direction of the Government. They procured materials, and paid for the goods with Government funds under an advanced funding arrangement; title passed directly from the vendor to the United States. The contractors owned none of the property involved, and received a fixed annual fee. Indeed, one of the contractor's purchase orders stated that it made purchases "for and on behalf of the Government." 378 U.S. at 378 U. S. 42, n. 4. And the Tennessee use tax did not differ in any significant way from the use tax now before us. [Footnote 12] Page 455 U. S. 739As noted above, the Government argued that this close contractual relationship made the contractors federal agents, and therefore tax-immune. Yet the Court had no difficulty upholding the application of the Tennessee tax, concluding that "[t]he vital thing' is that [the contractors are] `using the property in connection with [their] own commercial activities.'" Id. at 378 U. S. 45, quoting United States v. Township of Muskegon, 355 U.S. at 355 U. S. 486. That the federal property involved was being used for the Government's benefit -- something that, by definition, will be true in virtually every management contract -- was irrelevant, for the contractors remained distinct entities pursuing "private ends," and their actions remained "commercial activities carried on for profit." 378 U.S. at 378 U. S. 44. For that reason, the contractors Page 455 U. S. 740 had not become "instrumentalities" of the United States. Id. at 378 U. S. 48. [Footnote 13]The same factors are at work here. The tax, the taxed activity, and the contractual relationships do not differ from those involved in Boyd. The contractors here are privately owned corporations; "Government officials do not run [their] day-to-day operations nor does the Government have any ownership interest." First Agricultural Bank v. State Tax Comm'n, 392 U.S. at 392 U. S. 354 (dissenting opinion). In contrast to federal employees, then, Sandia and its fellow contractors cannot be termed "constituent parts" of the Federal Government. It is true, of course, that employees are a special type of agent, and, like the contractors here, employees are paid for their services. But the differences between an employee and one of these contractors are crucial. The congruence of professional interests between the contractors and the Federal Government is not complete; their relationships with the Government have been created for limited and carefully defined Page 455 U. S. 741 purposes. Allowing the States to apply use taxes to such entities does not offend the notion of federal supremacy. [Footnote 14]For similar reasons, the New Mexico gross receipts tax must be upheld as applied to funds received by the contractors to meet salaries and internal costs. Once it is conceded that the contractors are independent taxable entities, it cannot be disputed that their gross income is taxable. This conclusion follows directly from James v. Dravo Contracting Co., supra, where the Court upheld a state tax reaching "gross amounts received from the United States." 302 U.S. at 302 U. S. 137. In any event, incurring obligations to achieve contractual ends is not significantly different from using property for the same purposes. And despite the Government's arguments, the use of advanced funding does not change the analysis. That device is, at heart, an efficient method of reimbursing contractors -- something the Government has apparently recognized in contexts other than tax litigation. See App. 31 (Sandia contract), 189 (Ninth Semiannual Report of the Atomic Energy Commission (1951)), 191 (same). If receipt of advanced funding is coextensive with status as a federal instrumentality, virtually every federal contractor is, or could easily become, immune from state taxation.New Mexico's tax on sales to the contractors presents a more complex problem. So far as the use tax discussed above is concerned, the subject of the levy is the taxed entity's beneficial use of the property involved. See United States v. Boyd, 378 U.S. at 378 U. S. 44. Unless the entity as a whole is one of the Government's "constituent parts," then, a Page 455 U. S. 742 tax on its use of property should not be seen as falling on the United States; in that situation, the property is being used in furtherance of the contractor's essentially independent commercial enterprise. In the case of a sales tax, however, it is arguable that an entity serving as a federal procurement agent can be so closely associated with the Government, and so lack an independent role in the purchase, as to make the sale -- in both a real and a symbolic sense -- a sale to the United States, even though the purchasing agent has not otherwise been incorporated into the Government structure.Such was the Court's conclusion in Kern-Limerick, Inc. v. Scurlock, supra, a decision on which the Government heavily relies. The contractor in that case identified itself as a federal procurement agent, and, when it made purchases, title passed directly to the Government; the purchase orders themselves declared that the purchase was made by the Government, and that the United States was liable on the sale. Equally as important, the contractor itself was not liable for the purchase price, and it required specific Government approval for each transaction. See 347 U.S. at 347 U. S. 120-121. And, as the Court emphasized, the statutory procurement scheme envisioned the use of federal purchasing agents. Id. at 347 U. S. 114. The Court concluded that a sale to the contractor was, in effect, a sale to the United States, and therefore not a proper subject for the Arkansas sales tax. [Footnote 15] As we have noted elsewhere, Kern-Limerick "stands only for the proposition that the State may not impose a tax the legal incidence of which falls on the Federal Government." United States v. County of Fresno, 429 U.S. at 429 U. S. 459-460, n. 7.We think it evident that the Kern-Limerick principle does not invalidate New Mexico's sales tax as applied to purchases made by the contractors here. Even accepting the Government's representation that it is directly liable to vendors for Page 455 U. S. 743 the purchase price, see Tr. of Oral Arg. 425, [Footnote 16] Sandia and Zia nevertheless make purchases in their own names -- Sandia, in fact, is contractually obligated to do so, App. 37 -- and presumably they are themselves liable to the vendors. Vendors are not informed that the Government is the only party with an independent interest in the purchase, as was true in Kern-Limerick, and the Government disclaims any formal intention to denominate the contractors as purchasing agents. Similarly, Sandia and Zia need not obtain advance Government approval for each purchase. [Footnote 17] These factors demonstrate that the contractors have a substantial independent role in making purchases, and that the identity of interests between the Government and the contractors is far from complete. As a result, sales to Zia and Sandia are, in neither a real nor a symbolic sense, sales to the "United States itself." It is true that title passes directly from the vendor to the Federal Government, but that factor alone cannot make the transaction a purchase by the United States, so long as the purchasing entity, in its role as a purchaser, is sufficiently distinct from the Government. Alabama v. King & Boozer, 314 U.S. at 314 U. S. 13.There is a final irony in this case. In Carson v. Roane-Anderson Co., 342 U. S. 232 (1952), the Court considered a state sales and use tax imposed on AEC management contractors. The terms of the contracts were, in most relevant respects, identical to the ones here, and, insofar as they differed, they established an even closer relationship between Page 455 U. S. 744 the Government and the contractors. See Brief for United States, O.T. 1951, Nos. 186 and 187, pp. 8-12. The Court held that, in the last sentence of § 9(b) of the Atomic Energy Act of 1946, 60 Stat. 76 -- which barred state or local taxation of AEC "activities" -- Congress had statutorily exempted the contractors from state taxation because the operations of management contractors were Commission activities. 342 U.S. at 342 U. S. 234. Congress responded by repealing the last sentence of § 9(b), Pub.L. 262, 67 Stat. 575, in an attempt to "place the Commission and its activities on the same basis, with respect to immunity from State and local taxation, as other Federal agencies." S.Rep. No. 694, 83d Cong., 1st Sess., 3 (1953). In doing so, Congress endorsed the principle that"constitutional immunity does not extend to cost plus fixed fee contractors of the Federal Government, but is limited to taxes imposed directly upon the United States."Id. at 2.We do not suggest that the repeal of § 9(b) waives the Government's constitutional tax immunity; Congress intended AEC contractors to be shielded by constitutional immunity principles "as interpreted by the courts." S.Rep. No. 694 at 3. But it is worth remarking that DOE is asking us to establish as a constitutional rule something that it was unable to obtain statutorily from Congress. For the reasons set out above, we conclude that the contractors here are not protected by the Constitution's guarantee of federal supremacy. If political or economic considerations suggest that a broader immunity rule is appropriate, "[s]uch complex problems are ones which Congress is best qualified to resolve." United States v. City of Detroit, 355 U.S. at 355 U. S. 474.Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtUnited States v. New Mexico, 455 U.S. 720 (1982)United States v. New MexicoNo. 80-702Argued December 8, 1981Decided March 24, 1982455 U.S. 720SyllabusSandia Corporation and Zia Company have contracts with the Federal Government to manage certain Government-owned atomic laboratories located in New Mexico. Los Alamos Constructors, Inc., has a Government contract for construction and repair work at one of the laboratories. The contracts use an "advanced funding" procedure to meet contractor costs whereby the contractor is allowed to pay creditors and employees with drafts drawn on a special bank account in which United States Treasury funds are deposited, so that only federal funds are expended when the contractor meets its obligations. New Mexico imposes a gross receipts tax and a compensating use tax on those doing business within the State. The gross receipts tax in effect operates as a tax on the sale of goods and services. The use tax is imposed on property acquired out-of-state in a transaction that would have been subject to the gross receipts tax if it had occurred within the State. The Government brought suit in Federal District Court, seeking a declaratory judgment that advanced funds are not taxable gross receipts to the contractors; that the receipts of vendors selling property to the Government through the contractors cannot be taxed by the State; and that the use of Government-owned property by the contractors is not subject to the- use tax. The District Court granted summary judgment for the Government. The Court of Appeals reversed, taking the view that the Government-contractor relationships in question did not so incorporate the contractors into the Government structure as to make them "instrumentalities of the United States" immune from the New Mexico taxes.Held: The contractors, as independent taxable entities, are not protected by the Constitution's guarantee of federal supremacy, and hence are subject to the state taxes in question. Pp. 455 U. S. 730-744.(a) Federal immunity from state taxation cannot be conferred simply because the tax has an effect on the United States, or because the Federal Government shoulders the entire economic burden of the levy, or because the tax falls on the earnings of a contractor providing services to the Government. And where a use tax is involved, immunity cannot be conferred simply because the State levies the tax on the use of federal property in private hands, or, indeed, simply because the tax is paid with Page 455 U. S. 721 Government funds. Tax immunity is appropriate only when the state levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned. A finding of constitutional tax immunity therefore requires something more than the invocation of traditional agency notions. Pp. 455 U. S. 730-738.(b) With respect to the New Mexico use tax, the contractors cannot be termed "constituent parts" of the Federal Government. The congruence of professional interests between the contractors and the Government is not complete, the contractors' relationship with the Government having been created for limited and carefully defined purposes. Allowing a State to apply use taxes to such entities does not offend the notion of federal supremacy. United Sates v. Boyd, 378 U. S. 39. For similar reasons, the New Mexico gross receipts tax must be upheld as applied to funds received by the contractors to meet salaries and internal costs. As to the tax on sales to the contractors, the facts that Sandia and Zia make purchases in their own names and presumably are themselves liable to the vendors, that the vendors are not informed that the Government is the only party with an independent interest in the purchase, and that the contractors need not obtain Government approval for each purchase, all demonstrate that the contractors have a substantial independent role in making purchases, and that the identity of interests between the Government and the contractors is far from complete. As a result, sales to Sandia and Zia are in neither a real nor a symbolic sense sales to the "United States itself." Kern-Limerick, Inc. v. Scurlock, 347 U. S. 110, distinguished. The fact that title passes directly from the vendor to the Government cannot alone make the transaction a purchase by the United States, so long as the purchasing entity, in its role as purchaser, is sufficiently distinct from the Government. Pp. 455 U. S. 738-743.624 F.2d 111, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 455 U. S. 722

1978_78-482

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to consider whether a West Virginia statute violates the First and Fourteenth Amendments of the United States Constitution by making it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of any youth charged as a juvenile offender.(1)The challenged West Virginia statute provides:"[N]or shall the name of any child, in connection with any proceedings under this chapter, be published in any newspaper without a written order of the court. . . ."W.Va.Code § 49-7-3 (1976); and:"A person who violates . . . a provision of this chapter for which punishment has not been specifically provided, Page 443 U. S. 99 shall be guilty of a misdemeanor, and upon conviction shall be fined not less than ten nor more than one hundred dollars, or confined in jail not less than five days nor more than six months, or both such fine and imprisonment."§ 49-7-20.On February 9, 1978, a 15-year-old student was shot and killed at Hayes Junior High School in St. Albans, W.Va., a small community located about 13 miles outside of Charleston, W.Va. The alleged assailant, a 14-year-old classmate, was identified by seven different eyewitnesses and was arrested by police soon after the incident.The Charleston Daily Mail and the Charleston Gazette, respondents here, learned of the shooting by monitoring routinely the police band radio frequency; they immediately dispatched reporters and photographers to the junior high school. The reporters for both papers obtained the name of the alleged assailant simply by asking various witnesses, the police, and an assistant prosecuting attorney who were at the school.The staffs of both newspapers prepared articles for publication about the incident. The Daily Mail's first article appeared in its February 9 afternoon edition. The article did not mention the alleged attacker's name. The editorial decision to omit the name was made because of the statutory prohibition against publication without prior court approval.The Gazette made a contrary editorial decision, and published the juvenile's name and picture in an article about the shooting that appeared in the February 10 morning edition of the paper. In addition, the name of the alleged juvenile attacker was broadcast over at least three different radio station on February 9 and 10. Since the information had become Page 443 U. S. 100 public knowledge, the Daily Mail decided to include the juvenile's name in an article in its afternoon paper on February 10.On March 1, an indictment against the respondents was returned by a grand jury. The indictment alleged that each knowingly published the name of a youth involved in a juvenile proceeding in violation of W.Va.Code § 49-7-3 (1976). Respondents then filed an original jurisdiction petition with the West Virginia Supreme Court of Appeals, seeking a writ of prohibition against the prosecuting attorney and the Circuit Court Judges of Kanawha County, petitioners here. Respondents alleged that the indictment was based on a statute that violated the First and Fourteenth Amendments of the United States Constitution and several provisions of the State's Constitution and requested an order prohibiting the county officials from taking any action on the indictment.The West Virginia Supreme Court of Appeals issued the writ of prohibition. ___ W.Va. ___, 248 S.E.2d 269 (1978). Relying on holdings of this Court, it held that the statute abridged the freedom of the press. The court reasoned that the statute operated as a prior restraint on speech, and that the State's interest in protecting the identity of the juvenile offender did not overcome the heavy presumption against the constitutionality of such prior restraints.We granted certiorari. 439 U.S. 963 (1978).(2)Respondents urge this Court to hold that, because § 49-7-3 requires court approval prior to publication of the juvenile's name it operates as a "prior restraint" on speech. [Footnote 1] See Nebraska Page 443 U. S. 101 Press Assn: v. Stuart, 427 U. S. 539 (1976); New York Times Co. v. United States, 403 U. S. 713 (1971); Organization for a Better Austin v. Keefe, 402 U. S. 415 (171); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Respondents concede that this statute is not in the classic mold of prior restraint, there being no prior injunction against publication. Nonetheless, they contend that the prior approval requirement acts in "operation and effect" like a licensing scheme, and thus is another form of prior restraint. See Near v. Minnesota ex rel. Olson, supra at 283 U. S. 708. As such, respondents argue, the statute bears "a heavy presumption' against its constitutional validity." Organization for a Better Austin v. Keefe, supra at 402 U. S. 419. They claim that the State's interest in the anonymity of a juvenile offender is not sufficient to overcome that presumption.Petitioners do not dispute that the statute amounts to a prior restraint on speech. Rather, they take the view that, even if it is a prior restraint, the statute is constitutional because of the significance of the State's interest in protecting the identity of juveniles.(3)The resolution of this case does not turn on whether the statutory grant of authority to the juvenile judge to permit publication of the juvenile's name is, in and of itself, a prior restraint. First Amendment protection reaches beyond prior restraints, Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), and respondents acknowledge that the statutory provision for court approval of disclosure actually may have a less oppressive effect on freedom of the press than a total ban on the publication of the child's name.Whether we view the statute as a prior restraint or as a penal sanction for publishing lawfully obtained, truthful information Page 443 U. S. 102 is not dispositive because even the latter action requires the highest form of state interest to sustain its validity. Prior restraints have been accorded the most exacting scrutiny in previous cases. See Nebraska Press Assn. v. Stuart, supra at 427 U. S. 561; Organization for a Better Austin v. Keefe, supra at 402 U. S. 419; Near v. Minnesota ex rel. Olson, supra at 283 U. S. 716. See also Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975). However, even when a state attempts to punish publication after the event, it must nevertheless demonstrate that its punitive action was necessary to further the state interests asserted. Landmark Communications, Inc. v. Virginia, supra at 435 U. S. 843. Since we conclude that this statute cannot satisfy the constitutional standards defined in Landmark Communications, Inc., we need not decide whether, as argued by respondents, it operated as a prior restraint.Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards. In Landmark Communications, we declared unconstitutional a Virginia statute making it a crime to publish information regarding confidential proceedings before a state judicial review commission that heard complaints about alleged disabilities and misconduct of state court judges. In declaring that statute unconstitutional, we concluded:"[T]he publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth's interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom."435 U.S. at 435 U. S. 838.In Cox Broadcasting Corp. v. Cohn, supra, we held that damages could not be recovered against a newspaper for publishing the name of a rape victim. The suit had been based on a state statute that made it a crime to publish the name of the victim; the purpose of the statute was Page 443 U. S. 103 to protect the privacy right of the individual and the family. The name of the victim had become known to the public through official court records dealing with the trial of the rapist. In declaring the statute unconstitutional, the Court, speaking through MR. JUSTICE WHITE, reasoned:"By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. . . . States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection."420 U.S. at 420 U. S. 495.One case that involved a classic prior restraint is particularly relevant to our inquiry. In Oklahoma Publishing Co. v. District Court, 430 U. S. 308 (1977), we struck down a state court injunction prohibiting the news media from publishing the name or photograph of an 11-year-old boy who was being tried before a juvenile court. The juvenile court judge had permitted reporters and other members of the public to attend a hearing in the case notwithstanding a state statute closing such trials to the public. The court then attempted to halt publication of the information obtained from that hearing. We held that, once the truthful information was "publicly revealed" or "in the public domain," the court could not constitutionally restrain its dissemination.None of these opinions directly controls this case; however, all suggest strongly that, if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order. These cases involved situations where the government itself provided or made possible press access to the information. That factor is not controlling. Here, respondents relied upon routine newspaper reporting techniques to ascertain the identity of the alleged assailant. Page 443 U. S. 104 A free press cannot be made to rely solely upon the sufferance of government to supply it with information. See Houchins v. KQED, Inc., 438 U. S. 1, 438 U. S. 11 (1978) (plurality opinion); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 681 (1972). If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here.(4)The sole interest advanced by the State to justify its criminal statute is to protect the anonymity of the juvenile offender. It is asserted that confidentiality will further his rehabilitation because publication of the name may encourage further antisocial conduct and also may cause the juvenile to lose future employment or suffer other consequences for this single offense. In Davis v. Alaska, 415 U. S. 308 (1974), similar arguments were advanced by the State to justify not permitting a criminal defendant to impeach a prosecution witness on the basis of his juvenile record. We said there that"[w]e do not and need not challenge the State's interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender."Id. at 415 U. S. 319. However, we concluded that the State's policy must be subordinated to the defendant's Sixth Amendment right of confrontation. Ibid. The important rights created by the First Amendment must be considered along with the rights of defendants guaranteed by the Sixth Amendment. See Nebraska Press Assn. v. Stuart, 427 U.S. at 427 U. S. 561. Therefore, the reasoning of Davis that the constitutional right must prevail over the state's interest in protecting juveniles applies with equal force here.The magnitude of the State's interest in this statute is not sufficient to justify application of a criminal penalty to respondents. Moreover, the statute's approach does not satisfy constitutional requirements. The statute does not restrict Page 443 U. S. 105 the electronic media or any form of publication, except "newspapers," from printing the names of youths charged in a juvenile proceeding. In this very case, three radio stations announced the alleged assailant's name before the Daily Mail decided to publish it. Thus, even assuming the statute served a state interest of the highest order, it does not accomplish its stated purpose.In addition, there is no evidence to demonstrate that the imposition of criminal penalties is necessary to protect the confidentiality of juvenile proceedings. As the Brief for Respondents points out at 29, n. **, all 50 states have statutes that provide in some way for confidentiality, but only 5, including West Virginia, [Footnote 2] impose criminal penalties on nonparties for publication of the identity of the juvenile. Although every state has asserted a similar interest, all but a handful have found other ways of accomplishing the objective. See Landmark Communications, Inc. v. Virginia, 435 U.S. at 435 U. S. 843. [Footnote 3](5)Our holding in this case is narrow. There is no issue before us of unlawful press access to confidential judicial proceedings, see Cox Broadcasting Corp. v. Cohn, 420 U.S. at 420 U. S. 496 n. 26; there is no issue here of privacy or prejudicial pretrial publicity. At issue is simply the power of a state Page 443 U. S. 106 to punish the truthful publication of an alleged juvenile delinquent's name lawfully obtained by a newspaper. [Footnote 4] The asserted state interest cannot justify the statute's imposition of criminal sanctions on this type of publication. Accordingly, the judgment of the West Virginia Supreme Court of Appeals isAffirmed

U.S. Supreme CourtSmith v. Daily Mail Pub. Co., 443 U.S. 97 (1979)Smith v. Daily Mail Publishing Co.No. 78-482Argued March 20, 1979Decided June 26, 1979443 U.S. 97SyllabusRespondent newspapers published articles containing the name of a juvenile who had been arrested for allegedly killing another youth. Respondents learned of the event and the name of the alleged assailant by monitoring the police band radio frequency and by asking various eyewitnesses. Respondents were indicted for violating a West Virginia statute which makes it a crime for a newspaper to publish, without the written approval of the juvenile court, the name of any youth charged as a juvenile offender. The West Virginia Supreme Court of Appeals granted a writ of prohibition against petitioners, the prosecuting attorney and the Circuit Judges of Kanawha County, W.Va., holding that the statute on which the indictment was based violated the First and Fourteenth Amendments.Held: The State cannot, consistent with the First and Fourteenth Amendments, punish the truthful publication of an alleged juvenile delinquent's name lawfully obtained by a newspaper. The asserted state interest in protecting the anonymity of the juvenile offender to further his rehabilitation cannot justify the statute's imposition of criminal sanctions for publication of a juvenile's name lawfully obtained. Pp. 443 U.S. 101-106.(a) Whether the statute is viewed as a prior restraint by authorizing the juvenile judge to permit publication or as a penal sanction for publishing lawfully obtained, truthful information is not dispositive, because even the latter action requires the highest form of state interest to sustain its validity. When a state attempts to punish publication after the event, it must demonstrate that its punitive action was necessary to further the state interests asserted. Landmark Communications, Inc. v. Virginia, 435 U. S. 829. Pp. 443 U.S. 101-104.(b) Respondents' First Amendment rights prevail over the State's interest in protecting juveniles. Cf. Davis v. Alaska, 415 U. S. 308. Even assuming that the statute served a state interest of the highest order, the statute does not accomplish its stated purpose, since it does not restrict the electronic media or any form of publication except "newspapers." Pp. 443 U. S. 104-105.___ W.Va. ___, 248 S.E.2d 269, affirmed. Page 443 U. S. 98BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, post, p. 443 U. S. 106. POWELL, J., took no part in the consideration or decision of the case.

1969_606

MR. JUSTICE BLACK delivered the opinion of the Court.The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." We have held that the Fourteenth Amendment makes the guarantees of this clause obligatory upon the States. Pointer v. Texas, 380 U. S. 400 (1965). One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial. Lewis v. United States, 146 U. S. 370 (1892). The question presented in this case is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while, at the same time, he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.The issue arose in the following way. The respondent, Allen, was convicted by an Illinois jury of armed robbery, and was sentenced to serve 10 to 30 years in the Illinois State Penitentiary. The evidence against him showed Page 397 U. S. 339 that, on August 12, 1956, he entered a tavern in Illinois and, after ordering a drink, took $200 from the bartender at gunpoint. The Supreme Court of Illinois affirmed his conviction, People v. Allen, 37 Ill. 2d 167, 226 N.E.2d 1 (1967), and this Court denied certiorari. 389 U. S. 907 (1967). Later, Allen filed a petition for a writ of habeas corpus in federal court, alleging that he had been wrongfully deprived by the Illinois trial judge of his constitutional right to remain present throughout his trial. Finding no constitutional violation, the District Court declined to issue the writ. The Court of Appeals reversed, 413 F.2d 232 (1969), Judge Hastings dissenting.The facts surrounding Allen's expulsion from the courtroom are set out in the Court of Appeals' opinion sustaining Allen's contention:"After his indictment and during the pretrial stage, the petitioner [Allen] refused court-appointed counsel and indicated to the trial court on several occasions that he wished to conduct his own defense. After considerable argument by the petitioner, the trial judge told him,""I'll let you be your own lawyer, but I'll ask Mr. Kelly [court-appointed counsel] [to] sit in and protect the record for you, insofar as possible.""The trial began on September 9, 1957. After the State's Attorney had accepted the first four jurors following their voir dire examination, the petitioner began examining the first juror and continued at great length. Finally, the trial judge interrupted the petitioner, requesting him to confine his questions solely to matters relating to the prospective juror's qualifications. At that point, the petitioner started to argue with the judge in a most abusive and disrespectful manner. At last, and seemingly in desperation, the judge asked appointed Page 397 U. S. 340 counsel to proceed with the examination of the jurors. The petitioner continued to talk, proclaiming that the appointed attorney as not going to act as his lawyer. He terminated his remarks by saying, 'When I go out for lunchtime, you're [the judge] going to be a corpse here.' At that point, he tore the file which his attorney had and threw the papers on the floor. The trial judge thereupon stated to the petitioner, 'One more outbreak of that sort and I'll remove you from the courtroom.' This warning had no effect on the petitioner. He continued to talk back to the judge, saying,""There's not going to be no trial, either. I'm going to sit here and you're going to talk and you can bring your shackles out and straight jacket and put them on me and tape my mouth, but it will do no good, because there's not going to be no trial.""After more abusive remarks by the petitioner, the trial judge ordered the trial to proceed in the petitioner's absence. The petitioner was removed from the courtroom. The voir dire examination then continued, and the jury was selected in the absence of the petitioner.""After a noon recess, and before the jury was brought into the courtroom, the petitioner, appearing before the judge, complained about the fairness of the trial and his appointed attorney. He also said he wanted to be present in the court during his trial. In reply, the judge said that the petitioner would be permitted to remain in the courtroom if he 'behaved [himself] and [did] not interfere with the introduction of the case.' The jury was brought in and seated. Counsel for the petitioner then moved to exclude the witnesses from the courtroom. The [petitioner] protested this effort Page 397 U. S. 341 on the part of his attorney, saying:""There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this. I want my sister and my friends here in court to testify for me.""The trial judge thereupon ordered the petitioner removed from the courtroom."413 F.2d at 233-234. After this second removal, Allen remained out of the courtroom during the presentation of the State's case in chief, except that he was brought in on several occasions for purposes of identification. During one of these latter appearances, Allen responded to one of the judge's questions with vile and abusive language. After the prosecution's case had been presented, the trial judge reiterated his promise to Allen that he could return to the courtroom whenever he agreed to conduct himself properly. Allen gave some assurances of proper conduct, and was permitted to be present through the remainder of the trial, principally his defense, which was conducted by his appointed counsel.The Court of Appeals went on to hold that the Supreme Court of Illinois was wrong in ruling that Allen had, by his conduct, relinquished his constitutional right to be present, declaring that:"No conditions may be imposed on the absolute right of a criminal defendant to be present at all stages of the proceeding. The insistence of a defendant that he exercise this right under unreasonable conditions does not amount to a waiver. Such conditions, if insisted upon, should and must be dealt with in a manner that does not compel the relinquishment of his right.""In light of the decision in Hopt v. Utah, 110 U. S. 574 . . . (1884) and Shields v. United States, 273 Page 397 U. S. 342 U.S. 583 . . . (1927), as well as the constitutional mandate of the sixth amendment, we are of the view that the defendant should not have been excluded from the courtroom during his trial despite his disruptive and disrespectful conduct. The proper course for the trial judge was to have restrained the defendant by whatever means necessary, even if those means included his being shackled and gagged."413 F.2d at 235.The Court of Appeals felt that the defendant's Sixth Amendment right to be present at his own trial was so "absolute" that, no matter how unruly or disruptive the defendant's conduct might be, he could never be held to have lost that right so long as he continued to insist upon it, as Allen clearly did. Therefore the Court of Appeals concluded that a trial judge could never expel a defendant from his own trial, and that the judge's ultimate remedy, when faced with an obstreperous defendant, like Allen, who determines to make his trial impossible, is to bind and gag him. [Footnote 1] We cannot agree that the Sixth Amendment, the cases upon which the Court of Appeals relied, or any other cases of this Court so handicap a trial judge in conducting a criminal trial. The broad dicta in Hopt v. Utah, supra, and Lewis v. United States, 146 U. S. 370 (1892), that a trial can never continue in the defendant's absence have been expressly rejected. Diaz v. United States, 223 U. S. 442 (1912). We accept instead the statement of Mr. Justice Cardozo, who, speaking for the Court in Snyder v. Massachusetts, 291 U. S. 97 106 (1934), said: "No doubt the privilege [of personally confronting witnesses] may be lost by Page 397 U. S. 343 consent, or at times even by misconduct." [Footnote 2] Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. [Footnote 3] Once lost, the right to be present can, of course. be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous Page 397 U. S. 344 defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.ITrying a defendant for a crime while he sits bound and gagged before the judge and jury would, to an extent, comply with that part of the Sixth Amendment's purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury's feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant's primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint. It is in part because of these inherent disadvantages and limitations in this method of dealing with disorderly defendants that we decline to hold with the Court of Appeals that a defendant cannot under any possible circumstances be deprived of his right to be present at trial. However, in some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here.IIIn a footnote, the Court of Appeals suggested the possible availability of contempt of court as a remedy to make Allen behave in his robbery trial, and it is true Page 397 U. S. 345 that citing or threatening to cite a contumacious defendant for criminal contempt might, in itself, be sufficient to make a defendant stop interrupting a trial. If so, the problem would be solved easily, and the defendant could remain in the courtroom. Of course, if the defendant is determined to prevent any trial, then a court in attempting to try the defendant for contempt, is still confronted with the identical dilemma that the Illinois court faced in this case. And criminal contempt has obvious limitations as a sanction when the defendant is charged with a crime so serious that a very severe sentence such as death or life imprisonment is likely to be imposed. In such a case, the defendant might not be affected by a mere contempt sentence when he ultimately faces a far more serious sanction. Nevertheless, the contempt remedy should be borne in mind by a judge in the circumstances of this case.Another aspect of the contempt remedy is the judge's power, when exercised consistently with state and federal law, to imprison an unruly defendant such as Allen for civil contempt and discontinue the trial until such time as the defendant promises to behave himself. This procedure is consistent with the defendant's right to be present at trial, and yet it avoids the serious shortcomings of the use of shackles and gags. It must be recognized, however, that a defendant might conceivably, as a matter of calculated strategy, elect to spend a prolonged period in confinement for contempt in the hope that adverse witnesses might be unavailable after a lapse of time. A court must guard against allowing a defendant to profit from his own wrong in this way.IIIThe trial court in this case decided, under the circumstances, to remove the defendant from the courtroom and to continue his trial in his absence until and Page 397 U. S. 346 unless he promised to conduct himself in a manner befitting an American courtroom. As we said earlier, we find nothing unconstitutional about this procedure. Allen's behavior was clearly of such an extreme and aggravated nature as to justify either his removal from the courtroom or his total physical restraint. Prior to his removal, he was repeatedly warned by the trial judge that he would be removed from the courtroom if he persisted in his unruly conduct, and, as Judge Hastings observed in his dissenting opinion, the record demonstrates that Allen would not have been at all dissuaded by the trial judge's use of his criminal contempt powers. Allen was constantly informed that he could return to the trial when he would agree to conduct himself in an orderly manner. Under these circumstances, we hold that Allen lost his right guaranteed by the Sixth and Fourteenth Amendments to be present throughout his trial.IVIt is not pleasant to hold that the respondent Allen was properly banished from the court for a part of his own trial. But our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated, and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes. As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and religion. Being manned by humans, the courts are not perfect, and are bound to make some errors. But, if our courts are to remain what Page 397 U. S. 347 the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with the sort of scurrilous, abusive language and conduct paraded before the Illinois trial judge in this case. The record shows that the Illinois judge at all times conducted himself with that dignity, decorum, and patience that befit a judge. Even in holding that the trial judge had erred, the Court of Appeals praised his "commendable patience under severe provocation."We do not hold that removing this defendant from his own trial was the only way the Illinois judge could have constitutionally solved the problem he had. We do hold, however, that there is nothing whatever in this record to show that the judge did not act completely within his discretion. Deplorable as it is to remove a man from his own trial, even for a short time, we hold that the judge did not commit legal error in doing what he did.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtIllinois v. Allen, 397 U.S. 337 (1970)Illinois v. AllenNo. 606Argued February 24, 1970Decided March 31, 1970397 U.S. 337SyllabusRespondent, who was on trial for robbery, was removed from the courtroom for repeated disruptive behavior and the use of vile and abusive language directed at the trial judge, notwithstanding the judge's prior warning that removal would follow another outburst. Appointed counsel represented respondent during the period respondent was not allowed in the courtroom, principally the presentation of the State's case. Having given some assurances of good conduct, respondent was allowed to return to the courtroom while appointed counsel presented his defense. Respondent was convicted. Following the State Supreme Court's affirmance, respondent filed a petition for a writ of habeas corpus in federal court, contending that he had been deprived of his right under the Sixth and Fourteenth Amendments to confront the witnesses against him. The District Court declined to issue the writ. The Court of Appeals reversed, holding that a defendant's Sixth Amendment right to attend his own trial was so "absolute" that, regardless of how unruly his conduct, he could never be held to have lost that right so long as he insisted on it, as respondent had.Held:1. A defendant can lose his right to be present at trial if, following the judge's warning that he will be removed if his disruptive behavior continues, he nevertheless insists on conducting himself in such a disruptive manner that his trial cannot proceed if he remains in the courtroom. He can reclaim the right to be present as soon as he is willing to comport himself with decorum and respect. Pp. 397 U. S. 342-343.2. A trial judge confronted by a defendant's disruptive conduct can exercise discretion to meet the circumstances of the case, and though no single formula is best for all situations, there are at least three constitutionally permissible approaches for the court's handling of an obstreperous defendant: (1) bind and gag him as a last resort, thereby keeping him present; (2) cite him for criminal or civil contempt; or (3) remove him from the courtroom, while the trial continues, until he promises to conduct himself properly. Pp. 397 U. S. 343-346. Page 397 U. S. 3383. On the facts of this case, the trial judge did not abuse his discretion, respondent, through his disruptive behavior, having lost his right to confrontation under the Sixth and Fourteenth Amendments. Pp. 397 U. S. 345-347.413 F.2d 232, reversed.

1985_84-1636

JUSTICE WHITE delivered the opinion of the Court.The question presented in this case is whether a state appellate court provided an adequate remedy for a violation of the Double Jeopardy Clause of the Fifth Amendment by modifying a jeopardy-barred conviction to that of a lesser included offense that is not jeopardy-barred.IOn February 17, 1978, respondent James Michael Mathews and Steven Daugherty robbed the Alexandria Bank in Alexandria, Ohio. After an automobile chase, the police finally surrounded the two men when they stopped at a farmhouse. Soon thereafter, the police heard shots fired inside the house, Page 475 U. S. 239 and respondent then emerged from the home and surrendered to police. When the officers entered the house, they found Daugherty dead, shot once in the head and once in the chest. The police also found the money stolen from the bank hidden in the pantry.Once in custody, respondent gave a series of statements to law enforcement officials. In his first statement, given one hour after his surrender, respondent claimed that Daugherty and another man had forced him to aid in the bank robbery by threatening to kill both respondent and his girlfriend. Respondent denied shooting Daugherty. In the second statement, given the same day, respondent again denied shooting Daugherty, but admitted that no other man was involved with the robbery, and that he and Daugherty alone had planned and performed the crime.Two days later, respondent gave a third statement to police in which he again confessed to robbing the bank. Respondent also related that, after he and Daugherty arrived at the farmhouse, he had run back out to their van to retrieve the stolen money, and on his way back inside, he "heard a muffled shot from inside the house." App. 4. Upon investigation, respondent discovered that Daugherty had shot himself in the head. Respondent claimed that Daugherty was still conscious, and called to him by name. Ibid.The County Coroner initially ruled Daugherty's death to be a suicide. The Coroner made this determination, however, before receiving the results of an autopsy performed by a forensic pathologist. This report indicated that Daugherty had received two wounds from the same shotgun. The initial shot had been fired while Daugherty was standing, and entered the left side of his face. This shot fractured Daugherty's skull, and the mere force of the blast would have rendered him immediately unconscious. This wound was not fatal. The second shot was fired while Daugherty was lying on his back, and was fired directly into his heart from extremely close range. This shot was instantaneously fatal. Page 475 U. S. 240 As a result of this evidence, the Coroner issued a supplemental death certificate, listing "multiple gunshot wounds" as the cause of death. Record 295.Based on the Coroner's first opinion that Daugherty took his own life, the State did not charge respondent with Daugherty's death. Instead, he was indicted under Ohio Rev.Code Ann. § 2911.01 (Supp.1984) on aggravated robbery charges. [Footnote 1] Respondent pleaded guilty on May 17, and was sentenced to a term of incarceration of from 7 to 25 years.Two days after entering his guilty plea, respondent made the first of two statements in which he admitted having shot Daugherty. Respondent maintained that Daugherty initially had shot himself in the head, and that he was still alive when respondent discovered him after returning to the farmhouse with the stolen money. Acting on the theory that, if Daugherty were dead, respondent could claim that he was kidnaped and had not voluntarily robbed the bank, respondent "put [the gun] an inch or two from [Daugherty's] chest and pulled the trigger." App. 6. [Footnote 2] Respondent's second Page 475 U. S. 241 statement, given one week later, reiterated these same points. Id. at 8-16.On June 1, 1978, the State charged respondent with the aggravated murder of Steven Daugherty. Ohio Rev.Code § 2903.01 (1982) defines aggravated murder, in part, as "purposely caus[ing] the death of another . . . while fleeing immediately after committing . . . aggravated robbery." [Footnote 3] The aggravated robbery referred to in the indictment was the armed robbery of the Alexandria Bank to which respondent had previously pleaded guilty. The state trial court denied respondent's pretrial motion to dismiss the aggravated murder indictment as violative of the Double Jeopardy Clause of the Fifth Amendment.At the conclusion of the evidence, the trial judge instructed the jury as to the elements of the offense of aggravated murder. Page 475 U. S. 242 The judge also instructed the jury on the lesser included offense of murder as follows:"If you find that the State proved beyond a reasonable doubt all of the essential elements of aggravated murder, your verdict must be guilty of that crime, and in that event you will not consider any lesser offense.""But if you find that the State failed to prove the killing was done while the defendant was committing or fleeing immediately after committing aggravated robbery, but that the killing was nonetheless purposely done, you will proceed with your deliberations and decide whether the State has proved beyond a reasonable doubt the elements of the lesser crime or murder.""The crime of murder is distinguished from aggravated murder by the State's failure to prove that the killing was done while the defendant was committing or fleeing immediately after committing the crime of aggravated robbery."App. 21. The jury found respondent guilty of aggravated murder, and the court sentenced him to a term of life imprisonment.Respondent appealed his conviction, claiming that his trial for aggravated murder following his conviction for aggravated robbery violated the Double Jeopardy Clause. The Ohio Court of Appeals, Fifth Judicial District, affirmed his conviction, State v. Mathews, CA No. 2578 (Licking County, Aug. 9, 1979), and the Ohio Supreme Court declined to grant discretionary review. State v. Mathews, No. 79-1342 (Dec. 7, 1979). This Court granted respondent's petition for writ of certiorari, vacated the Court of Appeals' judgment, and remanded the case for further consideration in light of Illinois v. Vitale, 447 U. S. 410 (1980). Mathews v. Ohio, 448 U.S. 904 (1980).On remand, the Court of Appeals found that the Double Jeopardy Clause, as construed by this Court in Vitale, barred respondent;'s conviction for aggravated murder. State v. Mathews, No. 2578 (Licking County, Nov. 7, 1980). The Page 475 U. S. 243 court noted, however, that § 2903.01 defines aggravated murder as purposely causing the death of another while committing certain felonies, and that § 2903.02 defines murder simply as purposely causing the death of another. App. to Pet. for Cert. A-26. [Footnote 4] In respondent's trial, therefore,"if all the facts relating to the aggravated robbery of which he was convicted are excluded from consideration of the court and jury, the defendant was still charged with and convicted of murder in that he did purposely cause the death of Steven Daugherty on the date charged."Ibid. Accordingly, the Court of Appeals modified the conviction of aggravated murder to murder and reduced respondent's sentence to an indefinite term of from 15 years to life. Id. at A-27. [Footnote 5] Once again, the Ohio Supreme Court denied respondent's motion to appeal, and this Court denied his subsequent petition for certiorari review. Mathews v. Ohio, 451 U.S. 975 (1981).Respondent then sought a writ of habeas corpus in federal court. Applying the reasoning of the Ohio Court of Appeals, Page 475 U. S. 244 the District Court denied respondent's petition. Mathews v. Marshall, No. C-1-81-834 (WD Ohio, Apr.19, 1983).A divided panel of the Court of Appeals for the Sixth Circuit reversed. Mathews v. Marshall, 754 F.2d 158 (1985). Although refusing to hold that, in a case like this, a new trial on the nonbarred charge is always necessary, the court held that"a conviction obtained in violation of the double jeopardy clause cannot be modified if the defendant can show that there was a 'reasonable possibility that he was prejudiced' by the double jeopardy violation,"and that "an exceedingly small showing . . . would suffice.'" Id. at 162, quoting Graham v. Smith, 602 F.2d 1078, 1083 (CA2 1979). Apparently agreeing with respondent's assertion that "evidence was admitted in his trial for aggravated murder that would not have been admissible in a trial for murder," and stating that the jury "may have [been] prejudiced" by that evidence, the court concluded that respondent had established a sufficient possibility of prejudice to warrant a new trial on the murder charge. Mathews v. Marshall, supra, at 162. [Footnote 6]We granted certiorari, 471 U.S. 1134 (1985), and now reverse.IIAs an initial matter, we note several issues that are not in dispute. First, the State concedes that, under our cases, the prosecution of respondent for aggravated murder violated the Double Jeopardy Clause. Similarly, respondent concedes that the Clause would not prevent the State from trying him for murder. Next, all of the courts that have reviewed this case have agreed that, in finding respondent guilty of aggravated murder, the jury necessarily found that he "purposely cause[d] the death of another," which is the definition of murder under Ohio Rev.Code Ann. § 2903.02 (1982). See n 4, supra. Finally, this is not a "harmless Page 475 U. S. 245 error" case: allowing respondent to be tried for aggravated murder was error, and it was not in any sense harmless. With these considerations aside, the only issue before us is whether reducing respondent's conviction for aggravated murder to a conviction for murder is an adequate remedy for the double jeopardy violation.Respondent argues that, because the trial for aggravated murder should never have occurred, the Double Jeopardy Clause bars the State from taking advantage of the jeopardy-barred conviction by converting it into a conviction for the lesser crime of murder. He submits that a new trial must be granted whether or not there is a showing of prejudice.Respondent relies heavily on Price v. Georgia, 398 U. S. 323 (1970), but his reliance is misplaced. Price was tried for murder and convicted of the lesser included offense of manslaughter. After that conviction was reversed on appeal, there was another trial for murder and another conviction of the lesser crime of manslaughter. We held that the second conviction could not stand because Price had been impliedly acquitted of murder at the first trial, and could not be tried again on that charge. Id. at 398 U. S. 329. Nor could we"determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter, rather than to continue to debate his innocence."Id. at 398 U. S. 331.This holding in Price did not impose an automatic retrial rule whenever a defendant is tried for a jeopardy-barred crime and is convicted of a lesser included offense. Rather, the Court relied on the likelihood that the conviction for manslaughter had been influenced by the trial on the murder charge -- that the charge of the greater offense for which the jury was unwilling to convict also made the jury less willing to consider the defendant's innocence on the lesser charge. That basis for finding or presuming prejudice is not present here. The jury did not acquit Mathews of the greater offense of aggravated murder, but found him guilty of that charge and, a fortiori, of the lesser offense of murder as well. Page 475 U. S. 246Benton v. Maryland, 395 U. S. 784 (1969), also strongly indicates that, to prevail here, Mathews must show that trying him on the jeopardy-barred charge tainted his conviction for the lesser included offense. Benton was tried for both larceny and burglary. The jury acquitted him on the larceny count, but found him guilty of burglary. His conviction was later set aside because the jury had been improperly sworn. Benton again was tried for both burglary and larceny, and the second jury found him guilty of both offenses. The Maryland Court of Appeals held there had been no double jeopardy violation, but we disagreed, ruling that the Double Jeopardy Clause required setting aside the larceny conviction and sentence. Id. at 395 U. S. 796-797.Benton urged that his burglary conviction must also fall because certain evidence admitted at his second trial would not have been admitted had he been tried for burglary alone. This evidence, he claimed, prejudiced the jury and influenced their decision to convict him of burglary. We rejected that argument, saying both that "[i]t [was] not obvious on the face of the record that the burglary conviction was affected by the double jeopardy violation" and that we should not make this kind of evidentiary determination "unaided by prior consideration by the state courts." Id. at 395 U. S. 798 (footnote omitted). We thus vacated the judgment of the Maryland court, and remanded for further proceedings.Neither Benton nor Price suggests that a conviction for an unbarred offense is inherently tainted if tried with a jeopardy-barred charge. Instead, both cases suggest that a new trial is required only when the defendant shows a reliable inference of prejudice. We perceive no basis for departing from this approach here, for except that murder was a lesser offense included in the aggravated murder charge, rather than a separate charge, there is no difference between this case and Benton for double jeopardy purposes.Accordingly, we hold that, when a jeopardy-barred conviction is reduced to a conviction for a lesser included offense Page 475 U. S. 247 which is not jeopardy-barred, the burden shifts to the defendant to demonstrate a reasonable probability that he would not have been convicted of the nonjeopardy-barred offense absent the presence of the jeopardy-barred offense. In this situation, we believe that a "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Cf. Strickland v. Washington, 466 U. S. 668, 466 U. S. 695 (1984). After all, one of the purposes of the Double Jeopardy Clause is to prevent multiple prosecutions and to protect an individual from suffering the embarrassment, anxiety, and expense of another trial for the same offense, Green v. United States, 355 U. S. 184, 355 U. S. 187-188 (1957). In cases like this, therefore, where it is clear that the jury necessarily found that the defendant's conduct satisfies the elements of the lesser included offense, it would be incongruous always to order yet another trial as a means of curing a violation of the Double Jeopardy Clause.The Court of Appeals thus was correct in rejecting respondent's per se submission, but it was nevertheless too ready to find that he had made the necessary showing of prejudice. First, the court's "reasonable possibility" standard, which could be satisfied by "an exceedingly small showing," was not sufficiently demanding. To prevail in a case like this, the defendant must show that, but for the improper inclusion of the jeopardy-barred charge, the result of the proceeding probably would have been different.Second, the Court of Appeals appeared to agree with respondent that certain evidence admitted at his trial would not have been admitted in a separate trial for murder, but it did not expressly say so, nor did it refer to any Ohio authorities. Mathews v. Marshall, 754 F.2d at 162. The State submits that, under Ohio law, conduct of a defendant tending to show either "his motive or intent," or his "scheme, plan or system," is admissible, "notwithstanding that such proof may show or tend to show the commission of another crime by the defendant." Page 475 U. S. 248 Ohio Rev.Code Ann. § 2945.59 (1982). [Footnote 7] See generally State v. Moorehead, 24 Ohio St.2d 166, 169, 265 N.E.2d 551, 553 (1970). We normally accept a court of appeals' view of state law, but if this case turns on the admissibility of the challenged evidence in a separate trial for murder, the issue deserves a more thorough consideration by the lower court.Finally, the court's observation that the admission of questionable evidence "may have prejudiced the jury" falls far short of a considered conclusion that, if the evidence at issue was not before the jury in a separate trial for murder, there is a reasonable probability that respondent would not have been convicted.Because the Court of Appeals' legal and factual basis for ordering the writ of habeas corpus to issue was seriously flawed, its judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtMorris v. Mathews, 475 U.S. 237 (1986)Morris v. MathewsNo. 84-1636Argued November 4, 1985Decided February 26, 1986475 U.S. 237SyllabusRespondent and another man (Daugherty) robbed a bank in Ohio. After an automobile chase, the police surrounded the two men when they stopped at a farmhouse. Thereafter, the police heard shots fired inside the house, and respondent emerged from the house and surrendered. The police then entered the house and found Daugherty dead. Based on the Coroner's opinion that Daugherty had committed suicide, the State did not charge respondent with Daugherty's death, but with aggravated robbery. Respondent pleaded guilty, but two days later admitted having shot Daugherty. Respondent was then indicted for aggravated murder based on the bank robbery. The state trial court denied his pretrial motion to dismiss the indictment as violative of the Double Jeopardy Clause of the Fifth Amendment, and he was found guilty after a jury trial. Ultimately, the Ohio Court of Appeals, finding that the Double Jeopardy Clause barred respondent's conviction for aggravated murder, modified that conviction to that of the lesser included offense of murder. After the Ohio Supreme Court denied respondent's motion to appeal, he sought a writ of habeas corpus in Federal District Court, which denied the petition. The Federal Court of Appeals reversed. Apparently agreeing with respondent's assertion that evidence was admitted at his trial for aggravated murder that would have been inadmissible in a trial for murder, and stating that the jury "may have been prejudiced" by that evidence, the court held that respondent had established a "reasonable possibility" that he was prejudiced by the double jeopardy violation sufficient to warrant a new trial on the murder charge.Held: Reducing respondent's concededly jeopardy-barred conviction for aggravated murder to a conviction for murder that concededly was not jeopardy-barred was an adequate remedy for the double jeopardy violation. Pp. 475 U. S. 244-248.(a) When a jeopardy-barred conviction is reduced to a conviction for a lesser included offense that is not jeopardy-barred, the burden shifts to the defendant to demonstrate a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that he would not have been convicted of the nonjeopardy-barred offense absent the presence of the jeopardy-barred offense. Where it is clear that the jury necessarily Page 475 U. S. 238 found that the defendant's conduct satisfies the elements of the lesser included offense, it would be incongruous to order another trial as a means of curing the double jeopardy violation. Pp. 475 U. S. 244-247.(b) Here, the Federal Court of Appeals' legal and factual basis for ordering the writ of habeas corpus was seriously flawed. Its "reasonable possibility" standard was not sufficiently demanding, it did not expressly say that it agreed with respondent that certain evidence admitted at his trial would not have been admitted in a separate trial for murder, nor did it refer to any Ohio authorities, and its observation that the admission of such evidence "may have prejudiced the jury" falls far short of a considered conclusion that, if the evidence at issue was not before the jury in a separate trial for murder, there was a reasonable probability that respondent would not have been convicted. Pp. 475 U. S. 247-248.754 F.2d 158, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, in which POWELL, J., joined, post, p. 475 U. S. 248. BRENNAN, J., post, p. 475 U. S. 257, and MARSHAL, J., post, p. 475 U. S. 258, filed dissenting opinions.

2001_00-1737

152 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONSyllabusargument that the ordinance is nonetheless valid because it serves the two additional interests of protecting residents' privacy and the prevention of crime is unpersuasive. As to the former, an unchallenged ordinance section authorizing residents to post "No Solicitation" signs, coupled with their unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for unwilling listeners. As to the latter, it seems unlikely that the lack of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance, and, in any event, there is no evidence in the record of a special crime problem related to door-to-door solicitation. Pp. 164-169.240 F.3d 553, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion, in which SOUTER and GINSBURG, JJ., joined, post, p. 169. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 171. REHNQUIST, C. J., filed a dissenting opinion, post, p. 172.Paul D. Polidoro argued the cause for petitioners. With him on the briefs were Philip Brumley, Richard D. Moake, and Donald T. Ridley.Abraham Cantor argued the cause and filed a brief for respondents.David M. Gormley, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae in support of respondents. With him on the brief were Betty D. Montgomery, Attorney General of Ohio, Elise W Porter and Kirk A. Lindsey, Assistant Solicitors, and the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Steve Carter of Indiana, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas Reilly of Massachusetts, Frankie Sue Del Papa of Nevada, W A. Drew Edmondson of Oklahoma, and Hoke MacMillan of Wyoming. **Briefs of amici curiae urging reversal were filed for Commonwealth of the Northern Mariana Islands by Herbert D. SoU, Attorney General,153JUSTICE STEVENS delivered the opinion of the Court. Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violates the First Amendment. Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills.IPetitioner Watchtower Bible and Tract Society of New York, Inc., coordinates the preaching activities of Jehovah's Witnesses throughout the United States and publishes Bibles and religious periodicals that are widely distributed. Petitioner Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc., supervises the activities of approximately 59 members in a part of Ohio that includes the Village of Stratton (Village). Petitioners offer religious literature without cost to anyone interested in reading it. They allege that they do not solicit contributions or orders for the sale of merchandise or services, but they do accept donations.Petitioners brought this action against the Village and its mayor in the United States District Court for the SouthernDavid Collins, and Karen M. Klaver; for the Center for Individual Freedom by Eric S. Jaffe; for the Church of Jesus Christ of Latter-day Saints by Von G. Keetch; for the Electronic Privacy Information Center et al. by Marc Rotenberg, Steven R. Shapiro, and Raymond Vasvari; and for ReaICampaignReform.org, Inc., et al. by William J. Olson, John S. Miles, and Herbert W Titus.Briefs of amici curiae urging affirmance were filed for the Ohio Municipal League by Barry M. Byron and John E. Gotherman; and for the International Municipal Lawyers Association et al. by Richard Ruda and JamesBriefs of amici curiae were filed for the Brennan Center for Justice by Burt Neuborne, Deborah Goldberg, and Richard L. Hasen; and for Independent Baptist Churches of America by Thomas W King III.154154 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONDistrict of Ohio, seeking an injunction against the enforcement of several sections of Ordinance No. 1998-5 regulating uninvited peddling and solicitation on private property in the Village. Petitioners' complaint alleged that the ordinance violated several constitutional rights, including the free exercise of religion, free speech, and the freedom of the press. App. 10a-44a. The District Court conducted a bench trial at which evidence of the administration of the ordinance and its effect on petitioners was introduced.Section 116.01 prohibits "canvassers" and others from "going in and upon" private residential property for the purpose of promoting any "cause" without first having obtained a permit pursuant to § 116.03.1 That section provides that any canvasser who intends to go on private property to promote a cause must obtain a "Solicitation Permit" from the office of the mayor; there is no charge for the permit, and apparently one is issued routinely after an applicant1 Section 116.01 provides: "The practice of going in and upon private property and/or the private residences of Village residents in the Village by canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise or services, not having been invited to do so by the owners or occupants of such private property or residences, and not having first obtained a permit pursuant to Section 116.03 of this Chapter, for the purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause, or for the purpose of soliciting orders for the sale of goods, wares, merchandise or services, is hereby declared to be a nuisance and is prohibited." App. to Brief for Respondents 2a. The Village has interpreted the term "canvassers" to include Jehovah's Witnesses and the term "cause" to include their ministry. The ordinance does not appear to require a permit for a surveyor since such an individual would not be entering private property "for the purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause, or for the purpose of soliciting orders for the sale of goods, wares, merchandise or services." Thus, contrary to the assumption of the dissent in its heavy reliance on the example from Dartmouth, post, at 172-173, 177, 179 (opinion of REHNQUIST, C. J.), the Village's ordinance would have done nothing to prevent that tragic crime.155fills out a fairly detailed "Solicitor's Registration Form." 2 The canvasser is then authorized to go upon premises that he listed on the registration form, but he must carry the permit upon his person and exhibit it whenever requested to do so by a police officer or by a resident.3 The ordinance2 Section 116.03 provides:"(a) No canvasser, solicitor, peddler, hawker, itinerant merchant or transient vendor of merchandise or services who is described in Section 116.01 of this Chapter and who intends to go in or upon private property or a private residence in the Village for any of the purposes described in Section 116.01, shall go in or upon such private property or residence without first registering in the office of the Mayor and obtaining a Solicitation Permit."(b) The registration required by subsection (a) hereof shall be made by filing a Solicitor's Registration Form, at the office of the Mayor, on a form furnished for such purpose. The Form shall be completed by the Registrant and it shall then contain the following information:"(1) The name and home address of the Registrant and Registrant's residence for five years next preceding the date of registration;"(2) A brief description of the nature and purpose of the business, promotion, solicitation, organization, cause, and/or the goods or services offered;"(3) The name and address of the employer or affiliated organization, with credentials from the employer or organization showing the exact relationship and authority of the Applicant;"(4) The length of time for which the privilege to canvass or solicit is desired;"(5) The specific address of each private residence at which the Registrant intends to engage in the conduct described in Section 116.01 of this Chapter, and,"(6) Such other information concerning the Registrant and its business or purpose as may be reasonably necessary to accurately describe the nature of the privilege desired." Brief for Respondents 3a-4a.3 Section 116.04 provides: "Each Registrant who complies with Section 116.03(b) shall be furnished a Solicitation Permit. The permit shall indicate that the applicant has registered as required by Section 116.03 of this Chapter. No permittee shall go in or upon any premises not listed on the Registrant's Solicitor's Registration Form."Each person shall at all times, while exercising the privilege in the Village incident to such permit, carry upon his person his permit and the156156 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONsets forth grounds for the denial or revocation of a permit,4 but the record before us does not show that any application has been denied or that any permit has been revoked. Petitioners did not apply for a permit.A section of the ordinance that petitioners do not challenge establishes a procedure by which a resident may prohibit solicitation even by holders of permits. If the resident files a "No Solicitation Registration Form" with the mayor, and also posts a "No Solicitation" sign on his property, no uninvited canvassers may enter his property, unless they are specifically authorized to do so in the "No Solicitation Registration Form" itself.5 Only 32 of the Village's 278 residentssame shall be exhibited by such person whenever he is requested to do so by any police officer or by any person who is solicited." Id., at 4a.4 Section 116.06 provides: "Permits described in Section 116.04 of this Chapter may be denied or revoked by the Mayor for anyone or more of the following reasons:"(a) Incomplete information provided by the Registrant in the Solicitor's Registration Form."(b) Fraud or misrepresentation contained in the Solicitor's Registration Form."(c) Fraud, misrepresentation or false statements made in the course of conducting the activity."(d) Violation of any of the provisions of this chapter or of other Codified Ordinances or of any State or Federal Law."(e) Conducting canvassing, soliciting or business in such a manner as to constitute a trespass upon private property."(f) The permittee ceases to possess the qualifications required in this chapter for the original registration." Id., at 5a.5 Section 116.07 provides, in part: "(a) Notwithstanding the provisions of any other Section of this Chapter 116, any person, firm or corporation who is the owner or lawful occupant of private property within the territorial limits of the Village of Stratton, Ohio, may prohibit the practice of going in or upon the private property and/or the private residence of such owner or occupant, by uninvited canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors, by registering its property in accordance with Subdivision (b) of this Section and by posting upon each such registered property a sign which reads 'No Solicitation' in a location157filed such forms. Each of the forms in the record contains a list of 19 suggested exceptions; 6 on one form, a resident checked 17 exceptions, thereby excluding only "Jehovah's Witnesses" and "Political Candidates" from the list of invited canvassers. Although Jehovah's Witnesses do not consider themselves to be "solicitors" because they make no charge for their literature or their teaching, leaders of the church testified at trial that they would honor "no solicitation" signs in the Village. They also explained at trial that they did not apply for a permit because they derive their authority towhich is reasonably visible to persons who intend to enter upon such property."(b) The registration authorized by Subsection (a) hereof shall be made by filing a 'No Solicitation Registration Form', at the office of the Mayor, on a form furnished for such purpose. The form shall be completed by the property owner or occupant and it shall then contain the following information: .... " Id., at 6a.6 The suggested exceptions listed on the form are:1. Scouting Organizations2. Camp Fire Girls3. Children's Sports Organizations4. Children's Solicitation for Supporting School Activities5. Volunteer Fire Dept.6. Jehovah's Witnesses7. Political Candidates8. Beauty Products Sales People9. Watkins Sales10. Christmas Carolers11. Parcel Delivery12. Little League13. Trick or Treaters during Halloween Season14. Police15. Campaigners16. Newspaper Carriers17. Persons Mfiliated with Stratton Church18. Food Salesmen19. Salespersons. App. 229a.Apparently the ordinance would prohibit each of these 19 categories from canvassing unless expressly exempted.158158 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONpreach from Scripture.7 "For us to seek a permit from a municipality to preach we feel would almost be an insult to God." App. 321a.Petitioners introduced some evidence that the ordinance was the product of the mayor's hostility to their ministry, but the District Court credited the mayor's testimony that it had been designed to protect the privacy rights of the Village residents, specifically to protect them "from 'flim flam' con artists who prey on small town populations." 61 F. Supp. 2d 734, 736 (SD Ohio 1999). Nevertheless, the court concluded that the terms of the ordinance applied to the activities of petitioners as well as to "business or political canvassers," id., at 737, 738.The District Court upheld most provisions of the ordinance as valid, content-neutral regulations that did not infringe on petitioners' First Amendment rights. The court did, however, require the Village to accept narrowing constructions of three provisions. First, the court viewed the requirement in § 116.03(b)(5) that the applicant must list the specific address of each residence to be visited as potentially invalid, but cured by the Village's agreement to attach to the form a list of willing residents. Id., at 737. Second, it held that petitioners could comply with § 116.03(b)(6) by merely stating their purpose as "the Jehovah's Witness ministry." Id., at 738. And third, it held that § 116.05, which limited canvassing to the hours before 5 p.m., was invalid on its face and should be replaced with a provision referring to "reasonable hours of the day." Id., at 739. As so modified, the court held the ordinance constitutionally valid as applied to petitioners and dismissed the case.7 Specifically, from the Book of "Matthew chapter 28, verses 19 and 20, which we take as our commission to preach .... So Jesus, by example, instituted a house-to-house search for people so as to preach the good news to them. And that's the activity that Jehovah's Witnesses engage in, even as Christ's apostles did after his resurrection to heaven." Id., at 313a-314a.159The Court of Appeals for the Sixth Circuit affirmed. 240 F.3d 553 (2001). It held that the ordinance was "content neutral and of general applicability and therefore subject to intermediate scrutiny." Id., at 560. It rejected petitioners' reliance on the discussion of laws affecting both the free exercise of religion and free speech in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990),8 because that "language was dicta and therefore not binding." 240 F. 3d, at 561. It also rejected petitioners' argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that we recognized in McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 (1995), reasoning that "the very act of going door-to-door requires the canvassers to reveal a portion of their identities." 240 F. 3d, at 563. The Court of Appeals concluded that the interests promoted by the Village-"protecting its residents from fraud and undue annoyance"-as well as the harm that it seeks to prevent-"criminals posing as canvassers in order to defraud its residents"-though "by no means overwhelming," were sufficient to justify the regulation. Id., at 565566. The court distinguished earlier cases protecting the Jehovah's Witnesses ministry because those cases either in-8 "The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U. S., at 304-307 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school)." 494 U. S., at 881 (footnote omitted).160160 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONvolved a flat prohibition on the dissemination of ideas, e. g., Martin v. City of Struthers, 319 U. S. 141 (1943), or an ordinance that left the issuance of a permit to the discretion of a municipal officer, see, e. g., Cantwell v. Connecticut, 310 U. S. 296, 302 (1940).In dissent, Judge Gilman expressed the opinion that by subjecting noncommercial solicitation to the permit requirements, the ordinance significantly restricted a substantial quantity of speech unrelated to the Village's interest in eliminating fraud and unwanted annoyance. In his view, the Village "failed to demonstrate either the reality of the harm or the efficacy of the restriction." 240 F. 3d, at 572.We granted certiorari to decide the following question:"Does a municipal ordinance that requires one to obtain a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one's name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse 7" 534 U. S. 971 (2001); Pet. for Cert. i.9IIFor over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering.lO It is more than historical accident that most of these cases involved First Amendment challenges brought by Jehovah's Witnesses, because door-to-door canvassing is mandated by their religion. As we noted in Murdock v. Pennsylvania,9 In their briefs and at oral argument, the parties debated a factual issue embedded in the question presented, namely, whether the permit contains the speaker's name. We need not resolve this factual dispute in order to answer whether the ordinance's registration requirement abridges so much protected speech that it is invalid on its face.10 Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Martin v. City of Struthers, 319 U. S. 141 (1943); Murdock v. Pennsylvania, 319 U. S. 105 (1943); Jamison v. Texas, 318 U. S. 413 (1943); Cantwell v. Connecticut, 310 U. S. 296 (1940); Schneider v. State (Town of Irvington), 308 U. S. 147 (1939); Lovell v. City of Griffin, 303 U. S. 444 (1938).161319 U. S. 105, 108 (1943), the Jehovah's Witnesses "claim to follow the example of Paul, teaching 'publickly, and from house to house.' Acts 20:20. They take literally the mandate of the Scriptures, 'Go ye into all the world, and preach the gospel to every creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God." Moreover, because they lack significant financial resources, the ability of the Witnesses to proselytize is seriously diminished by regulations that burden their efforts to canvass door-to-door.Although our past cases involving Jehovah's Witnesses, most of which were decided shortly before and during World War II, do not directly control the question we confront today, they provide both a historical and analytical backdrop for consideration of petitioners' First Amendment claim that the breadth of the Village's ordinance offends the First Amendment.ll Those cases involved petty offenses that raised constitutional questions of the most serious magnitude-questions that implicated the free exercise of religion, the freedom of speech, and the freedom of the press. From these decisions, several themes emerge that guide our consideration of the ordinance at issue here.First, the cases emphasize the value of the speech involved. For example, in Murdock v. Pennsylvania, the Court noted that "hand distribution of religious tracts is an age-old form of missionary evangelism-as old as the history of printing presses. It has been a potent force in various religious movements down through the years .... This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion.11 The question presented is similar to one raised, but not decided, in Hynes. The ordinance that we held invalid in that case on vagueness grounds required advance notice to the police before "casually soliciting the votes of neighbors." 425 U. S., at 620, n. 4.162162 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONI t also has the same claim as the others to the guarantees of freedom of speech and freedom of the press." Id., at 108-109.In addition, the cases discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas. In Schneider v. State (Town of Irvington), 308 U. S. 147 (1939), the petitioner was a Jehovah's Witness who had been convicted of canvassing without a permit based on evidence that she had gone from house to house offering to leave books or booklets. Writing for the Court, Justice Roberts stated that "pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees." Id., at 164 (emphasis added).Despite the emphasis on the important role that door-todoor canvassing and pamphleteering has played in our constitutional tradition of free and open discussion, these early cases also recognized the interests a town may have in some form of regulation, particularly when the solicitation of money is involved. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that an ordinance requiring Jehovah's Witnesses to obtain a license before soliciting door to door was invalid because the issuance of the license depended on the exercise of discretion by a city official. Our opinion recognized that "a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds163for any purpose, to establish his identity and his authority to act for the cause which he purports to represent." Id., at 306. Similarly, in Martin v. City of Struthers, the Court recognized crime prevention as a legitimate interest served by these ordinances and noted that "burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later." 319 U. S., at 144. Despite recognition of these interests as legitimate, our precedent is clear that there must be a balance between these interests and the effect of the regulations on First Amendment rights. We "must 'be astute to examine the effect of the challenged legislation' and must 'weigh the circumstances and ... appraise the substantiality of the reasons advanced in support of the regulation.'" Ibid. (quoting Schneider, 308 U. S., at 161).Finally, the cases demonstrate that efforts of the Jehovah's Witnesses to resist speech regulation have not been a struggle for their rights alone. In Martin, after cataloging the many groups that rely extensively upon this method of communication, the Court summarized that "[d]oor to door distribution of circulars is essential to the poorly financed causes of little people." 319 U. S., at 144-146.That the Jehovah's Witnesses are not the only "little people" who face the risk of silencing by regulations like the Village's is exemplified by our cases involving nonreligious speech. See, e. g., Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Thomas v. Collins, 323 U. S. 516 (1945). In Thomas, the issue was whether a labor leader could be required to obtain a permit before delivering a speech to prospective union members. After reviewing the Jehovah's Witnesses cases discussed above, the Court observed:164164 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTON"As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly ...."If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment." Id., at 539-540.Although these World War II-era cases provide guidance for our consideration of the question presented, they do not answer one preliminary issue that the parties adamantly dispute. That is, what standard of review ought we use in assessing the constitutionality of this ordinance. We find it unnecessary, however, to resolve that dispute because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding it.IIIThe Village argues that three interests are served by its ordinance: the prevention of fraud, the prevention of crime,165and the protection of residents' privacy. We have no difficulty concluding, in light of our precedent, that these are important interests that the Village may seek to safeguard through some form of regulation of solicitation activity. We must also look, however, to the amount of speech covered by the ordinance and whether there is an appropriate balance between the affected speech and the governmental interests that the ordinance purports to serve.The text of the Village's ordinance prohibits "canvassers" from going on private property for the purpose of explaining or promoting any "cause," unless they receive a permit and the residents visited have not opted for a "no solicitation" sign. Had this provision been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village's interest in protecting the privacy of its residents and preventing fraud. Yet, even though the Village has explained that the ordinance was adopted to serve those interests, it has never contended that it should be so narrowly interpreted. To the contrary, the Village's administration of its ordinance unquestionably demonstrates that the provisions apply to a significant number of noncommercial "canvassers" promoting a wide variety of "causes." Indeed, on the "No Solicitation Forms" provided to the residents, the canvassers include "Camp Fire Girls," "Jehovah's Witnesses," "Political Candidates," "Trick or Treaters during Halloween Season," and "Persons Affiliated with Stratton Church." The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to "residents casually soliciting the votes of neighbors," 12 or ringing doorbells to enlist support for employing a more efficient garbage collector.The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive-not only to12 Hynes, 425 U. S., at 620, n. 4.166166 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONthe values protected by the First Amendment, but to the very notion of a free society-that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious effect of such a permit requirement.First, as our cases involving distribution of unsigned handbills demonstrate,13 there are a significant number of persons who support causes anonymously.14 "The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible." McIntyre v. Ohio Elections Comm'n, 514 U. S., at 341-342. The requirement that a canvasser must be identified in a permit application filed in the mayor's office and available for public inspection necessarily results in a surrender of that anonymity. Although it is true, as the Court of Appeals suggested, see 240 F. 3d, at 563, that persons who are known to the resident reveal their allegiance to a group or cause when they present themselves at the front door to advocate an issue or to deliver a handbill, the Court of Appeals erred in concluding that the ordinance does not implicate anonymity interests. The Sixth Circuit's reasoning is undermined by13 Talley v. California, 362 U. S. 60 (1960); McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 (1995).14 Although the Jehovah's Witnesses do not themselves object to a loss of anonymity, they bring this facial challenge in part on the basis of overbreadth. We may, therefore, consider the impact of this ordinance on the free speech rights of individuals who are deterred from speaking because the registration provision would require them to forgo their right to speak anonymously. See Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).167our decision in Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182 (1999). The badge requirement that we invalidated in Buckley applied to petition circulators seeking signatures in face-to-face interactions. The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators' interest in maintaining their anonymity. In the Village, strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes. Such preclusion may well be justified in some situations-for example, by the special state interest in protecting the integrity of a ballot-initiative process, see ibid., or by the interest in preventing fraudulent commercial transactions. The Village ordinance, however, sweeps more broadly, covering unpopular causes unrelated to commercial transactions or to any special interest in protecting the electoral process.Second, requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding religious or patriotic views. As our World War II-era cases dramatically demonstrate, there are a significant number of persons whose religious scruples will prevent them from applying for such a license. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official.Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance. A person who made a decision on a holiday or a weekend to take an active part in a political campaign could not begin to pass out handbills until after he or she obtained the required permit. Even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor's permission.168168 WATCHTOWER BIBLE & TRACT SOC. OF N. Y., INC. v.VILLAGE OF STRATTONIn this respect, the regulation is analogous to the circulation licensing tax the Court invalidated in Grosjean v. American Press Co., 297 U. S. 233 (1936). In Grosjean, while discussing the history of the Free Press Clause of the First Amendment, the Court stated that "'[t]he evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.'" Id., at 249-250 (quoting 2 T. Cooley, Constitutional Limitations 886 (8th ed. 1927)); see also Lovell v. City of Griffin, 303 U. S. 444 (1938).The breadth and unprecedented nature of this regulation does not alone render the ordinance invalid. Also central to our conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village's stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village, however, argues that the ordinance is nonetheless valid because it serves the two additional interests of protecting the privacy of the resident and the prevention of crime.With respect to the former, it seems clear that § 107 of the ordinance, which provides for the posting of "No Solicitation" signs and which is not challenged in this case, coupled with the resident's unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for the unwilling listener. Schaumburg, 444 U. S., at 639 ("[T]he provision permitting homeowners to bar solicitors from their property by posting [no solicitation] signs ... suggest[s] the availability of less intrusive and more effective measures to protect privacy"). The annoyance caused by an169uninvited knock on the front door is the same whether or not the visitor is armed with a permit.With respect to the latter, it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance. They might, for example, ask for directions or permission to use the telephone, or pose as surveyers or census takers. See n. 1, supra. Or they might register under a false name with impunity because the ordinance contains no provision for verifying an applicant's identity or organizational credentials. Moreover, the Village did not assert an interest in crime prevention below, and there is an absence of any evidence of a special crime problem related to doorto-door solicitation in the record before us.The rhetoric used in the World War II-era opinions that repeatedly saved petitioners' coreligionists from petty prosecutions reflected the Court's evaluation of the First Amendment freedoms that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2001SyllabusWATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK, INC., ET AL. v. VILLAGEOF STRATTON ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 00-1737. Argued February 26, 2002-Decided June 17,2002Respondent Village of Stratton (Village) promulgated an ordinance that, inter alia, prohibits "canvassers" from "going in and upon" private residential property to promote any "cause" without first obtaining a permit from the mayor's office by completing and signing a registration form. Petitioners, a society and a congregation of Jehovah's Witnesses that publish and distribute religious materials, brought this action for injunctive relief, alleging that the ordinance violates their First Amendment rights to the free exercise of religion, free speech, and freedom of the press. The District Court upheld most provisions of the ordinance as valid, content-neutral regulations, although it did require the Village to accept narrowing constructions of several provisions. The Sixth Circuit affirmed. Among its rulings, that court held that the ordinance was content neutral and of general applicability and therefore subject to intermediate scrutiny; rejected petitioners' argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that was recognized in McIntyre v. Ohio Elections Comm'n, 514 U. S. 334; concluded that the Village's interests in protecting its residents from fraud and undue annoyance and its desire to prevent criminals from posing as canvassers in order to defraud its residents were sufficient bases on which to justify the regulation; and distinguished this Court's earlier cases protecting the Jehovah's Witnesses ministry.Held: The ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills. Pp. 160-169.(a) For over 50 years, this Court has invalidated on First Amendment grounds restrictions on door-to-door canvassing and pamphleteering by Jehovah's Witnesses. See, e. g., Murdock v. Pennsylvania, 319 U. S. 105. Although those cases do not directly control the question at issue, they yield several themes that guide the Court. Among other things,151those cases emphasize that the hand distribution of religious tracts is ages old and has the same claim as more orthodox practices to the guarantees of freedom of religion, speech, and press, e. g., id., at 109; discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas, e. g., Schneider v. State (Town of Irvington), 308 U. S. 147, 164, but recognize the legitimate interests a town may have in some form of regulation, particularly when the solicitation of money is involved, e. g., Cantwell v. Connecticut, 310 U. S. 296, 306, or the prevention of burglary is a legitimate concern, Martin v. City of Struthers, 319 U. S. 141, 144; make clear that there must be a balance between such interests and the effect of the regulations on First Amendment rights, e. g., ibid.; and demonstrate that the Jehovah's Witnesses have not struggled for their rights alone, but for those many who are poorly financed and rely extensively upon this method of communication, see, e. g., id., at 144-146, including nonreligious groups and individuals, see, e. g., Thomas v. Collins, 323 U. S. 516,539-540. Pp. 160-164.(b) The Court need not resolve the parties' dispute as to what standard of review to use here because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Sixth Circuit erred in upholding it. There is no doubt that the interests the ordinance assertedly serves-the prevention of fraud and crime and the protection of residents' privacy-are important and that the Village may seek to safeguard them through some form of regulation of solicitation activity. However, the amount of speech covered by the ordinance raises serious concerns. Had its provisions been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village's interest in protecting its residents' privacy and preventing fraud. Yet, the Village's administration of its ordinance unquestionably demonstrates that it applies to a significant number of noncommercial "canvassers" promoting a wide variety of "causes." The pernicious effect of the permit requirement is illustrated by, e. g., the requirement that a canvasser be identified in a permit application filed in the mayor's office and made available for public inspection, which necessarily results in a surrender of the anonymity this Court has protected. Also central to the Court's conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village's stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village's152Full Text of Opinion

1982_81-1687

JUSTICE STEVENS delivered the opinion of the Court.Petitioners manufacture and sell home videotape recorders. Respondents own the copyrights on some of the television Page 464 U. S. 420 programs that are broadcast on the public airwaves. Some members of the general public use videotape recorders sold by petitioners to record some of these broadcasts, as well as a large number of other broadcasts. The question presented is whether the sale of petitioners' copying equipment to the general public violates any of the rights conferred upon respondents by the Copyright Act.Respondents commenced this copyright infringement action against petitioners in the United States District Court for the Central District of California in 1976. Respondents alleged that some individuals had used Betamax videotape recorders (VTR's) to record some of respondents' copyrighted works which had been exhibited on commercially sponsored television, and contended that these individuals had thereby infringed respondents' copyrights. Respondents further maintained that petitioners were liable for the copyright infringement allegedly committed by Betamax consumers because of petitioners' marketing of the Betamax VTR's. [Footnote 1] Respondents sought no relief against any Betamax consumer. Instead, they sought money damages and an equitable accounting of profits from petitioners, as well as an injunction against the manufacture and marketing of Betamax VTR's.After a lengthy trial, the District Court denied respondents all the relief they sought and entered judgment for petitioners. 480 F. Supp. 429 (1979). The United States Court of Appeals for the Ninth Circuit reversed the District Court's judgment on respondents' copyright claim, holding petitioners liable for contributory infringement and ordering the District Court to fashion appropriate relief. 659 F.2d 963 Page 464 U. S. 421 (1981). We granted certiorari, 457 U.S. 1116 (1982); since we had not completed our study of the case last Term, we ordered reargument, 463 U. S. 1226 (1983). We now reverse.An explanation of our rejection of respondents' unprecedented attempt to impose copyright liability upon the distributors of copying equipment requires a quite detailed recitation of the findings of the District Court. In summary, those findings reveal that the average member of the public uses a VTR principally to record a program he cannot view as it is being televised, and then to watch it once at a later time. This practice, known as "time-shifting," enlarges the television viewing audience. For that reason, a significant amount of television programming may be used in this manner without objection from the owners of the copyrights on the programs. For the same reason, even the two respondents in this case, who do assert objections to time-shifting in this litigation, were unable to prove that the practice has impaired the commercial value of their copyrights or has created any likelihood of future harm. Given these findings, there is no basis in the Copyright Act upon which respondents can hold petitioners liable for distributing VTR's to the general public. The Court of Appeals' holding that respondents are entitled to enjoin the distribution of VTR's, to collect royalties on the sale of such equipment, or to obtain other relief, if affirmed, would enlarge the scope of respondents' statutory monopolies to encompass control over an article of commerce that is not the subject of copyright protection. Such an expansion of the copyright privilege is beyond the limits of the grants authorized by Congress.IThe two respondents in this action, Universal City Studios, Inc., and Walt Disney Productions, produce and hold the copyrights on a substantial number of motion pictures and other audiovisual works. In the current marketplace, they can exploit their rights in these works in a number of ways: Page 464 U. S. 422 by authorizing theatrical exhibitions, by licensing limited showings on cable and network television, by selling syndication rights for repeated airings on local television stations, and by marketing programs on prerecorded videotapes or videodiscs. Some works are suitable for exploitation through all of these avenues, while the market for other works is more limited.Petitioner Sony manufactures millions of Betamax videotape recorders and markets these devices through numerous retail establishments, some of which are also petitioners in this action. [Footnote 2] Sony's Betamax VTR is a mechanism consisting of three basic components: (1) a tuner, which receives electromagnetic signals transmitted over the television band of the public airwaves and separates them into audio and visual signals; (2) a recorder, which records such signals on a magnetic tape; and (3) an adapter, which converts the audio and visual signals on the tape into a composite signal that can be received by a television set.Several capabilities of the machine are noteworthy. The separate tuner in the Betamax enables it to record a broadcast off one station while the television set is tuned to another channel, permitting the viewer, for example, to watch two simultaneous news broadcasts by watching one "live" and recording the other for later viewing. Tapes may be reused, and programs that have been recorded may be erased either before or after viewing. A timer in the Betamax can be used to activate and deactivate the equipment at predetermined Page 464 U. S. 423 times, enabling an intended viewer to record programs that are transmitted when he or she is not at home. Thus a person may watch a program at home in the evening even though it was broadcast while the viewer was at work during the afternoon. The Betamax is also equipped with a pause button and a fast-forward control. The pause button, when depressed, deactivates the recorder until it is released, thus enabling a viewer to omit a commercial advertisement from the recording, provided, of course, that the viewer is present when the program is recorded. The fast-forward control enables the viewer of a previously recorded program to run the tape rapidly when a segment he or she does not desire to see is being played back on the television screen.The respondents and Sony both conducted surveys of the way the Betamax machine was used by several hundred owners during a sample period in 1978. Although there were some differences in the surveys, they both showed that the primary use of the machine for most owners was "time-shifting" -- the practice of recording a program to view it once at a later time, and thereafter erasing it. Time-shifting enables viewers to see programs they otherwise would miss because they are not at home, are occupied with other tasks, or are viewing a program on another station at the time of a broadcast that they desire to watch. Both surveys also showed, however, that a substantial number of interviewees had accumulated libraries of tapes. [Footnote 3] Sony's survey indicated Page 464 U. S. 424 that over 80% of the interviewees watched at least as much regular television as they had before owning a Betamax. [Footnote 4] Respondents offered no evidence of decreased television viewing by Betamax owners. [Footnote 5]Sony introduced considerable evidence describing television programs that could be copied without objection from any copyright holder, with special emphasis on sports, religious, and educational programming. For example, their survey indicated that 7.3% of all Betamax use is to record sports events, and representatives of professional baseball, football, basketball, and hockey testified that they had no objection to the recording of their televised events for home use. [Footnote 6] Page 464 U. S. 425Respondents offered opinion evidence concerning the future impact of the unrestricted sale of VTR's on the commercial value of their copyrights. The District Court found, however, that they had failed to prove any likelihood of future harm from the use of VTR's for time-shifting. 480 F. Supp. at 469.The District Court's DecisionThe lengthy trial of the case in the District Court concerned the private, home use of VTR's for recording programs broadcast on the public airwaves without charge to the viewer. [Footnote 7] No issue concerning the transfer of tapes to other persons, the use of home-recorded tapes for public performances, or the copying of programs transmitted on pay or cable television systems was raised. See id. at 432-433, 442.The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works, and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, an interest that"is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 102."Id. at 454. [Footnote 8] Even when an entire copyrighted work was recorded, Page 464 U. S. 426 the District Court regarded the copying as fair use "because there is no accompanying reduction in the market for plaintiff's original work.'" Ibid. .As an independent ground of decision, the District Court also concluded that Sony could not be held liable as a contributory infringer even if the home use of a VTR was considered an infringing use. The District Court noted that Sony had no direct involvement with any Betamax purchasers who recorded copyrighted works off the air. Sony's advertising was silent on the subject of possible copyright infringement, but its instruction booklet contained the following statement:"Television programs, films, videotapes and other materials may be copyrighted. Unauthorized recording of such material may be contrary to the provisions of the United States copyright laws."Id. at 436.The District Court assumed that Sony had constructive knowledge of the probability that the Betamax machine would be used to record copyrighted programs, but found that Sony merely sold a "product capable of a variety of uses, some of them allegedly infringing." Id. at 461. It reasoned:"Selling a staple article of commerce -- e.g., a typewriter, a recorder, a camera, a photocopying machine -- technically contributes to any infringing use subsequently made thereof, but this kind of 'contribution,' if deemed sufficient as a basis for liability, would expand the theory beyond precedent, and arguably beyond judicial management."". . . Commerce would indeed be hampered if manufacturers of staple items were held liable as contributory infringers whenever they 'constructively' knew that some purchasers on some occasions would use their product Page 464 U. S. 427 for a purpose which a court later deemed, as a matter of first impression, to be an infringement."Ibid.Finally, the District Court discussed the respondents' prayer for injunctive relief, noting that they had asked for an injunction either preventing the future sale of Betamax machines or requiring that the machines be rendered incapable of recording copyrighted works off the air. The court stated that it had"found no case in which the manufacturers, distributors, retailers and advertisers of the instrument enabling the infringement were sued by the copyright holders,"and that the request for relief in this case "is unique." Id. at 465.It concluded that an injunction was wholly inappropriate because any possible harm to respondents was outweighed by the fact that"the Betamax could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording."Id. at 468.The Court of Appeals' DecisionThe Court of Appeals reversed the District Court's judgment on respondents' copyright claim. It did not set aside any of the District Court's findings of fact. Rather, it concluded as a matter of law that the home use of a VTR was not a fair use, because it was not a "productive use." [Footnote 9] It therefore held that it was unnecessary for plaintiffs to prove any harm to the potential market for the copyrighted works, but then observed that it seemed clear that the cumulative effect of mass reproduction made possible by VTR's would tend to diminish the potential market for respondents' works. 659 F.2d at 974. Page 464 U. S. 428On the issue of contributory infringement, the Court of Appeals first rejected the analogy to staple articles of commerce such as tape recorders or photocopying machines. It noted that such machines "may have substantial benefit for some purposes" and do not "even remotely raise copyright problems." Id. at 975. VTR's, however, are sold "for the primary purpose of reproducing television programming," and "[v]irtually all" such programming is copyrighted material. Ibid. The Court of Appeals concluded, therefore, that VTR's were not suitable for any substantial noninfringing use even if some copyright owners elect not to enforce their rights.The Court of Appeals also rejected the District Court's reliance on Sony's lack of knowledge that home use constituted infringement. Assuming that the statutory provisions defining the remedies for infringement applied also to the nonstatutory tort of contributory infringement, the court stated that a defendant's good faith would merely reduce his damages liability, but would not excuse the infringing conduct. It held that Sony was chargeable with knowledge of the homeowner's infringing activity because the reproduction of copyrighted materials was either "the most conspicuous use" or "the major use" of the Betamax product. Ibid.On the matter of relief, the Court of Appeals concluded that "statutory damages may be appropriate" and that the District Court should reconsider its determination that an injunction would not be an appropriate remedy; and, referring to "the analogous photocopying area," suggested that a continuing royalty pursuant to a judicially created compulsory license may very well be an acceptable resolution of the relief issue. Id. at 976.IIArticle I, § 8, of the Constitution provides:"The Congress shall have Power . . . To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. "Page 464 U. S. 429The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired."The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U. S. 123, 286 U. S. 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress,""The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.""It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius."United States v. Paramount Pictures, Inc., 334 U. S. 131, 334 U. S. 158 (1948).As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the public appropriate access to their work product. Because this task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand, our patent and copyright statutes have been amended repeatedly. [Footnote 10] Page 464 U. S. 430From its beginning, the law of copyright has developed in response to significant changes in technology. [Footnote 11] Indeed, it was the invention of a new form of copying equipment -- the printing press -- that gave rise to the original need for copyright protection. [Footnote 12] Repeatedly, as new developments have Page 464 U. S. 431 occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary. Thus, long before the enactment of the Copyright Act of 1909, 35 Stat. 1075, it was settled that the protection given to copyrights is wholly statutory. Wheaton v. Peters, 8 Pet. 591, 33 U. S. 661-662 (1834). The remedies for infringement "are only those prescribed by Congress." Thompson v. Hubbard, 131 U. S. 123, 131 U. S. 151 (1889).The judiciary's reluctance to expand the protections afforded by the copyright without explicit legislative guidance is a recurring theme. See, e.g., Teleprompter Corp. v. Columbia Broadcasting System, Inc., 415 U. S. 394 (1974); Fortnightly Corp. v. United Artists Television, Inc., 392 U. S. 390 (1968); White-Smith Music Publishing Co. v. Apollo Co., 209 U. S. 1 (1908); Williams & Wilkins Co. v. United States, 203 Ct.Cl. 74, 487 F.2d 1345 (1973), aff'd by an equally divided Court, 420 U. S. 376 (1975). Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart's exposition of the correct approach to ambiguities in the law of copyright:"The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: creative work is to be Page 464 U. S. 432 encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 'The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, 'lie in the general benefits derived by the public from the labors of authors.' Fox Film Corp. v. Doyal, 286 U. S. 123, 286 U. S. 127. See Kendall v. Winsor, 21 How. 322, 62 U. S. 327-328; Grant v. Raymond, 6 Pet. 218, 31 U. S. 241-242. When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose."Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 422 U. S. 156 (1975) (footnotes omitted).Copyright protection "subsists . . . in original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a) (1982 ed.). This protection has never accorded the copyright owner complete control over all possible uses of his work. [Footnote 13] Rather, the Copyright Act grants the Page 464 U. S. 433 copyright holder "exclusive" rights to use and to authorize the use of his work in five qualified ways, including reproduction of the copyrighted work in copies. § 106. [Footnote 14] All reproductions of the work, however, are not within the exclusive domain of the copyright owner; some are in the public domain. Any individual may reproduce a copyrighted work for a "fair use"; the copyright owner does not possess the exclusive right to such a use. Compare § 106 with § 107."Anyone who violates any of the exclusive rights of the copyright owner," that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, "is an infringer of the copyright." § 501(a). Conversely, anyone who is authorized by the copyright owner to use the copyrighted work in a way specified in the statute or who makes a fair use of the work is not an infringer of the copyright with respect to such use.The Copyright Act provides the owner of a copyright with a potent arsenal of remedies against an infringer of his work, including an injunction to restrain the infringer from violating Page 464 U. S. 434 his rights, the impoundment and destruction of all reproductions of his work made in violation of his rights, a recovery of his actual damages and any additional profits realized by the infringer or a recovery of statutory damages, and attorney's fees. §§ 502-505. [Footnote 15]The two respondents in this case do not seek relief against the Betamax users who have allegedly infringed their copyrights. Moreover, this is not a class action on behalf of all copyright owners who license their works for television broadcast, and respondents have no right to invoke whatever rights other copyright holders may have to bring infringement actions based on Betamax copying of their works. [Footnote 16] As was made clear by their own evidence, the copying of the respondents' programs represents a small portion of the total use of VTR's. It is, however, the taping of respondents' own copyrighted programs that provides them with standing to charge Sony with contributory infringement. To prevail, they have the burden of proving that users of the Betamax have infringed their copyrights, and that Sony should be held responsible for that infringement.IIIThe Copyright Act does not expressly render anyone liable for infringement committed by another. In contrast, the Page 464 U. S. 435 Patent Act expressly brands anyone who "actively induces infringement of a patent" as an infringer, 35 U.S.C. § 271(b), and further imposes liability on certain individuals labeled "contributory" infringers, § 271(c). The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity. [Footnote 17] For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.Such circumstances were plainly present in Kalem Co. v. Harper Brothers, 222 U. S. 55 (1911), the copyright decision of this Court on which respondents place their principal reliance. In Kalem, the Court held that the producer of an unauthorized film dramatization of the copyrighted book Ben Hur was liable for his sale of the motion picture to jobbers, who in turn arranged for the commercial exhibition of the film. Justice Holmes, writing for the Court, explained:"The defendant not only expected but invoked by advertisement the use of its films for dramatic reproduction Page 464 U. S. 436 of the story. That was the most conspicuous purpose for which they could be used, and the one for which especially they were made. If the defendant did not contribute to the infringement it is impossible to do so except by taking part in the final act. It is liable on principles recognized in every part of the law."Id. at 222 U. S. 62-63.The use for which the item sold in Kalem had been "especially" made was, of course, to display the performance that had already been recorded upon it. The producer had personally appropriated the copyright owner's protected work and, as the owner of the tangible medium of expression upon which the protected work was recorded, authorized that use by his sale of the film to jobbers. But that use of the film was not his to authorize: the copyright owner possessed the exclusive right to authorize public performances of his work. Further, the producer personally advertised the unauthorized public performances, dispelling any possible doubt as to the use of the film which he had authorized.Respondents argue that Kalem stands for the proposition that supplying the "means" to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement. This argument rests on a gross generalization that cannot withstand scrutiny. The producer in Kalem did not merely provide the "means" to accomplish an infringing activity; the producer supplied the work itself, albeit in a new medium of expression. Sony in the instant case does not supply Betamax consumers with respondents' works; respondents do. Sony supplies a piece of equipment that is generally capable of copying the entire range of programs that may be televised: those that are uncopyrighted, those that are copyrighted but may be copied without objection from the copyright holder, and those that the copyright holder would prefer not to have copied. The Betamax can be used to Page 464 U. S. 437 make authorized or unauthorized uses of copyrighted works, but the range of its potential use is much broader than the particular infringing use of the film Ben Hur involved in Kalem. Kalem does not support respondents' novel theory of liability.Justice Holmes stated that the producer had "contributed" to the infringement of the copyright, and the label "contributory infringement" has been applied in a number of lower court copyright cases involving an ongoing relationship between the direct infringer and the contributory infringer at the time the infringing conduct occurred. In such cases, as in other situations in which the imposition of vicarious liability is manifestly just, the "contributory" infringer was in a position to control the use of copyrighted works by others, and had authorized the use without permission from the copyright owner. [Footnote 18] This case, however, plainly does not fall Page 464 U. S. 438 in that category. The only contact between Sony and the users of the Betamax that is disclosed by this record occurred at the moment of sale. The District Court expressly found that"no employee of Sony, Sonam or DDBI had either direct involvement with the allegedly infringing activity or direct contact with purchasers of Betamax who recorded copyrighted works off the air."480 F. Supp. at 460. And it further found that"there was no evidence that any of the copies made by Griffiths or the other individual witnesses in this suit were influenced or encouraged by [Sony's] advertisements."Ibid. Page 464 U. S. 439If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material. There is no precedent in the law of copyright for the imposition of vicarious liability on such a theory. The closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law. [Footnote 19] Page 464 U. S. 440In the Patent Act, both the concept of infringement and the concept of contributory infringement are expressly defined by statute. [Footnote 20] The prohibition against contributory infringement is confined to the knowing sale of a component especially made for use in connection with a particular patent. There is no suggestion in the statute that one patentee may object to the sale of a product that might be used in connection with other patents. Moreover, the Act expressly provides that the sale of a "staple article or commodity of commerce suitable for substantial noninfringing use" is not contributory infringement. 35 U.S.C. § 271(c).When a charge of contributory infringement is predicated entirely on the sale of an article of commerce that is used by the purchaser to infringe a patent, the public interest in access to that article of commerce is necessarily implicated. A Page 464 U. S. 441 finding of contributory infringement does not, of course, remove the article from the market altogether; it does, however, give the patentee effective control over the sale of that item. Indeed, a finding of contributory infringement is normally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee. [Footnote 21]For that reason, in contributory infringement cases arising under the patent laws, the Court has always recognized the critical importance of not allowing the patentee to extend his monopoly beyond the limits of his specific grant. These cases deny the patentee any right to control the distribution of unpatented articles unless they are "unsuited for any commercial noninfringing use." Dawson Chemical Co. v. Rohm & Hass Co., 448 U. S. 176, 448 U. S. 198 (1980). Unless a commodity "has no use except through practice of the patented method," id. at 448 U. S. 199, the patentee has no right to claim that its distribution constitutes contributory infringement. "To form the basis for contributory infringement, the item must almost be uniquely suited as a component of the patented invention." P. Rosenberg, Patent Law Fundamentals § 17.02[2] (2d ed.1982)."[A] sale of an article which though adapted to an infringing use is also adapted to other and lawful uses, is not enough to make the seller a contributory infringer. Such a rule would block the wheels of commerce."Henry v. A. B. Dick Co., 224 U. S. 1, 224 U. S. 48 (1912), overruled on other grounds, Page 464 U. S. 442 Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 243 U. S. 517 (1917).We recognize there are substantial differences between the patent and copyright laws. But in both areas, the contributory infringement doctrine is grounded on the recognition that adequate protection of a monopoly may require the courts to look beyond actual duplication of a device or publication to the products or activities that make such duplication possible. The staple article of commerce doctrine must strike a balance between a copyright holder's legitimate demand for effective -- not merely symbolic -- protection of the statutory monopoly, and the rights of others freely to engage in substantially unrelated areas of commerce. Accordingly, the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses.IVThe question is thus whether the Betamax is capable of commercially significant noninfringing uses. In order to resolve that question, we need not explore all the different potential uses of the machine and determine whether or not they would constitute infringement. Rather, we need only consider whether, on the basis of the facts as found by the District Court, a significant number of them would be noninfringing. Moreover, in order to resolve this case, we need not give precise content to the question of how much use is commercially significant. For one potential use of the Betamax plainly satisfies this standard, however it is understood: private, noncommercial time-shifting in the home. It does so both (A) because respondents have no right to prevent other copyright holders from authorizing it for their programs, and (B) because the District Court's factual findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use. Page 464 U. S. 443A. Authorized Time-ShiftingEach of the respondents owns a large inventory of valuable copyrights, but, in the total spectrum of television programming, their combined market share is small. The exact percentage is not specified, but it is well below 10%. [Footnote 22] If they were to prevail, the outcome of this litigation would have a significant impact on both the producers and the viewers of the remaining 90% of the programming in the Nation. No doubt, many other producers share respondents' concern about the possible consequences of unrestricted copying. Nevertheless the findings of the District Court make it clear that time-shifting may enlarge the total viewing audience, and that many producers are willing to allow private time-shifting to continue, at least for an experimental time period. [Footnote 23]The District Court found:"Even if it were deemed that home-use recording of copyrighted material constituted infringement, the Betamax could still legally be used to record noncopyrighted material or material whose owners consented to the copying. An injunction would deprive the public of the ability to use the Betamax for this noninfringing off-the-air recording. "Page 464 U. S. 444"Defendants introduced considerable testimony at trial about the potential for such copying of sports, religious, educational and other programming. This included testimony from representatives of the Offices of the Commissioners of the National Football, Basketball, Baseball and Hockey Leagues and Associations, the Executive Director of National Religious Broadcasters, and various educational communications agencies. Plaintiffs attack the weight of the testimony offered, and also contend that an injunction is warranted because infringing uses outweigh noninfringing uses.""Whatever the future percentage of legal versus illegal home-use recording might be, an injunction which seeks to deprive the public of the very tool or article of commerce capable of some noninfringing use would be an extremely harsh remedy, as well as one unprecedented in copyright law."480 F. Supp. at 468.Although the District Court made these statements in the context of considering the propriety of injunctive relief, the statements constitute a finding that the evidence concerning "sports, religious, educational and other programming" was sufficient to establish a significant quantity of broadcasting whose copying is now authorized, and a significant potential for future authorized copying. That finding is amply supported by the record. In addition to the religious and sports officials identified explicitly by the District Court, [Footnote 24] two items in the record deserve specific mention. Page 464 U. S. 445First is the testimony of John Kenaston, the station manager of Channel 58, an educational station in Los Angeles affiliated with the Public Broadcasting Service. He explained and authenticated the station's published guide to its programs. [Footnote 25] For each program, the guide tells whether unlimited home taping is authorized, home taping is authorized subject to certain restrictions (such as erasure within seven days), or home taping is not authorized at all. The Spring, 1978, edition of the guide described 107 programs. Sixty-two of those programs or 58% authorize some home taping. Twenty-one of them, or almost 20%, authorize unrestricted home taping. [Footnote 26]Second is the testimony of Fred Rogers, president of the corporation that produces and owns the copyright on Mister Rogers' Neighborhood. The program is carried by more public television stations than any other program. Its audience numbers over 3,000,000 families a day. He testified that he had absolutely no objection to home taping for noncommercial use, and expressed the opinion that it is a real service to families to be able to record children's programs and to show them at appropriate times. [Footnote 27] Page 464 U. S. 446If there are millions of owners of VTR's who make copies of televised sports events, religious broadcasts, and educational programs such as Mister Rogers' Neighborhood, and if the proprietors of those programs welcome the practice, the business of supplying the equipment that makes such copying feasible should not be stifled simply because the equipment is used by some individuals to make unauthorized reproductions of respondents' works. The respondents do not represent a class composed of all copyright holders. Yet a finding of contributory infringement would inevitably frustrate the interests of broadcasters in reaching the portion of their audience that is available only through time-shifting.Of course, the fact that other copyright holders may welcome the practice of time-shifting does not mean that respondents should be deemed to have granted a license to copy their programs. Third-party conduct would be wholly irrelevant in an action for direct infringement of respondents' copyrights. But in an action for contributory infringement against the seller of copying equipment, the copyright holder may not prevail unless the relief that he seeks affects only his programs, or unless he speaks for virtually all copyright holders with an interest in the outcome. In this case, the record makes it perfectly clear that there are many important producers of national and local television programs who find nothing objectionable about the enlargement in the size of the television audience that results from the practice of time-shifting for private home use. [Footnote 28] The seller of the equipment that expands those producers' audiences cannot be a contributory Page 464 U. S. 447 infringer if, as is true in this case, it has had no direct involvement with any infringing activity.B. Unauthorized Time-ShiftingEven unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute. Twentieth Century Music Corp. v. Aiken, 422 U.S. at 422 U. S. 154-155. Moreover, the definition of exclusive rights in § 106 of the present Act is prefaced by the words "subject to sections 107 through 118." Those sections describe a variety of uses of copyrighted material that "are not infringements of copyright" "notwithstanding the provisions of section 106." The most pertinent in this case is § 107, the legislative endorsement of the doctrine of "fair use." [Footnote 29] Page 464 U. S. 448That section identifies various factors [Footnote 30] that enable a court to apply an "equitable rule of reason" analysis to particular claims of infringement. [Footnote 31] Although not conclusive, the first Page 464 U. S. 449 factor requires that "the commercial or nonprofit character of an activity" be weighed in any fair use decision. [Footnote 32] If the Betamax were used to make copies for a commercial or profitmaking purpose, such use would presumptively be unfair. The contrary presumption is appropriate here, however, because the District Court's findings plainly establish that time-shifting for private home use must be characterized as a noncommercial, nonprofit activity. Moreover, when one considers the nature of a televised copyrighted audiovisual work, see 17 U.S.C. § 107(2) (1982 ed.), and that time-shifting merely enables a viewer to see such a work which he had been invited to witness in its entirety free of charge, the fact that Page 464 U. S. 450 the entire work is reproduced, see § 107(3), does not have its ordinary effect of militating against a finding of fair use. [Footnote 33]This is not, however, the end of the inquiry, because Congress has also directed us to consider "the effect of the use upon the potential market for or value of the copyrighted work." § 107(4). The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder's ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. The prohibition of such noncommercial uses would Page 464 U. S. 451 merely inhibit access to ideas without any countervailing benefit. [Footnote 34]Thus, although every commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright, noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful or that, if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated.In this case, respondents failed to carry their burden with regard to home time-shifting. The District Court described respondents' evidence as follows:"Plaintiffs' experts admitted at several points in the trial that the time-shifting without librarying would result in 'not a great deal of harm.' Plaintiffs' greatest concern about time-shifting is with 'a point of important philosophy that transcends even commercial judgment.' They fear that, with any Betamax usage, 'invisible boundaries' are passed: 'the copyright owner has lost control over his program.'"480 F. Supp. at 467. Page 464 U. S. 452Later in its opinion, the District Court observed:"Most of plaintiffs' predictions of harm hinge on speculation about audience viewing patterns and ratings, a measurement system which Sidney Sheinberg, MCA's president, calls a 'black art' because of the significant level of imprecision involved in the calculations."Id. at 469. [Footnote 35]There was no need for the District Court to say much about past harm. "Plaintiffs have admitted that no actual harm to their copyrights has occurred to date." Id. at 451.On the question of potential future harm from time-shifting, the District Court offered a more detailed analysis of the evidence. It rejected respondents'"fear that persons 'watching' the original telecast of a program will not be measured in the live audience, and the ratings and revenues will decrease"by observing that current measurement technology allows the Betamax audience to be reflected. Id. at 466. [Footnote 36] It rejected respondents' prediction "that live television Page 464 U. S. 453 or movie audiences will decrease as more people watch Betamax tapes as an alternative," with the observation that "[t]here is no factual basis for [the underlying] assumption." Ibid. [Footnote 37] It rejected respondents' "fear that time-shifting will reduce audiences for telecast reruns," and concluded instead that "given current market practices, this should aid plaintiffs, rather than harm them." Ibid. [Footnote 38] And it declared that respondents' suggestion that "theater or film rental exhibition of a program will suffer because of time-shift recording of that program" "lacks merit." Id. at 467. [Footnote 39] Page 464 U. S. 454After completing that review, the District Court restated its overall conclusion several times, in several different ways. "Harm from time-shifting is speculative and, at best, minimal." Ibid."The audience benefits from the time-shifting capability have already been discussed. It is not implausible that benefits could also accrue to plaintiffs, broadcasters, and advertisers, as the Betamax makes it possible for more persons to view their broadcasts."Ibid. "No likelihood of harm was shown at trial, and plaintiffs admitted that there had been no actual harm to date." Id. at 468-469."Testimony at trial suggested that Betamax may require adjustments in marketing strategy, but it did not establish even a likelihood of harm."Id. at 469."Television production by plaintiffs today is more profitable than it has ever been, and, in five weeks of trial, there was no concrete evidence to suggest that the Betamax will change the studios' financial picture."Ibid.The District Court's conclusions are buttressed by the fact that to the extent time-shifting expands public access to freely broadcast television programs, it yields societal benefits. In Community Television of Southern California v. Gottfried, 459 U. S. 498, 459 U. S. 508, n. 12 (1983), we acknowledged the public interest in making television broadcasting more available. Concededly, that interest is not unlimited. But it supports an interpretation of the concept of "fair use" that requires the copyright holder to demonstrate some likelihood of harm before he may condemn a private act of time-shifting as a violation of federal law.When these factors are all weighed in the "equitable rule of reason" balance, we must conclude that this record amply Page 464 U. S. 455 supports the District Court's conclusion that home time-shifting is fair use. In light of the findings of the District Court regarding the state of the empirical data, it is clear that the Court of Appeals erred in holding that the statute as presently written bars such conduct. [Footnote 40] Page 464 U. S. 456In summary, the record and findings of the District Court lead us to two conclusions. First, Sony demonstrated a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcasts time-shifted by private viewers. And second, respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works. The Betamax is, therefore, capable of substantial noninfringing uses. Sony's sale of such equipment to the general public does not constitute contributory infringement of respondents' copyrights.V"The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress."Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 406 U. S. 530 (1972).One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written. Applying the copyright statute, as it now reads, to the facts as they have been developed in this case, the judgment of the Court of Appeals must be reversed.It is so ordered

U.S. Supreme CourtSony Corp. v. Universal City Studios, 464 U.S. 417 (1984)Sony Corporation of America v. Universal City Studios, Inc.No. 81-1687Argued January 18, 1983Reargued October 3, 1983Decided January 17, 1984464 U.S. 417SyllabusPetitioner Sony Corp. manufactures home videotape recorders (VTR's), and markets them through retail establishments, some of which are also petitioners. Respondents own the copyrights on some of the television programs that are broadcast on the public airwaves. Respondents brought an action against petitioners in Federal District Court, alleging that VTR consumers had been recording some of respondents' copyrighted works that had been exhibited on commercially sponsored television, and thereby infringed respondents' copyrights, and further that petitioners were liable for such copyright infringement because of their marketing of the VTR's. Respondents sought money damages, an equitable accounting of profits, and an injunction against the manufacture and marketing of the VTR's. The District Court denied respondents all relief, holding that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works, and did not constitute copyright infringement, and that petitioners could not be held liable as contributory infringers even if the home use of a VTR was considered an infringing use. The Court of Appeals reversed, holding petitioners liable for contributory infringement and ordering the District Court to fashion appropriate reliefHeld: The sale of the VTR's to the general public does not constitute contributory infringement of respondents' copyrights. Pp. 464 U. S. 428-456.(a) The protection given to copyrights is wholly statutory, and, in a case like this, in which Congress has not plainly marked the course to be followed by the judiciary, this Court must be circumspect in construing the scope of rights created by a statute that never contemplated such a calculus of interests. Any individual may reproduce a copyrighted work for a "fair use"; the copyright owner does not possess the exclusive right to such a use. Pp. 464 U. S. 428-434.(b) Kalem Co. v. Harper Brothers, 222 U. S. 55, does not support respondents' novel theory that supplying the "means" to accomplish an infringing activity and encouraging that activity through advertisement are sufficient to establish liability for copyright infringement. This case does not fall in the category of those in which it is manifestly just to Page 464 U. S. 418 impose vicarious liability because the "contributory" infringer was in a position to control the use of copyrighted works by others and had authorized the use without permission from the copyright owner. Here, the only contact between petitioners and the users of the VTR's occurred at the moment of sale. And there is no precedent for imposing vicarious liability on the theory that petitioners sold the VTR's with constructive knowledge that their customers might use the equipment to make unauthorized copies of copyrighted material. The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses. Pp. 464 U. S. 434-442.(c) The record and the District Court's findings show (1) that there is a significant likelihood that substantial numbers of copyright holders who license their works for broadcast on free television would not object to having their broadcast time-shifted by private viewers (i.e., recorded at a time when the VTR owner cannot view the broadcast so that it can be watched at a later time); and (2) that there is no likelihood that time-shifting would cause nonminimal harm to the potential market for, or the value of, respondents' copyrighted works. The VTR's are therefore capable of substantial noninfringing uses. Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs and because the District Court's findings reveal that even the unauthorized home time-shifting of respondents' programs is legitimate fair use. Pp. 442-456.659 F.2d 963, reversed.STEVENS, J., delivered the opinion of the Court in which BURGER, C.J., and BRENNAN, WHITE, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion in which MARSHALL, POWELL, and REHNQUIST, JJ., joined, post, p. 464 U. S. 457. Page 464 U. S. 419

1961_48

MR. JUSTICE BLACK delivered the opinion of the Court.The Federal Employers' Liability Act [Footnote 1] requires railroads to pay damages for personal injuries negligently inflicted upon their employees. The question this case presents is whether a railroad can escape this statutory liability by proving that an employee so injured has obtained his job by making false representations upon which the railroad rightfully relied in hiring him. Page 368 U. S. 36Petitioner brought this action in a West Virginia state court seeking damages for personal injuries from the respondent Norfolk & Western Railway Company, for which, as of the date of his alleged injuries, he had worked continuously except for a one-year interruption, for some six years. By special plea, the railroad set up as a defense the contention that petitioner was not "employed" by it within the meaning of the Act, [Footnote 2] and alleged in support of this defense: (1) that petitioner had made false and fraudulent representations in his application for employment with regard to his physical condition and other matters pertinent to his eligibility and capacity to serve as a railroad employee; (2) that petitioner would not have been hired but for these misrepresentations and the fact that they misled the railroad's hiring officials; and (3) that the very physical defects which had been fraudulently concealed from the railroad contributed to the injury upon which petitioner's action is based. Petitioner's demurrer to this plea was overruled, and evidence by both parties was presented to a jury. When all the evidence was in, however, the trial court directed the jury to bring in a verdict for the defendant on the ground that Page 368 U. S. 37 the undisputed evidence showed that the railroad had been deceived into hiring petitioner by petitioner's fraudulent misrepresentations as to his health and that these misrepresentations had a "direct causal connection" with the injuries upon which petitioner's action is based.Throughout the proceedings in the trial court, petitioner contended that no verdict should be directed against him on the grounds, among others: (1) that the allegations of fraud set up in the railroad's special plea were not sufficient in law to state a defense under the Act; and (2) that, even if the plea were sufficient in law, it rested upon questions of fact which should be submitted to the jury. On writ of error, the West Virginia Supreme Court of Appeals refused to overturn the trial court's action on either of these two grounds. Though we recognized that the case might possibly be disposed of on the second of these grounds, we granted certiorari to consider the important question raised by petitioner's first ground concerning the proper interpretation, scope and application of the Federal Employers' Liability Act. [Footnote 3]The railroad's primary contention, which was accepted as the principal basis of the action of the trial court, is that the sufficiency in law of its fraud defense was established by this Court's decision in Minneapolis, St. Paul & S. Ste. Marie R. Co. v. Rock. [Footnote 4] That case involved the railroad's liability for the negligent injury of one Joe Rock, who had obtained his employment by a whole series of fraudulent misrepresentations. Rock had originally applied for a job in his own name and had been rejected when his physical condition was found to be such that he did not meet the railroad's requirements. Several days later, he reapplied for the same job and, in order to conceal the fact that he had previously been refused employment because of his health, represented himself to be Page 368 U. S. 38 "John Rock," an apparently fictitious name he assumed for the purpose. He next arranged to have one Lenhart pose as "John Rock" and take the railroad's physical examination. When Lenhart passed the physical, the railroad hired Joe Rock on the mistaken belief that he was "John Rock" and that he had Lenhart's physical condition. On this unusual combination of facts, this Court held that Rock could not recover damages against the railroad under the Federal Employers' Liability Act, saying: "Right to recover may not justify or reasonably be rested on a foundation so abhorrent to public policy." [Footnote 5]The railroad here seeks to bring itself within the Rock decision by arguing that Rock established the principle that any false representation which deceives the employer and results in a railroad worker's getting a job he would not otherwise have obtained is sufficient to bar the worker from recovering the damages Congress has provided for railroad workers negligently injured in the honest performance of their duties under the Federal Employers' Liability Act. Although there is some language in the Rock opinion which might lend itself to such an interpretation, we think it plain that no such rule was ever intended. Certainly that was not the contemporaneous understanding of Rock among other courts, as is plainly shown by the statements of Judge Nordbye when that interpretation of Rock was urged upon him only one year later at the trial of Minneapolis, St. Paul & S. Ste. Marie R. Co. v. Borum:"It is inconceivable to this court that Justice Butler intended to hold in the Rock case that every fraudulent violation of the rules framed for maintaining a certain standard of safety and efficiency of the employees would render such employment void and deny the defrauding employee any rights under the act. It seems quite clear that any fraud practiced by the plaintiff Page 368 U. S. 39 herein at the most rendered the contract voidable. [Footnote 6]"And when the Borum case came here, this Court, although urged to do so, itself refused to extend Rock in any such manner. [Footnote 7] The decision in Borum, considered in the light of the facts there involved, reflects clearly the contemporaneously understood limitations upon the Rock approach and the reluctance of this Court to extend the vague notions of public policy upon which that case rested to new factual situations.Borum, who was forty-nine at the time, wanted a job with a railroad that had, in the interest of promoting safety and efficiency in its operations, adopted a rule against hiring men over forty-five. Knowing this, he told the railroad employment officials that he was only thirty-eight, and, by this deliberate misrepresentation, obtained a job he would not otherwise have been given. Although Borum took the railroad's required physical examination, it apparently knew nothing of Borum's deception about his age until some seven years later, after he had lost both of his legs in an accident caused by the railroad's negligence and had filed suit against it for damages under the Federal Employers' Liability Act. Just before trial of this case, a last-minute investigation turned up Borum's real age, and the railroad sought to rely upon this fact to escape its liability under the Act. This Court unanimously upheld the Minnesota courts' determination that Borum had a right to recover despite his admittedly fraudulent and material misrepresentation Page 368 U. S. 40 of his age, brushing aside the railroad's attempted reliance upon Rock on the ground"that the facts found, when taken in connection with those shown by uncontradicted evidence, are not sufficient to bring this case within the rule applied in Minneapolis, St. P. & S.S.M. Ry. Co. v. Rock, supra, or the reasons upon which that decision rests. [Footnote 8]"In support of this conclusion, the Court in Borum pointed to a number of factual differences with the Rock case. The first mentioned, and apparently the most important of these in the mind of the Court was the fact that Rock, unlike Borum, had obtained his employment as an "impostor" by presenting himself to the railroad under an assumed named after his initial application in his own name had been rejected. Secondly, the Court pointed to the fact that Rock, again unlike Borum, had never been approved as physically fit for employment by the railroad's examining surgeon. Finally, the Court made reference to the fact that, under the railroad's own rules, it could not have discharged Borum for his misrepresentation because more than thirty days had passed since his original provisional employment, and the rules made this action final unless changed within that period. But no one of these facts, as the Court recognized, was sufficient to justify a distinction between Rock and Borum based upon an acceptable reconciling principle. In both cases, the worker had been guilty of making a material, false and fraudulent representation without which he would not have been employed. And if such a method of obtaining employment was, as intimated in Rock, to be considered so "abhorrent to public policy" that the normal distinction between "void" and "voidable" contracts was to be ignored, [Footnote 9] the mere existence of a railroad Page 368 U. S. 41 rule limiting the time for discharge without cause could not, of course, have overridden that policy. The Court therefore, as shown above, based its decision upholding Borum's right to recover upon all of the factual distinctions between his case and that of Rock, and held merely that Rock would not be extended to cover these new facts.This factual distinction of Rock, though sufficient to show the nonexistence of any broad principle that material misrepresentations relied upon by a railroad in hiring bar recovery under the Act, proved completely unsatisfactory to establish affirmatively an intelligible guide by which lower courts could decide what misrepresentations were so "abhorrent to public policy" as to compel a forfeiture of the worker's right to recover under the Federal Employers' Liability Act. And, since Borum, the lower federal courts and state courts have been forced to struggle with the baffling problem of how much and what kinds of fraud are sufficiently abhorrent without further guidance from this Court. Consequently, in almost all of such cases, the courts have been faced with a dilemma occasioned by the fact that both parties have been able to argue with considerable force that a decision in their favor is absolutely required by one or the other of the two decisions on the question by this Court. The result in a vast majority of these courts has been an acceptance of Rock as laying down a narrow public policy holding to which Borum establishes the need for courts to make broad exceptions in appropriate cases. And, perhaps not so surprisingly, most cases have been deemed appropriate ones for avoiding the harsh consequences of Rock, with the Page 368 U. S. 42 courts creating new exceptions to allow recovery whenever a case did not fit within one already established. [Footnote 10] Occasionally, as here, a worker has been held to be barred from recovery, but these few cases seem entirely Page 368 U. S. 43 indistinguishable on any significant grounds from the many in which other courts have found or created exceptions. [Footnote 11]In this situation, it seems necessary for this Court, in the interest of the orderly administration of justice, to take a fresh look at this question in an effort to supply Page 368 U. S. 44 an intelligible guide for future decisions. Having done so, we conclude that the Rock case, properly interpreted, lays down no general rule at all. In that case, the Court was confronted with an action by a railroad worker who, though undeniably an employee of the railroad in any practical or legal sense, had obtained his employment in what was deemed to be such an outrageous manner that it seemed to the Court at that time to be "abhorrent to public policy" to permit him to recover under the Act Congress had passed. [Footnote 12] There is no occasion for us here to reconsider the correctness of that decision on the basis of the peculiar combination of facts involved in that case, for no such facts are involved here and, indeed, they may never arise again. We do conclude, however, that Rock must be limited to its precise facts. In the face of the legislative policy embodied in the Federal Employers' Liability Act that a railroad should pay damages to its workers and their families for personal injuries inflicted by the railroad's negligence upon those who perform its duties, considerations of public policy of the general kind Page 368 U. S. 45 relied upon by the Court in Rock cannot be permitted to encroach further upon the special policy expressed by Congress in the Act. To facilitate this congressional policy, the terms "employed" and "employee" as used in the Act must, in all cases not involving the precise kind of fraud involved in Rock, be interpreted according to their ordinary meaning, and the status of employees who become such through other kinds of fraud, although possibly subject to termination through rescission of the contract of employment, must be recognized for purposes of suits under the Act. And this conclusion is not affected by the fact that an employee's misrepresentation may have, as is urged here, contributed to the injury or even to the accident upon which his action is based. This argument, which seems to have gained its popularity primarily as an exception by which the application of Rock could be avoided, [Footnote 13] suggests that a railroad worker may be partially "employed" under the Act -- that he may be able to recover for some injuries negligently inflicted upon him by the railroad and not be able to recover for others so inflicted, depending upon the circumstances of each particular injury. Even if this suggestion recommended itself to reason -- which, other than as an exception to the broad Page 368 U. S. 46 principle mistakenly drawn from Rock, it plainly does not -- we would not be free to accept it. For it finds no support at all in the history, purpose or language of the Act, which provides recovery for any "injury or death resulting in whole or in part from the negligence of" the railroad, [Footnote 14] and there is no prior authority of this Court which requires or even permits us to disregard or impair this controlling declaration of public policy. [Footnote 15]The petitioner in this case was an employee under the Act, and is therefore entitled to recover if he suffered injuries due to the railroad's negligence. It was therefore error to direct a verdict against him on the railroad's plea of fraud. The case is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtStill v. Norfolk & Western Ry. Co., 368 U.S. 35 (1961)Still v. Norfolk & Western Railway Co.No. 48Argued October 19, 1961Decided November 13, 1961368 U.S. 35Syllabus1. Under the Federal Employers' Liability Act, a railroad cannot escape liability for personal injuries negligently inflicted upon an employee by proving that he had obtained his job by making false representations upon which the railroad rightfully relied in hiring him. Pp. 368 U. S. 35-46.2. Minneapolis, St. P. & S. Ste. M. R. Co. v. Rock, 279 U. S. 410, must be limited to its precise facts, and, in each case not involving the precise kind of fraud there involved, the terms "employed" and "employee," as used in the Act, must be interpreted according to their ordinary meaning, even though the employee's misrepresentations may have contributed to the injury or even to the accident upon which his claim is based. Pp. 368 U. S. 37-46.Reversed and remanded.

1978_77-1439

MR. JUSTICE BRENNAN delivered the opinion of the Court.The question presented for decision is whether Okla.Stat., Tit. 29, § 4-115(B) (Supp. 1978), violates the Commerce Clause, Art. I, § 8, cl. 3, of the United States Constitution, insofar as it provides that "[n]o person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state. . . ." [Footnote 1] Page 441 U. S. 324Appellant William Hughes holds a Texas license to operate a commercial minnow business near Wichita Falls, Tex. An Oklahoma game ranger arrested him on a charge of violating § 4-115(B) by transporting from Oklahoma to Wichita Falls a load of natural minnows purchased from a minnow dealer licensed to do business in Oklahoma. Hughes' defense that § 4-115(B) was unconstitutional because it was repugnant to the Commerce Clause was rejected, and he was convicted and fined. The Oklahoma Court of Criminal Appeals affirmed, stating:"The United States Supreme Court has held on numerous occasions that the wild animals and fish within a state's border are, so far as capable of ownership, owned by the state in its sovereign capacity for the common Page 441 U. S. 325 benefit of all its people. Because of such ownership, and in the exercise of its police power, the state may regulate and control the taking, subsequent use and property rights that may be acquired therein. Lacoste v. Department of Conservation, 263 U. S. 545 . . . ; Geer v. State of Connecticut, 161 U. S. 519. . . . As stated in Lacoste, supra, protection of the wildlife of a state is peculiarly within the police power of the state, an the state has great latitude in determining what means are appropriate for its protection."". . . Oklahoma law does not prohibit commercial minnow hatcheries within her borders from selling stock minnows to anyone, resident or nonresident, and minnows purchased therefrom may be freely exported. However, the law served to protect against the depletion of minnows in Oklahoma's natural streams through commercial exportation. No person is allowed to export natural minnows for sale outside of Oklahoma. Such a prohibition is not repugnant to the commerce clause. . . ."572 P.2d 573, 575 (1977). We noted probable jurisdiction, 439 U.S. 815 (1978). We reverse. Geer v. Connecticut, 161 U. S. 519 (1896), on which the Court of Criminal Appeals relied, is overruled. In that circumstance, § 4-115(B) cannot survive appellant's Commerce Clause attack.IThe few simple words of the Commerce Clause -- "The Congress shall have Power . . . To regulate Commerce . . . among the several States . . ." -- reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that, in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation. Page 441 U. S. 326 See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 336 U. S. 533-534 (1949). The Commerce Clause has accordingly been interpreted by this Court not only as an authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation. [Footnote 2] The cases defining the cope of permissible state regulation in areas of congressional silence reflect an often controversial evolution of rules to accommodate federal and state interests. [Footnote 3] Geer v. Connecticut was decided relatively early in that evolutionary process. We hold that time has revealed the error of the early resolution reached in that case, and accordingly, Geer is today overruled. Page 441 U. S. 327AGeer sustained against a Commerce Clause challenge a statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. [Footnote 4] The decision rested on the holding that no interstate commerce was involved. This conclusion followed, in turn, from the view that the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control not only the taking of game but also the ownership of game that had been lawfully reduced to possession. [Footnote 5] By virtue of this power, Connecticut could qualify the ownership of wild game taken within the State by, for example, prohibiting its removal from the State: "The common ownership imports the right to keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." 161 U.S. at 161 U. S. 530. Accordingly, the State's power to qualify ownership raised serious doubts whether the sale or exchange of wild game constituted "commerce" at all; in any event, the Court held that the qualification imposed by the challenged statute removed any transactions involving wild game killed in Connecticut from interstate commerce. [Footnote 6] Page 441 U. S. 328Mr. Justice Field and the first Mr. Justice Harlan dissented, rejecting as artificial and formalistic the Court's analysis of "ownership" and "commerce" in wild game. They would have affirmed the State's power to provide for the protection of wild game, but only "so far as such protection . . . does not contravene the power of Congress in the regulation of interstate Page 441 U. S. 329 commerce." [Footnote 7] Their view was that,"[w]hen any animal . . . is lawfully killed for the purposes of food or other uses of man, it becomes an article of commerce, and its use cannot be limited to the citizens of one State to the exclusion of citizens of another State. [Footnote 8]"BThe view of the Geer dissenters increasingly prevailed in subsequent cases. Indeed, not only has the Geer analysis been rejected when natural resources other than wild game were involved, but even state regulations of wild game have been held subject to the strictures of the Commerce Clause under the pretext of distinctions from Geer.The erosion of Geer began only 15 years after it was decided. A Commerce Clause challenge was addressed to an Oklahoma statute designed to prohibit the transportation beyond the State of natural gas produced by wells within the State. West v. Kansas Natural Gas Co., 221 U. S. 229 (1911). Based on reasoning parallel to that in Geer, Oklahoma urged its right to "conserve" the gas for the use of its own citizens, stressing the limited supply and the absence of alternative sources of fuel within the State. Nevertheless, the Court, in a passage reminiscent of the dissents in Geer, condemned the obvious protectionist motive in the Oklahoma statute and rejected the State's arguments with a powerful reaffirmation of the vision of the Framers:"The statute of Oklahoma recognizes [gas] to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation. . . . If the States have such power, a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining Page 441 U. S. 330 States their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its influence on interstate commerce need not be pointed out. To what consequences does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that, 'in matters of foreign and interstate commerce, there are no state lines.' In such commerce, instead of the States, a new power appears, and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all of the States, and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose, as it is the result, of the interstate commerce clause of the Constitution of the United States. If there is to be a turning backward, it must be done by the authority of another instrumentality than a court."221 U.S. at 221 U. S. 255-256. The Court distinguished discriminatory or prohibatory regulations offensive to the Commerce Clause, such as the Oklahoma statute, from a valid "exercise of the police power to regulate the taking of natural gas" that was "universal in its application and justified by the nature of the gas and which allowed its transportation to other states." Id. at 221 U. S. 257; see id. at 221 U. S. 252-254 (distinguishing Ohio Oil Co. v. Indiana, 177 U. S. 190 (1900)).In subsequent Commerce Clause challenges to state regulation of exports of natural resources, the West analysis emerged as the dominant approach. See, e.g., Pennsylvania v. West Virginia, 262 U. S. 553, 262 U. S. 598-600 (1923); [Footnote 9] H. P. Hood Sons, Page 441 U. S. 331 Inc. v. Du Mond, 336 U. S. 525 (1949). Today's principle is that stated in Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 142 (1970):"Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."(Citations omitted.)This formulation was employed only last Term to strike down New Jersey's attempt to "conserve" the natural resource of landfill areas within the State for the disposal of waste generated within the State. Philadelphia v. New Jersey, 437 U. S. 617, 437 U. S. 624 (1978).The Geer analysis has also been eroded to the point of virtual extinction in cases involving regulation of wild animals. The first challenge to Geer's theory of a State's power over wild animals came in Missouri v. Holland, 252 U. S. 416 (1920). The State of Missouri, relying on the theory of state ownership of wild animals, attacked the Migratory Bird Treaty Act on the ground that it interfered with the State's control over wild animals within its boundaries. Writing for the Court, Mr. Justice Holmes upheld the Act as a proper Page 441 U. S. 332 exercise of the treatymaking power. He commented in passing on he artificiality of the Geer rationale: "To put the claim of the State upon title is to lean upon a slender reed." 252 U.S. at 252 U. S. 434.Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 (1928), undermined Geer even more directly. A Louisiana statute forbade the transportation beyond the State of shrimp taken in Louisiana waters until the heads and shells had been removed. [Footnote 10] The statute clearly relied on the Geer "state control of ownership" rationale. [Footnote 11] Anyone lawfully taking shrimp from Louisiana waters was granted "a qualified interest which may be sold within the State." Only after the head and shell Page 441 U. S. 333 had been removed within the State did the taker or possessor acquire "title and the right to sell and ship the same beyond the limit[s] of the State, without restriction or reservation.'" 278 U.S. at 278 U. S. 8.Ignoring the niceties of "title" to the shrimp and concentrating instead on the purposes and effects of the statute, Foster-Fountain Packing struck down the statute as economic protectionism abhorrent to the Commerce Clause. The analysis resembled that employed in the natural gas cases, which were cited with approval, id. at 278 U. S. 10-11, 278 U. S. 13. [Footnote 12] Geer was distinguished on the ground that, there, "[n]o part of the game was permitted by the statute to become an article of interstate commerce." 278 U.S. at 278 U. S. 12. [Footnote 13] Limiting Geer to cases involving complete embargoes on interstate commerce in a wild animal created the anomalous result that the most burdensome laws enjoyed the most protection from Commerce Clause attack.Foster-Fountain Packing's implicit shift away from Geer's formalistic "ownership" analysis became explicit in Toomer v. Witsell, 334 U. S. 385, 334 U. S. 402 (1948), which struck down as violations of the Commerce Clause and the Privileges and Page 441 U. S. 334 Immunities Clause certain South Carolina laws discriminating against out-of-state commercial fishermen:"The whole ownership theory, in fact, is now generally regarded as but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource. And there is no necessary conflict between that vital policy consideration and the constitutional command that the State exercise that power, like its other powers, so as not to discriminate without reason against citizens of other States."Although stated in reference to the Privileges and Immunities Clause challenge, this reasoning is equally applicable to the Commerce Clause challenge. [Footnote 14] Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977), dispelled any doubts on that score. In rejecting the argument that Virginia's "ownership" of fish swimming in its territorial waters empowered the State to forbid fishing by federally licensed ships owned by nonresidents while permitting residents to fish, Seacoast Products explicitly embraced the analysis of the Geer dissenters:"A State does not stand in the same position as the owner of a private game preserve, and it is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . Geer v. Connecticut, 161 U. S. 519, 161 U. S. 539-540 (1896) Page 441 U. S. 335 (Field, J., dissenting). The 'ownership' language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' [Citing Toomer.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution."431 U.S. at 431 U. S. 284. [Footnote 15]CThe case before us is the first in modern times to present facts essentially on all fours with Geer. [Footnote 16] We now conclude that challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources, and therefore expressly overrule Geer. We thus bring our analytical framework into conformity with practical realities. Overruling Geer also eliminates the anomaly, created by the decisions distinguishing Geer, that statutes imposing the most extreme burdens on interstate commerce (essentially total embargoes) were the most immune from challenge. At the same time, the general rule we adopt in this case makes ample allowance for preserving, in ways not Page 441 U. S. 336 inconsistent with the Commerce Clause, the legitimate state concerns for conservation and protection of wild animals underlying the 19th-century legal fiction of state ownership.IIWe turn then to the question whether the burden imposed on interstate commerce in wild game by § 4-115(B) is permissible under the general rule articulated in our precedents governing other types of commerce. See, e.g., Pike v. Bruce Church, Inc., 397 U.S. at 397 U. S. 142, quoted supra at 441 U.S. 331. Under that general rule, we must inquire (1) whether the challenged statute regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. The burden to show discrimination rests on the party challenging the validity of the statute, but,"[w]hen discrimination against commerce . . . is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake."Hunt v. Washington Apple Advertising Comm'n, 432 U. S. 333, 432 U. S. 353 (1977). Furthermore, when considering the purpose of a challenged statute, this Court is not bound by "[t]he name, description or characterization given it by the legislature or the courts of the State," but will determine for itself the practical impact of the law. Lacoste v. Louisiana Dept. of Conservation, 263 U. S. 545, 263 U. S. 550 (1924); see Foster-Fountain Packing Co. v. Haydel, 278 U.S. at 278 U. S. 10; Pike v. Bruce Church, Inc., supra.Section 4-115(B), on its face, discriminates against interstate commerce. It forbids the transportation of natural minnows Page 441 U. S. 337 out of the State for purposes of sale, and thus "overtly blocks the flow of interstate commerce at [the] State's borders." Philadelphia v. New Jersey, 437 U.S. at 437 U. S. 624. Such facial discrimination, by itself, may be fatal defect, regardless of the State's purpose, because "the evil of protectionism can reside in legislative means, as well as legislative ends." Id. at 437 U. S. 626. [Footnote 17] At a minimum, such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.Oklahoma argues that § 4-115(B) serves a legitimate local purpose in that it is "readily apparent as a conservation measure." Brief for Appellee 8. The State's interest in maintaining the ecological balance in state waters by avoiding the removal of inordinate numbers of minnows may well qualify as a legitimate local purpose. We consider the States' interests in conservation and protection of wild animals as legitimate local purposes similar to the States' interests in protecting the health and safety of their citizens. See, e.g., Firemen v. Chicago, R.I. & P. R. Co., 393 U. S. 129 (1968). But the scope of legitimate state interests in "conservation" is narrower under this analysis than it was under Geer. A State may no longer "keep the property, if the sovereign so chooses, always within its jurisdiction for every purpose." Geer v. Connecticut, 161 U.S. at 161 U. S. 530. The fiction of state ownership may no longer be used to force those outside the State to bear the full costs of "conserving" the wild animals within its borders when equally effective nondiscriminatory conservation measures are available.Far from choosing the least discriminatory alternative, Page 441 U. S. 338 Oklahoma has chosen to "conserve" its minnows in the way that most overtly discriminates against interstate commerce. The State places no limits on the numbers of minnows that can be taken by licensed minnow dealers; nor does it limit in any way how these minnows may be disposed of within the State. [Footnote 18] Yet it forbids the transportation of any commercially significant number of natural minnows out of the State for sale. [Footnote 19] Section 4-115(B) is certainly not a "last ditch" attempt at conservation after nondiscriminatory alternatives have proved unfeasible. It is rather a choice of the most discriminatory means even though nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local purpose more effectively. [Footnote 20]We therefore hold that § 4-115(B) is repugnant to the Commerce Clause.IIIThe overruling of Geer does not leave the States powerless to protect and conserve wild animal life within their borders. Today's decision makes clear, however, that States may promote Page 441 U. S. 339 this legitimate purpose only in ways consistent with the basic principle that "our economic unit is the Nation," H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. at 336 U. S. 537, and that, when a wild animal "becomes an article of commerce . . . , its use cannot be limited to the citizens of one State to the exclusion of citizens of another State." Geer v. Connecticut, supra at 161 U. S. 538 (Field, J., dissenting).Reversed

U.S. Supreme CourtHughes v. Oklahoma, 441 U.S. 322 (1979)Hughes v. OklahomaNo. 77-1439Argued January 9, 1979Decided April 24, 1979441 U.S. 322SyllabusAn Oklahoma statute prohibits transporting or shipping outside the State for sale natural minnows seined or procured from waters within the State. Appellant, who holds a Texas license to operate a commercial minnow business in Texas, was charged with violating the Oklahoma statute by transporting from Oklahoma to Texas a load of natural minnows purchased from a minnow dealer licensed to do business in Oklahoma. Appellant's defense that the Oklahoma statute was unconstitutional because it was repugnant to the Commerce Clause was rejected, and he was convicted and fined. The Oklahoma Court of Criminal Appeals affirmed, relying on Geer v. Connecticut, 161 U. S. 519, which had sustained against a Commerce Clause challenge a Connecticut statute forbidding the transportation beyond the State of game birds that had been lawfully killed within the State. The Geer decision rested on the holding that no interstate commerce was involved, because the State had the power, as representative for its citizens, who "owned" in common all wild animals within the State, to control the "ownership" of game that had been lawfully reduced to possession, and had exercised its power by prohibiting its removal from the State.Held: The Oklahoma statute is repugnant to the Commerce Clause. Pp. 441 U. S. 325-339.(a) Geer v. Connecticut, supra, is overruled. Time has revealed the error of the result reached in Geer through its application of the 19th-century legal fiction of state ownership of wild animals. Challenges under the Commerce Clause to state regulations of wild animals should be considered according to the same general rule applied to state regulations of other natural resources. Pp. 441 U. S. 326-335.(b) Under that general rule, this Court must inquire whether the challenged statute regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; whether the statute serves a legitimate local purpose; and, if so, whether alternative means could promote this local purpose as well without discriminating against interstate commerce. P. 441 U. S. 336.(c) The Oklahoma statute, on its face, discriminates against interstate Page 441 U. S. 323 commerce by forbidding the transportation of natural minnows out of the State for purposes of sale, and thus overtly blocking the flow of interstate commerce at the State's border. The statute is not a "last ditch" attempt at conservation after nondiscriminatory alternatives have proved unfeasible. It is, rather, a choice of the most discriminatory means, even though nondiscriminatory alternatives would seem likely to fulfill the State's purported legitimate local purpose of conservation more effectively. Pp. 441 U. S. 336-338.(d) States may promote the legitimate purpose of protecting and conserving wild animal life within their borders only in ways consistent with the basic principle that the pertinent economic unit is the Nation; and when a wild animal becomes an article of commerce, its use cannot be limited to the citizens of one State to the exclusion of citizens of another State. Pp. 338-339.572 P.2d 573, reversed.BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 441 U. S. 339.

1975_75-145

MR. JUSTICE BRENNAN delivered the opinion of the Court.The question to be decided is whether the Northern Cheyenne Allotment Act, Act of June 3, 1926, 44 Stat. 690, gave the allottees of surface lands vested rights in the mineral deposits underlying those lands. The District Court for the District of Montana held that the Act did not grant the allottees vested rights in the mineral deposits. 349 F. Supp. 1302 (1972). The Court of Appeals for the Ninth Circuit reversed. 505 F.2d 268 (1974). We granted certiorari. 423 U.S. 891 (1975). We agree with the District Court, and reverse.IThe 1926 Act statutorily established the Northern Cheyenne Reservation pursuant to the federal policy expressed in the General Allotment Act of 1887, 24 Stat. 388, [Footnote 1] and provided for the allotment of tracts of land Page 425 U. S. 651 to individual tribal members. Section 1 of the Act declared the lands constituting the reservation "to be the property of [the Northern Cheyenne] Indians subject to such control and management of said property as the Congress of the United States may direct." Section 2 set up a procedure for allotment of agricultural and grazing lands. Section 3, 44 Stat. 691, upon which the question for decision in this case turns, reads as follows:"That the timber, coal or other minerals, including oil, gas, and other natural deposits on said reservation are hereby reserved for the benefit of the tribe and may be leased with the consent of the Indian council under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That at the expiration of fifty years from the date of the approval of this Act the coal or other minerals, including oil, gas, and other natural deposits, of said allotments shall become the property of the respective allottees or their heirs: Provided further, That the unallotted lands of said tribe of Indians shall be held in common, subject to the control and management thereof as Congress may deem expedient for the benefit of said Indians."On its face, § 3 provides that title to the mineral deposits would pass to the allottees, or their heirs, [Footnote 2] 50 years after approval of the Act, or in 1976. But the Page 425 U. S. 652 phrasing might also be read to imply a reserved power in Congress to terminate the allottees' interest before that date. Thus, the critical question is whether Congress could, as it purports to have done in 1968, terminate the grant without rendering the United States constitutionally liable to pay the allottees just compensation.A supervening event of particular significance was the considerable increase in value of coal reserves under the allotted lands that occurred in the 1960's due to increasing energy demand and the concomitant need for new sources of energy. [Footnote 3] Until this occurred, the reservation of the deposits until 1976 for the benefit of the Tribe had not significantly benefited it, because mining of most of the coal was not economically feasible. There was also substantial concern that, because one-third of the allottees did not live on the reservation, if control of strip mining passed in 1976 to the individual allottees, serious adverse consequences might be suffered by the Indians living on the reservation. In addition, Congress believed that injustice might result if the benefits to be realized by individual Indians depended upon whether coal was found under particular allotted lands. S.Rep. No. 1145, 90th Cong., 2d Sess., 2 (1968); H.R.Rep. No. 1292, 90th Cong., 2d Sess., 2 (1968). These considerations led Congress in 1968 to terminate the grant to allottees and to reserve the mineral rights "in perpetuity for the benefit of the Tribe." Act of July 24, 1968, Pub.L. 90-424, 82 Stat. 424. [Footnote 4] The termination Page 425 U. S. 653 was, however, expressly conditioned upon a prior judicial determination that the allottees had not been granted vested rights to the mineral deposits by the 1926 Act. Congress so conditioned the termination to avoid the possibility of a successful claim for damages against the United States by the allottees under the Just Compensation Clause of the Fifth Amendment. The 1968 amendment authorized the Tribe to commence an action against the allottees in the District Court for Montana"to determine whether under [the 1926 Act] the allottees, their heirs or devisees, have received a vested property right in the minerals which is protected by the fifth amendment,"and provided that the reservation of the minerals in perpetuity for the benefit of the Tribe "shall cease to have any force or effect" if the court determines that "the allottees, their heirs or devisees, have a vested interest in the minerals which is protected by the fifth amendment." [Footnote 5] Page 425 U. S. 654IIBoth the Tribe and the allottees argue that the plain meaning of § 3 of the 1926 Act, providing that the mineral deposits "shall become the property of the respective allottees" 50 years after the effective date of the Act, compels a declaratory judgment in their favor. The Tribe argues that this provision can only be read to grant an expectancy, while the allottees maintain that it unequivocally grants a vested future interest. [Footnote 6] Both interpretations Page 425 U. S. 655 are consistent with the wording of the Act, and we therefore must determine the intent of Congress by looking to the legislative history against the background of principles governing congressional power to alter allotment plans.The District Court agreed with the Tribe, reading "unallotted lands" in § 3 as including the mineral deposits, since the Act expressly severed the mineral deposits from the surface of the allotted lands and subjected unallotted lands "to the control and management thereof as Congress may deem expedient for the benefit of said Indians." 349 F. Supp. at 1309-1310. The Court of Appeals rejected the District Court's interpretation of "unallotted lands" as including the severed mineral deposits, rendering them subject to congressional control and management; rather, it read § 3 to be an "unconditional, noncontingent grant of [the mineral] deposits to the allottees," and noted the absence of any "clear expression of Congress's retained power." 505 F.2d at 271-272.The Court of Appeals erred in its basic approach to construction of the 1926 Act. Its view was that Congress must be regarded as having relinquished its control over Indian lands in the absence of an express statement of its intent to retain the power. [Footnote 7] Just the opposite is true. The Court has consistently recognized Page 425 U. S. 656 the wide-ranging congressional power to alter allotment plans until those plans are executed. E.g., Chase v. United States, 256 U. S. 1, 256 U. S. 7 (1921); United States v. Rowell, 243 U. S. 464, 243 U. S. 468 (1917); Sizemore v. Brady, 235 U. S. 441, 235 U. S. 449-450 (1914); Gritts v. Fisher, 224 U. S. 640, 224 U. S. 648 (1912); Stephens v. Cherokee Nation, 174 U. S. 445, 174 U. S. 484 (1899). This principle has specifically been applied to uphold congressional imposition on allottees of restraints against alienation of their interests or expansion of the class of beneficiaries under an allotment Act. E.g., United States v. Jim, 409 U. S. 80 (1972); Brader v. James, 246 U. S. 88 (1918). The extensiveness of this congressional authority, as well as "Congress' unique obligation toward the Indians," Morton v. Mancari, 417 U. S. 535, 417 U. S. 555 (1974), underlies the judicially fashioned canon of construction that these statutes are to be read to reserve Congress' powers in the absence of a clear expression by Congress to the contrary. Chippewa Indians v. United States, 307 U. S. 1, 307 U. S. 5 (1939).Read in this light, the statutory history of the Northern Cheyenne Reservation allotment supports the District Court's reading of the Act. Although prior to 1925 allotment Acts had been enacted for nearly all Indian reservations, none yet applied to the Northern Cheyenne Reservation. The Tribe in 1925 petitioned Senator Walsh of Montana to have the reservation allotted. The petition read in pertinent part:"We, the undersigned members of the Northern Cheyenne Indian Tribe, of the State of Montana, do hereby humbly beseech you to do all in your power to have a Bill introduced and passed in Congress, to have an allotment of not less than 320 acres of tillable farm land made to each and every member of the Northern Cheyenne Indians.""To reserve all mineral, timber, and coal lands Page 425 U. S. 657 for the benefit of the Northern Cheyenne Indian Tribe, said tribe to have absolute control of same."Thus, the Tribe from the outset sought allotment provisions that would retain, for the benefit of the entire Tribe, the rights to the coal and other minerals underlying the reservation.Shortly thereafter Hubert Work, Secretary of the Interior, sent Representative Leavitt of Montana, Chairman of the House Committee on Indian Affairs, a proposed draft of an allotment bill for the Northern Cheyenne Reservation. An accompanying letter reiterated the Tribe's desire to give individual Indians agricultural and grazing lands. Secretary Work also suggested that a survey of the land be made, and further proposed that,"[i]n the event any of the land listed for allotting is found to contain coal or other minerals, it is contemplated to reserve all such minerals for the tribe and to allot the surface only."H.R.Rep. No. 383, 69th Cong., 1st Sess., 2 (1926).The proposed bill (H.R. 9558) introduced in the House two days later by Representative Leavitt followed this suggestion. Section 2 of this bill provided for a geological survey and required that"if any of the land shall be found to contain coal or other minerals, only the surface thereof may be allotted, and all minerals on said lands are hereby reserved for the benefit of the tribe."This language is clear evidence of an intent to sever the surface estate from the interest in the minerals at least wherever minerals are found to exist. But nothing appears in the legislative history explaining the object of the proviso:"Provided, That at the expiration of fifty years from the date of the approval of this Act, the coal Page 425 U. S. 658 or other mineral deposits of said allotments shall become the property of the respective allottees or their heirs or assigns."We are persuaded for several reasons that it was not intended to grant the allottees a vested future interest in the mineral deposits, and thereby relinquish congressional "control and management thereof as Congress may deem expedient for the benefit of said Indians."The proposed bill plainly reveals a purpose to sever the mineral rights from the surface estate; "only the surface . . . may be allotted" under the bill. In fact, the limited object of the bill, as stated in its title, was "to provide for allotting in severalty agricultural lands" within the reservation. This limited object carries out Secretary Work's suggestion, and honors the Tribe's request, to limit the allotment to the surface lands to enable the Tribe to enjoy the full benefit of the mineral rights. Nothing in the legislative history shows any congressional purpose not to follow the Secretary's proposal; every indication is to the contrary. [Footnote 8] Only the surface lands were to be subject to allotment. The House Committee's amendments to the bill make this purpose even clearer; the Committee retained the language that limited the allotment to surface lands, but omitted the language imposing this limitation only in the event that minerals were found on the land. [Footnote 9] H.R.Rep. Page 425 U. S. 659 No. 383, supra at 1. The House passed the bill as amended by the Committee. 67 Cong.Rec. 6522 (1926).The Senate Committee reported out the House bill with several amendments, two of which have significance in support of our conclusion. S.Rep. No. 638, 69th Cong., 1st Sess. (1926). A new opening section, eventually § 1 of the Act, see supra at 425 U. S. 651, confirmed the Tribe's title to the reservation lands and expressly retained Congress' authority to manage those lands. The Committee also rewrote § 2 of the House bill and substituted the following as § 3 of its bill:"That the timber, coal or other minerals, including oil, gas, and other natural deposits on said reservation, are hereby reserved for the benefit of the tribe: Provided, That at the expiration of fifty years from the date of the approval of this act the coal or other minerals, including oil, gas, and other natural deposits of said allotments shall become the property of the respective allottees or their heirs: Provided further, That the unallotted lands of said tribe of Indians shall be held in common, subject to the control and management thereof as Congress may deem expedient for the benefit of said Indians."The changes from the House bill indicate no difference in purpose. The coal and other mineral rights were still "reserved for the benefit of the tribe," with no suggestion from the Senate Committee that it attached any more import to the 50-year provision than had the House. Most significantly, and a critical fact supporting the District Court's construction of § 3, the Committee added an express reservation of congressional authority Page 425 U. S. 660 over "unallotted lands." [Footnote 10] Since the House bill clearly allotted only the surface lands, we are compelled to conclude that, when both Houses adopted the bill as amended by the Senate, "unallotted lands" in § 3 included the mineral deposits. See British-American Oil Co. v. Board of Equalization, 299 U. S. 159, 299 U. S. 164-165 (1936). [Footnote 11]The conclusion we reach is also supported by the wording of the allotment trust patents. The patents"reserved for the benefit of the Northern Cheyenne Indians, all the coal or other minerals, including oil, gas, and all natural deposits in said land,"without any reference to the allottees' future interest. Thus, the agency charged with executing the Act construed it as not granting the allottees any vested rights. "While not conclusive, this construction given to the [allotment] act in the course of its actual execution is entitled to great respect." La Roque v. United States, 239 U. S. 62, 239 U. S. 64 (1915). See United States v. Jackson, 280 U. S. 183, 280 U. S. 193 (1930); Assiniboine & Sioux Tribes v. Nordwick, 378 F.2d 426, 432 (CA9 1967), cert. denied, 389 U.S. 1046 (1968).Reversed

U.S. Supreme CourtNorthern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649 (1976)Northern Cheyenne Tribe v. HollowbreastNo. 75-145Argued March 29, 1976Decided May 19, 1976425 U.S. 649SyllabusSection 3 of the Northern Cheyenne Allotment Act of 1926 (Act) reserves coal and other mineral deposits underlying lands on the Northern Cheyenne Reservation for the Tribe's benefit, but further provides that, 50 years after approval of the Act, such deposits "shall become the property of the respective allottees or their heirs," and that the "unallotted lands" shall be "subject to the control and management thereof as Congress may deem expedient for the benefit of said Indians." In 1968, Congress amended the Act to reserve the mineral rights "in perpetuity for the benefit of the Tribe," subject to a prior judicial determination that the allottees had not been granted vested rights to the mineral deposits by the Act. As authorized by the 1968 amendment, the Tribe brought suit against the allottees to determine whether the allottees, or their heirs or devisees, had received a vested property right in the minerals under the Act. The District Court held that the Act did not grant the allottees vested rights in the mineral deposits, construing "unallotted lands" in § 3 as including such deposits. The Court of Appeals reversed, construing § 3 as an unconditional, noncontingent grant of the mineral deposits to the allottees, in the absence of any express statement of Congress' intent to retain power over the deposits.Held: The Act did not give the allottees of surface lands vested rights in the mineral deposits underlying those lands. This reading of the Act is supported by its legislative history, which indicates a congressional intent to sever the surface estate from the interest in the minerals and no intent to grant allottees a vested future interest in the mineral deposits, and thereby relinquish "control and management thereof as Congress may deem expedient for the benefit of said Indians." Such conclusion is also supported by the fact that the agency charged with executing the Act construed it as not granting the allottees any vested rights. Pp. 425 U. S. 654-660.505 F.2d 268, reversed. Page 425 U. S. 650BRENNAN, J., delivered the opinion for a unanimous Court. BLACKMUN, J., filed a concurring opinion, post, p. 425 U. S. 660.

1958_34

MR. JUSTICE CLARK delivered the opinion of the Court.This case is here again on appeal from a judgment of civil contempt entered against appellant by the Merrimack County Court and affirmed by the Supreme Court of New Hampshire. It arises out of appellant's refusal to produce certain documents before a New Hampshire legislative investigating committee which was authorized and directed to determine, inter alia, whether there were subversive persons or organizations present in the State of New Hampshire. Upon the first appeal from the New Hampshire court, 100 N.H. 436, 130 A.2d 278, we vacated the judgment, 355 U. S. 16, and remanded the case to it for consideration in the light of Sweezy v. New Hampshire, 354 U. S. 234 (1957). That court reaffirmed its former decision, 101 N.H. 139, 136 A.2d 221, deeming Sweezy not to control the issues in the instant case. For Page 360 U. S. 74 reasons which will appear, we agree with the Supreme Court of New Hampshire.As in Sweezy, the Attorney General of New Hampshire, who had been constituted a one-man legislative investigating committee by Joint Resolution of the Legislature, [Footnote 1] was conducting a probe of subversive activities in the State. In the course of his investigation, the Attorney General called appellant, Executive Director of World Fellowship, Inc., a voluntary corporation organized under the laws of New Hampshire and maintaining a summer camp in the State. Appellant testified concerning his own activities, but refused to comply with two subpoenas duces tecum which called for the production of certain corporate records for the years 1954 and 1955. The information sought consisted of: (1) a list of the names of all the camp's nonprofessional employees for those two summer seasons; (2) the correspondence which appellant had carried on with and concerning those persons who came to the camp as speakers; and (3) the names of all persons who attended the camp during the same periods of time. Met with appellant's refusal, the Attorney General, in accordance with state procedure, N.H.Rev.Stat.Ann., c. 491, §§ 19, 20, petitioned the Merrimack County Court to call appellant before it and require compliance with the subpoenas.In court, appellant again refused to produce the information. He claimed that by the Smith Act, [Footnote 2] as construed Page 360 U. S. 75 by this Court in Pennsylvania v. Nelson, 350 U. S. 497 (1956), Congress had so completely occupied the field of subversive activities that the States were without power to investigate in that area. Additionally, he contended that the Due Process Clause precluded enforcement of the subpoenas, first, because the resolution under which the Attorney General was authorized to operate was vague and, second, because the documents sought were not relevant to the inquiry. Finally, appellant argued that enforcement would violate his rights of free speech and association.The Merrimack County Court sustained appellant's objection to the production of the names of the nonprofessional employees. The Attorney General took no appeal from that ruling, and it is not before us. Appellant's objections to the production of the names of the camp's guests were overruled, and he was ordered to produce them. Upon his refusal, he was adjudged in contempt of court and ordered committed to jail until he should have complied with the court order. On the demand for the correspondence and the objection thereto, the trial court made no ruling, but transferred the question to the Supreme Court of New Hampshire. That court affirmed the trial court's action in regard to the guest list. Concerning the requested production of the correspondence, the Supreme Court entered no order, but directed that on remand the trial court"may exercise its discretion with respect to the entry of an order to enforce the command of the subpoena for the production of correspondence."100 N.H. at 448, 130 A.2d at 287. No remand having yet been effected, the trial court has not acted upon this phase of the case, and there is no final judgment requiring the appellant to produce the letters. We therefore do not treat with that question. 28 U.S.C. § 1257. See Radio Station WOW v. Johnson, 326 U. S. 120, 326 U. S. 123-124 (1945). We now pass to a consideration of the sole Page 360 U. S. 76 question before us, namely, the validity of the order of contempt for refusal to produce the list of guests at World Fellowship, Inc., during the summer seasons of 1954 and 1955. In addition to the arguments appellant made to the trial court, he urges here that the "indefinite sentence" imposed upon him constitutes such cruel and unusual punishment as to be a denial of due process.Appellant vigorously contends that the New Hampshire Subversive Activities Act of 1951 [Footnote 3] and the resolution creating the committee have been superseded by the Smith Act, as amended. [Footnote 4] In support of this position appellant cites Pennsylvania v. Nelson, supra. The argument is that Nelson, which involved a prosecution under a state sedition law, held that "Congress has intended to occupy the field of sedition." This rule of decision, it is contended, should embrace legislative investigations made pursuant to an effort by the Legislature to inform itself of the presence of subversives within the State and possibly to enact laws in the subversive field. The appellant's argument sweeps too broad. In Nelson itself, we said that the"precise holding of the court . . . is that the Smith Act . . . , which prohibits the knowing advocacy of the overthrow of the Government of the United States by force and violence, supersedes the enforceability of the Pennsylvania Sedition Act, which proscribes the same conduct."(Italics supplied.) 350 U.S. at 350 U. S. 499. The basis of Nelson thus rejects the notion that it stripped the States of the right to protect themselves. All the opinion proscribed was a race between federal and state prosecutors to the courthouse door. The opinion made clear that a State could proceed with prosecutions for sedition against the State itself; that it can legitimately investigate in this area follows a fortiori. In Sweezy v. New Hampshire, supra, where the same contention was made Page 360 U. S. 77 as to the identical state Act, it was denied sub silentio. Nor did our opinion in Nelson hold that the Smith Act had proscribed state activity in protection of itself either from actual or threatened "sabotage or attempted violence of all kinds." In footnote 8 of the opinion it is pointed out that the State had full power to deal with internal civil disturbances. Thus, registration Statutes, quo warranto proceedings as to subversive corporations, the subversive instigation of riots, and a host of other subjects directly affecting state security furnish grist for the State's legislative mill. Moreover, the right of the State to require the production of corporate papers of a state-chartered corporation in an inquiry to determine whether corporate activity is violative of state policy is, of course, not touched upon in Nelson, and today stands unimpaired, either by the Smith Act or the Nelson opinion.Appellant's other objections can be capsuled into the single question of whether New Hampshire, under the facts here, is precluded from compelling the production of the documents by the Due Process Clause of the Fourteenth Amendment. Let us first clear away some of the underbrush necessarily surrounding the case because of its setting.First, the academic and political freedoms discussed in Sweezy v. New Hampshire, supra, are not present here in the same degree, since World Fellowship is neither a university nor a political party. Next, since questions concerning the authority of the committee to act as it did are questions of state law, Dreyer v. Illinois, 187 U. S. 71, 187 U. S. 84 (1902), we accept as controlling the New Hampshire Supreme Court's conclusion that"[t]he legislative history makes it clear beyond a reasonable doubt that it [the Legislature] did and does desire an answer to these questions."101 N.H. at 140, 136 A.2d at 221-222. Finally, we assume, without deciding, that Uphaus had sufficient standing to assert any rights of the guests whose Page 360 U. S. 78 identity the committee seeks to determine. See National Association for Advancement of Colored People v. Alabama, 357 U. S. 449 (1958). The interest of the guests at World Fellowship in their associational privacy having been asserted, we have for decision the federal question of whether the public interests overbalance these conflicting private ones. Whether there was "justification" for the production order turns on the "substantiality" of New Hampshire's interests in obtaining the identity of the guests when weighed against the individual interests which the appellant asserts. National Association for Advancement of Colored People v. Alabama, supra.What was the interest of the State? The Attorney General was commissioned [Footnote 5] to determine if there were any subversive persons [Footnote 6] within New Hampshire. The obvious starting point of such an inquiry was to learn what persons were within the State. It is therefore clear that the requests relate directly to the Legislature's area of interest, i.e., the presence of subversives in the State, as announced in its resolution. Nor was the demand of the subpoena burdensome; as to time, only a few months of each of the two years were involved; as to place, only the camp conducted by the Corporation; nor as to the lists of names, which included about 300 each year. Page 360 U. S. 79Moreover, the Attorney General had valid reason to believe that the speakers and guests at World Fellowship might be subversive persons within the meaning of the New Hampshire Act. The Supreme Court of New Hampshire found Uphaus' contrary position "unrelated to reality." Although the evidence as to the nexus between World Fellowship and subversive activities may not be conclusive, we believe it sufficiently relevant to support the Attorney General's action. The New Hampshire definition of subversive persons was born of the legislative determination that the Communist movement posed a serious threat to the security of the State. The record reveals that appellant had participated in "Communist front" activities, and that"[n]ot less than nineteen speakers invited by Uphaus to talk at World Fellowship had either been members of the Communist Party or had connections or affiliations with it or with one or more of the organizations cited as subversive or Communist controlled in the United States Attorney General's list."100 N.H. at 442, 130 A.2d at 283. While the Attorney General's list is designed for the limited purpose of determining fitness for federal employment, Wieman v. Updegraff, 344 U. S. 183 (1952), and guilt by association remains a thoroughly discredited doctrine, it is with a legislative investigation -- not a criminal prosecution -- that we deal here. Certainly the investigatory power of the State need not be constricted until sufficient evidence of subversion is gathered to justify the institution of criminal proceedings.The nexus between World Fellowship and subversive activities disclosed by the record furnished adequate justification for the investigation we here review. The Attorney General sought to learn if subversive persons were in the State because of the legislative determination that such persons, statutorily defined with a view toward the Communist Party, posed a serious threat to the security Page 360 U. S. 80 of the State. The investigation was, therefore, undertaken in the interest of self-preservation, "the ultimate value of any society," Dennis v. United States, 341 U. S. 494, 341 U. S. 509 (1951). This governmental interest outweighs individual rights in an associational privacy which, however real in other circumstances, cf. National Association for Advancement of Colored People v. Alabama, supra, were here tenuous, at best. The camp was operating as a public one, furnishing both board and lodging to persons applying therefor. As to them, New Hampshire law requires that World Fellowship, Inc., maintain a register, open to inspection of sheriffs and police officers. [Footnote 7] It is contended that the list might be"circulated throughout the states and the Attorney Generals throughout the states have cross-indexed files, so that any guest whose name is mentioned in that kind of proceeding immediately becomes suspect, even in his own place of residence."Record, p. 7. The record before us, however, only reveals a report to the Legislature of New Hampshire made by the Attorney General in accordance with the requirements of the resolution. We recognize, of course, that compliance with the subpoena will result in exposing the fact that the persons therein named were guests at World Fellowship. But so long as a committee must report to its legislative Page 360 U. S. 81 parent, exposure -- in the sense of disclosure -- is an inescapable incident of an investigation into the presence of subversive persons within a State. And the governmental interest in self-preservation is sufficiently compelling to subordinate the interest in associational privacy of persons who at least to the extent of the guest registration statute, made public at the inception the association they now wish to keep private. In the light of such a record, we conclude that the State's interest has not been "pressed, in this instance, to a point where it has come into fatal collision with the overriding" constitutionally protected rights of appellant and those he may represent. Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 307 (1940).We now reach the question of the validity of the sentence. The judgment of contempt orders the appellant confined until he produces the documents called for in the subpoenas. He himself admitted to the court that, although they were at hand, not only had he failed to bring them with him to court, but that, further, he had no intention of producing them. In view of appellant's unjustified refusal, we think the order a proper one. As was said in Green v. United States, 356 U. S. 165, 356 U. S. 197 (1958) (dissenting opinion):"Before going any further, perhaps it should be emphasized that we are not at all concerned with the power of courts to impose conditional imprisonment for the purpose of compelling a person to obey a valid order. Such coercion, where the defendant carries the keys to freedom in his willingness to comply with the court's directive, is essentially a civil remedy designed for the benefit of other parties, and has quite properly been exercised for centuries to secure compliance with judicial decrees."We have concluded that the committee's demand for the documents was a legitimate one; it follows that the judgment of contempt for refusal to produce them is valid. Page 360 U. S. 82 We do not impugn appellant's good faith in the assertion of what he believed to be his rights. But three courts have disagreed with him in interpreting those rights. If appellant chooses to abide by the result of the adjudication and obey the order of New Hampshire's courts, he need not face jail. If, however, he continues to disobey, we find on this record no constitutional objection to the exercise of the traditional remedy of contempt to secure compliance.Affirmed

U.S. Supreme CourtUphaus v. Wyman, 360 U.S. 72 (1959)Uphaus v. WymanNo. 34Argued November 17-18, 1958Decided June 8, 1959360 U.S. 72SyllabusIn an investigation conducted by the Attorney General of New Hampshire on behalf of the State Legislature under a resolution directing him to investigate violations of the State Subversive Activities Act and to determine whether "subversive persons" were then in the State, appellant, who is Executive Director of a corporation organized under the laws of the State and operating a summer camp in the State, testified concerning his own activities, but refused to comply with subpoenas duces tecum calling for the production of the names of all persons who attended the camp during 1954 and 1955. Pursuant to state procedure, he was brought before a state court. There, he did not plead the privilege against self-incrimination, but claimed that the investigation was beyond the power of the State, that the resolution was too vague, that the documents sought were not relevant to the inquiry, and that to compel him to produce them would violate his rights of free speech and association. These claims were decided against him, and, persisting in his refusal, he was adjudged guilty of civil contempt and ordered committed to jail until he complied with the order.Held: the judgment and sentence are sustained. Pp. 360 U. S. 73-82.(a) The New Hampshire Subversive Activities Act of 1951 and the resolution authorizing and directing the State Attorney General to investigate violations thereof have not been superseded by the Smith Act, as amended. Pennsylvania v. Nelson, 350 U. S. 497, distinguished. Pp. 360 U. S. 76-77.(b) The right of the State to require the production of corporate papers of a state-chartered corporation to determine whether corporate activities violate state policy stands unimpaired either by the Smith Act or by Pennsylvania v. Nelson, supra. P. 360 U. S. 77.(c) On the record in this case, the nexus between the corporation, its summer camp and subversive activities which might threaten the security of the State justifies the investigation; the State's interests in self-preservation outweigh individual rights in associational privacy, and the Due Process Clause of the Fourteenth Amendment does not preclude the State from compelling Page 360 U. S. 73 production of the names of the guests. Sweezy v. New Hampshire, 354 U. S. 234, and National Association for the Advancement of Colored People v. Alabama, 357 U. S. 449, distinguished. Pp. 360 U. S. 77-81.(d) Since the demand for the documents was legitimate one, the judgment of contempt for refusal to produce them is valid, and the sentence of imprisonment until appellant produces them does not constitute such cruel and unusual punishment as to be denial of due process. Pp. 360 U. S. 81-82.101 N.H. 139, 136 A.2d 221, affirmed.

1963_13

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The sole question in the case is the one we set down for reargument in 373 U. S. 746, 747-748: "whether the Florida courts, rather than solely the National Labor Relations Board, are tribunals with jurisdiction to enforce Page 375 U. S. 98 the State's prohibition" against an "agency shop" clause in a collective bargaining agreement.In this case, the union and the employer negotiated a collective bargaining agreement that contained an "agency shop" clause providing that the employees covered by the contract who chose not to join the union were required "to pay as a condition of employment, an initial service fee and monthly service fees" to the union. Nonunion employees brought suit in a Florida court to have the agency shop clause declared illegal, for an injunction against enforcement of it, and for an accounting. The Florida Supreme Court held that this negotiated and executed union security agreement violates the "right to work" provision of the Florida Constitution, and that the state courts have jurisdiction to afford a remedy. 141 So. 2d 269.We agree with that view.While § 8(a)(3) of the Taft-Hartley Act provides [Footnote 1] that it is not an unfair labor practice for an employer and Page 375 U. S. 99 a union to require membership in a union as a condition of employment provided the specified conditions are met, § 14(b) (61 Stat. 151, 29 U.S.C. § 164(b)) provides:"Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law."We start from the premise that, while Congress could preempt as much or as little of this interstate field as it chose, it would be odd to construe § 14(b) as permitting a State to prohibit the agency clause but barring it from implementing its own law with sanctions of the kind involved here.Section 14(b) came into the law in 1947, some years after the Wagner Act. The latter did not bar, as a matter of federal law,an agency shop agreement. [Footnote 2] Section 8(a)(3) Page 375 U. S. 100 of the Taft-Hartley Act also allowed it, saying that "nothing in this Act, or in any other statute of the United States, shall preclude" one. [Footnote 3]By the time § 14(b) was written into the Act, twelve States had statutes or constitutional provisions outlawing or restricting the closed shop and related devices [Footnote 4] -- a state power which we sustained in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525. These laws -- about which Congress seems to have been well informed during the 1947 debates [Footnote 5] -- had a wide variety of sanctions, including injunctions, damage suits, and criminal penalties. In 1947, Congress did not outlaw union security agreements per se, but it did add new conditions which, as presently provided in § 8(a)(3), [Footnote 6] require that there be a 30-day waiting period before any employee is forced into a union, that the union in question is the appropriate representative of the employees, and that an employer not discriminate against an employee if he has reasonable grounds for believing that membership in the union was not available to the employee on a nondiscriminatory basis or that the employee's membership was denied or terminated for reasons other than failure to meet union shop requirements as to dues and fees. In other words, Congress undertook pervasive regulation of union security agreements, raising in the minds of many whether it thereby preempted the field under the decision in Page 375 U. S. 101 Hill v. Florida, 325 U. S. 538, and put such agreements beyond state control. That is one reason why a section, which later became § 14(b), appeared in the House bill [Footnote 7] -- a provision described in the House Report [Footnote 8] as making clear and unambiguous the purpose of Congress not to preempt the field. That purpose was restated by the House Conference Report in explaining § 14(b). [Footnote 9] Senator Page 375 U. S. 102 Taft, in the Senate debates, stated that § 14(b) was to continue the policy of the Wagner Act and avoid federal interference with state laws in this field. As to the Wagner Act, he stated, "But that did not in any way prohibit the enforcement of State laws which already prohibited closed shops." [Footnote 10] (Italics added.) He went on to say,"That has been the law ever since that time. It was the law of the Senate bill; and, in putting in this express provision from the House bill [§ 14(b)], we in no way change the bill as passed by the Senate of the United States. [Footnote 11]"In light of the wording of § 14(b) and this legislative history, we conclude that Congress, in 1947, did not deprive the States of any and all power to enforce their laws restricting the execution and enforcement of union security agreements. Since it is plain that Congress left the States free to legislate in that field, we can only assume that it intended to leave unaffected the power to enforce those laws. Otherwise, the reservation which Senator Taft felt to be so critical would become empty, and largely meaningless.As already noted, under § 8(a)(3), a union security agreement is permissible, for example, if the union represents the employees as provided in § 9(a) (subject to rescission of the authority to make the agreement as provided in § 8(a)(3)). Those are federal standards entrusted by Congress to the Labor Board. Yet even if the union security agreement clears all federal hurdles, the States by reason of § 14(b) have the final say, and may Page 375 U. S. 103 outlaw it. There is thus conflict between state and federal law, but it is a conflict sanctioned by Congress with directions to give the right of way to state laws barring the execution and enforcement of union security agreements. It is argued that, if there is a violation of a state union security law authorized by § 14(b), it is a federal unfair labor practice, and that the federal remedy is the exclusive one. It is urged that that course is necessary if uniformity is to be achieved. But § 14(b) gives the States power to outlaw even a union security agreement that passes muster by federal standards. Where Congress gives state policy that degree of overriding authority, we are reluctant to conclude that it is nonetheless enforceable by the federal agency in Washington.This result, on its face, may seem to be at war with San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236, decided in 1959, and holding that, where action is"arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board."Id. at 359 U. S. 245. In Garmon, a state court was held precluded by the Taft-Hartley Act from awarding damages under state law for economic injuries resulting from peaceful picketing of a plant by labor unions that had not been selected by a majority of the employees as their bargaining agents.Garmon, however, does not state a constitutional principle; it merely rationalizes the problems of coexistence between federal and state regulatory schemes in the field of labor relations, and it did not present the problems posed by § 14(b), viz., whether the Congress had precluded state enforcement of select state laws adopted pursuant to its authority. The purpose of Congress is the ultimate touchstone. Congress, under the Commerce Clause, may displace state power (Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 234-236; San Diego Bldg. Trades Council v. Page 375 U. S. 104 Garmon, supra), or it may even, by silence, indicate a purpose to let state regulation be imposed on the federal regime. See Florida Lime & Avocado Growers v. Paul, 373 U. S. 132, 373 U. S. 141-143.The Court, in Algoma Plywood Co. v. Wisconsin Board, 336 U. S. 301, 336 U. S. 314, stated that "§ 14(b) was included to forestall the inference that federal policy was to be exclusive" on this matter of union security agreements. In that case, a state agency issued a cease and desist order against an employer from giving effect to a maintenance of membership agreement and ordered an employee reinstated and made whole for any loss of pay suffered. It was urged that, since § 10(a) of the Wagner Act gives the Federal Board "exclusive" power to prevent "any unfair labor practice," state power in the federal commerce field was displaced. Id. at 336 U. S. 305. State power, however, was held to exist alongside of federal power because of the special legislative history of the union security provisions of the Act. The dissent did not deny that; rather, it proceeded on the ground that, since the dispute arose prior to the 1947 Act, the case was to be judged by the pre-1947 construction of § 8(a)(3), as to which the majority and minority of the Court were in disagreement.It also was argued in Algoma Plywood Co. that § 14(b) displaced state law that "regulates" the union shop. The Court said:"But if there could be any doubt that the language of the section means that the Act shall not be construed to authorize any 'application' of a union security contract, such as discharging an employee, which under the circumstances 'is prohibited' by the State, the legislative history of the section would dispel it."336 U.S. at 336 U. S. 314.Congress, in other words, chose to abandon any search for uniformity in dealing with the problems of state laws barring the execution and application of agreements Page 375 U. S. 105 authorized by § 14(b), and decided to suffer a medley of attitudes and philosophies on the subject.As a result of § 14(b), there will arise a wide variety of situations presenting problems of the accommodation of state and federal jurisdiction in the union security field. As noted, Algoma Plywood Co. v. Wisconsin Board, supra, upheld the right of a State to reinstate with back pay an employee discharged in violation of a state union security law. On the other hand, picketing in order to get an employer to execute an agreement to hire all-union labor in violation of a state union security statute lies exclusively in the federal domain (Local Union 429 v. Farnsworth & Chambers Co., 353 U.S. 969, and Local No. 438 v. Curry, 371 U. S. 542), because state power, recognized by § 14(b), begins only with actual negotiation and execution of the type of agreement described by § 14(b). Absent such an agreement, conduct arguably an unfair labor practice would be a matter for the National Labor Relations Board under Garmon.We held in Plumbers' Union v. Borden, 373 U. S. 690, and in Iron Workers v. Perko, 373 U. S. 701, that Garmon preempted the field where employees were suing unions for damages arising out of practices that arguably were unfair labor practices subject to regulation by the National Labor Relations Board. Those cases, however, did not present for decision any problem under § 14(b), though the question was tendered in the Borden case, but not passed on either by the state tribunal or by us. 373 U.S. at 373 U. S. 692, n. 2.The relief prayed for below is within the ambit of Algoma Plywood Co. v. Wisconsin Board, supra, and the regulatory scheme that Congress designed when it adopted § 14(b).Affirmed

U.S. Supreme CourtRetail Clerks v. Schermerhorn, 375 U.S. 96 (1963)Retail Clerks International Association,Local 1625, AFL-CIO v. SchermerhornNo. 13Argued April 18,1963Decided in part and set for reargument on one issue June 3, 1963Reargued October 16-17, 1963Decided December 2, 1963375 U.S. 96SyllabusPetitioner union and an employer in Florida entered into a collective bargaining agreement containing an "agency shop" clause, which left union membership optional with the employees, but required that, as a condition of continued employment, nonunion employees pay to the union sums equal to the initiation fees and periodic dues paid by union members. Nonunion employees of the employer sued in a Florida State Court for a declaratory judgment that this provision was "null and void" and unenforceable under the Florida "right to work," law and for an injunction against petitioner union and the employer to prevent them from requiring nonunion employees to contribute money to the union.Held: the Florida courts, rather than solely the National Labor Relations Board, are tribunals with jurisdiction to enforce the State's prohibition against an "agency shop" clause in an executed collective bargaining agreement. San Diego Council v. Garmon, 359 U. S. 236, distinguished. Pp. 375 U. S. 97-105.141 So. 2d 269, affirmed. Page 375 U. S. 97

1980_80-5

JUSTICE BLACKMUN delivered the opinion of the Court.A regular or reserve commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. 10 U.S.C. §§ 3911 and 3929. The question presented by this case is whether, upon the dissolution of a marriage, federal law precludes a state court from dividing military nondisability retired pay pursuant to state community property laws.IAlthough disability pensions have been provided to military veterans from the Revolutionary War period to the Page 453 U. S. 212 present, [Footnote 1] it was not until the War Between the States that Congress enacted the first comprehensive nondisability military retirement legislation. See Preliminary Review of Military Retirement Systems: Hearings before the Military Compensation Subcommittee of the House Committee on Armed Services, 95th Cong., 1st and 2d Sess., 5 (1977-1978) (Military Retirement Hearings) (statement of Col. Leon S. Hirsh, Jr., USAF, Director of Compensation, Office of the Assistant Secretary of Defense for Manpower, Reserve Affairs, and Logistics); Subcommittee on Retirement Income and Employment, House Select Committee on Aging, Women and Retirement Income Programs: Current Issues of Equity and Adequacy, 96th Cong., 1st Sess., 15 (Comm.Print 1979) (Women and Retirement). Sections 15 and 21 of the Act of Aug. 3, 1861, 12 Stat. 289, 290, provided that any Army, Navy, or Marine Corps officer with 40 years of service could apply to the President to be retired with pay; in addition, §§ 16 and 22 of that Act authorized the involuntary retirement with pay of any officer "incapable of performing the duties of his office." 12 Stat. 289, 290.The impetus for this legislation was the need to encourage or force the retirement of officers who were not fit for wartime duty. [Footnote 2] Women and Retirement at 15. Thus, from Page 453 U. S. 213 its inception, [Footnote 3] the military nondisability retirement system has been "as much a personnel management tool as an income maintenance method," id. at 16; the system was and is designed not only to provide for retired officers, but also to ensure a "young and vigorous" military force, to create an orderly pattern of promotion, and to serve as a recruiting and reenlistment inducement. Military Retirement Hearings, at 6, 13 (statement of Col. Hirsh).Under current law, there are three basic forms of military retirement: nondisability retirement; disability retirement; and reserve retirement. See id. at 4. For our present purposes, only the first of these three forms is relevant. [Footnote 4] Since each of the military services has substantially the same nondisability retirement system, see id. at 5, the Army's system may be taken as typical. [Footnote 5] An Army officer who has 20 years of service, at least 10 of which have been active service as a commissioned officer, may request that the Secretary of the Page 453 U. S. 214 Army retire him. 10 U.S.C. § 3911. [Footnote 6] An officer who requests such retirement is entitled to "retired pay." This is calculated on the basis of the number of years served and rank achieved. §§ 3929 and 3991. [Footnote 7] An officer who serves for less than 20 years is not entitled to retired pay.The nondisability retirement system is noncontributory, in that neither the service member nor the Federal Government makes periodic contributions to any fund during the period of active service; instead, retired pay is funded by annual appropriations. Military Retirement Hearings, at 5. In contrast, since 1957, military personnel have been required to contribute to the Social Security System. Pub.L. 84-881, 70 Stat. 870. See 42 U.S.C. §§ 410(1) and (m). Upon satisfying the necessary age requirements, the Army retiree, the Page 453 U. S. 215 spouse, an ex-spouse who was married to the retiree for at least 10 years, and any dependent children are entitled to Social Security benefits. See 42 U.S.C. § 402(a) to(f) (1976 ed. and Supp. IV).Military retired pay terminates with the retired service member's death, and does not pass to the member's heirs. The member, however, may designate a beneficiary to receive any arrearages that remain unpaid at death. 10 U.S.C. § 2771. In addition, there are statutory schemes that allow a service member to set aside a portion of the member's retired pay for his or her survivors. The first such scheme, now known as the Retired Serviceman's Family Protection Plan (RSFPP), was established in 1953. Act of Aug. 8, 1953, 67 Stat. 501, current version at 10 U.S.C. §§ 1431-1446 (1976 ed. and Supp. IV). Under the RSFPP, the military member could elect to reduce his or her retired pay in order to provide, at death, an annuity for a surviving spouse or child. Participation in the RSFPP was voluntary, and the participating member, prior to receiving retired pay, could revoke the election in order"to reflect a change in the marital or dependency status of the member or his family that is caused by death, divorce, annulment. remarriage, or acquisition of a child. . . ."§ 1431(c). Further, deductions from retired pay automatically cease upon the death or divorce of the service member's spouse. § 1434(c).Because the RSFPP was self-financing, it required the deduction of a substantial portion of the service member's retired pay; consequently, only about 15% of eligible military retirees participated in the plan. See H.R.Rep. No. 92-481, pp. 4-5 (1971); S.Rep. No. 92-1089, p. 11 (1972). In order to remedy this situation. Congress enacted the Survivor Benefit Plan (SBP) in 1972. Pub.L. 92-425, 86 Stat. 706, codified as amended at 10 U.S.C. §§ 1447-1455 (1976 ed. and Supp. IV). Participation in this plan is automatic unless the service member chooses to opt out. § 1448(a). Page 453 U. S. 216 The SBP is not entirely self-financing; instead, the Government contributes to the plan, thereby rendering participation in the SBP less expensive for the service member than participation in the RSFPP. Participants in the RSFPP were given the option of continuing under that plan or of enrolling in the SBP. Pub.L. 92-425, § 3, 86 Stat. 711, as amended by Pub.L. 93-155, § 804, 87 Stat. 615.IIAppellant Richard John McCarty and appellee Patricia Ann McCarty were married in Portland, Ore., on March 23, 1957, while appellant was in his second year in medical school at the University of Oregon. During his fourth year in medical school, appellant commenced active duty in the United States Army. Upon graduation, he was assigned to successive tours of duty in Pennsylvania, Hawaii, Washington, D.C. California, and Texas. After completing his duty in Texas, appellant was assigned to Letterman Hospital on the Presidio Military Reservation in San Francisco, where he became Chief of Cardiology. At the time this suit was instituted in 1976, appellant held the rank of Colonel, and had served approximately 18 of the 20 years required under 10 U.S.C. § 3911 for retirement with pay.Appellant and appellee separated on October 31, 1976. On December 1 of that year, appellant filed a petition in the Superior Court of California in and for the City and County of San Francisco requesting dissolution of the marriage. Under California law, a court granting dissolution of a marriage must divide "the community property and the quasi-community property of the parties." Cal.Civ.Code Ann. § 4800(a) (West Supp.1981). Like seven other States, California treats all property earned by either spouse during the marriage as community property; each spouse is deemed to make an equal contribution to the marital enterprise, and therefore each is entitled to share equally in its assets. See Page 453 U. S. 217 Hisquierdo v. Hisquierdo, 439 U. S. 572, 439 U. S. 577-578 (1979). "Quasi-community property" is defined as"all real or personal property, wherever situated heretofore or hereafter acquired . . . [b]y either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in [California] at the time of its acquisition."Cal.Civ.Code Ann. § 4803 (West Supp.1981). Upon dissolution of a marriage, each spouse has an equal and absolute right to a half interest in all community and quasi-community property; in contrast, each spouse retains his or her separate property, which includes assets the spouse owned before marriage or acquired separately during marriage through gift. See Hisquierdo, 439 U.S. at 439 U. S. 578.In his dissolution petition, appellant requested that all listed assets, including "[a]ll military retirement benefits," be confirmed to him as his separate property. App. 2. In her response, appellee also requested dissolution of the marriage, but contended that appellant had no separate property, and that therefore his military retirement benefits were "subject to disposition by the court in this proceeding." [Footnote 8] Id. at 9. On November 23, 1977, the Superior Court entered findings of fact and conclusions of law holding that appellant was entitled to an interlocutory judgment dissolving Page 453 U. S. 218 the marriage. Id. at 39, 44. Appellant was awarded custody of the couple's three minor children; appellee was awarded spousal support. The court found that the community property of the parties consisted of two automobiles, cash, the cash value of life insurance policies, and an uncollected debt. Id. at 42. It allocated this property between the parties. Id. at 45. In addition, the court held that appellant's "military pension and retirement rights" were subject to division as quasi-community property. Ibid. Accordingly, the court ordered appellant to pay to appellee, so long as she lives,"that portion of his total monthly pension or retirement payment which equals one-half (1/2) of the ratio of the total time between marriage and separation during which [appellant] was in the United States Army to the total number of years he has served with the . . . Army at the time of retirement."Id. at 43-44. The court retained jurisdiction "to make such determination at that time and to supervise distribution. . . ." Ibid. On September 30, 1978, appellant retired from the Army after 20 years of active duty and began receiving retired pay; under the decree of dissolution, appellee was entitled to approximately 45% of that retired pay.Appellant sought review of the portion of the Superior Court's decree that awarded appellee an interest in the retired pay. The California Court of Appeal, First Appellate District, however, affirmed the award. App. to Juris.Statement 32. In so ruling, the court declined to accept appellant's contention that, because the federal scheme of military retirement benefits preempts state community property laws, the Supremacy Clause, U.S.Const., Art. VI, cl. 2, precluded the trial court from awarding appellee a portion of his retired pay. [Footnote 9] The court noted that this precise contention had Page 453 U. S. 219 been rejected in In re Fithian, 10 Cal. 3d 592, 517 P.2d 449, cert. denied, 419 U.S. 825 (1974). [Footnote 10] Furthermore, the court concluded that the result in Fithian had not been called into question by this Court's subsequent decision in Hisquierdo v. Hisquierdo, supra, where it was held that benefits payable under the federal Railroad Retirement Act of 1974 could not be divided under state community property law. See also Gorman v. Gorman, 90 Cal. App. 3d 454, 153 Cal. Rptr. 479 (1979). [Footnote 11]The California Supreme Court denied appellant's petition for hearing. App. to Juris.Statement 83.We postponed jurisdiction. 449 U.S. 917 (1980). We have now concluded that this case properly falls within our appellate jurisdiction, [Footnote 12] and we therefore proceed to the merits. Page 453 U. S. 220IIIThis Court repeatedly has recognized that "[t]he whole subject of the domestic relations of husband and wife . . . belongs to the laws of the States and not to the laws of the United States.'" Hisquierdo, 439 U.S. at 439 U. S. 581, quoting In re Burrus, 136 U. S. 586, 136 U. S. 593-594 (1890). Thus,"'[s]tate family and family property law must do major damage' to 'clear and substantial' federal interests before the Supremacy Clause will demand that state law be overridden."Hisquierdo, 439 U.S. at 439 U. S. 581, with references to United States v. Yazell, 382 U. S. 341, 382 U. S. 352 (1966). See also Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 451 U. S. 522 (1981). In Hisquierdo, we concluded that California's application of community property principles to Railroad Retirement Act benefits worked such an injury to federal interests. The "critical terms" of the federal statute relied upon in reaching that conclusion included provisions establishing "a specified beneficiary protected by a flat prohibition against attachment and anticipation," see 45 U.S.C. § 231m, and a limited community property concept that terminated upon divorce, see 45 U.S.C. § 231d. 439 U.S. at 439 U. S. 582-585. Appellee argues that no such provisions are to be found in the statute presently under consideration, and that therefore Hisquierdo is inapposite. But Hisquierdo did not hold that only the particular statutory terms there considered would justify a finding Page 453 U. S. 221 of preemption; rather, it held that"[t]he pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require nonrecognition."Id. at 439 U. S. 583. It is to that twofold inquiry that we now turn.AAppellant argues that California's application of community property concepts to military retired pay conflicts with federal law in two distinct ways. He contends, first, that the California court's conclusion that retired pay is "awarded in return for services previously rendered," see Fithian, 10 Cal. 3d at 604, 517 P.2d at 457, ignores clear federal law to the contrary. The community property division of military retired pay rests on the premise that that pay, like a typical pension, represents deferred compensation for services performed during the marriage. Id. at 596, 517 P.2d at 451. But, appellant asserts, military retired pay, in fact, is current compensation for reduced, but currently rendered, services; accordingly, even under California law, that pay may not be treated as community property to the extent that it is earned after the dissolution of the marital community, since the earnings of a spouse while living "separate and apart" are separate property. Cal.Civ.Code Ann. §§ 5118, 5119 (West 1970 and Supp.1981).Appellant correctly notes that military retired pay differs in some significant respects from a typical pension or retirement plan. The retired officer remains a member of the Army, see United States v. Tyler, 105 U. S. 244 (1882), [Footnote 13] and Page 453 U. S. 222 continues to be subject to the Uniform Code of Military Justice, see 10 U.S.C. § 802 (4). See also Hooper v. United States, 164 Ct.Cl. 151, 326 F.2d 982, cert. denied, 377 U.S. 977 (1964). In addition, he may forfeit all or part of his retired pay if he engages in certain activities. [Footnote 14] Finally, the retired officer remains subject to recall to active duty by the Secretary of the Army "at any time." Pub.L. 96-513, § 106, 94 Stat. 2868. These factors have led several courts, including this one, to conclude that military retired pay is reduced compensation for reduced current services. In United States v. Tyler, 105 U.S. at 105 U. S. 245, the Court stated that retired pay is "compensation . . . continued at a reduced rate, and the connection is continued, with a retirement from active service only." [Footnote 15] Page 453 U. S. 223Having said all this, we need not decide today whether federal law prohibits a State from characterizing retired pay as deferred compensation, since we agree with appellant's alternative argument that the application of community property law conflicts with the federal military retirement scheme regardless of whether retired pay is defined as current or as deferred compensation. [Footnote 16] The statutory language is straightforward: Page 453 U. S. 224 "A member of the Army retired under this chapter is entitled to retired pay. . . ." 10 U.S. C § 3929. In Hisquierdo, 439 U.S. at 439 U. S. 584, we emphasized that, under the Railroad Retirement Act, a spouse of a retired railroad worker was entitled to a separate annuity that terminated upon divorce, see 45 U.S.C. § 231d(c)(3); in contrast, the military retirement system confers no entitlement to retired pay upon the retired service member's spouse. Thus, unlike the Railroad Retirement Act, the military retirement system does not embody even a limited "community property concept." Indeed, Congress has explicitly stated: "Historically, military retired pay has been a personal entitlement payable to the retired member himself as long as he lives." S.Rep. No. 1480, 90th Cong., 2d Sess., 6 (1968) (emphasis added).Appellee argues that Congress' use of the term "personal entitlement" in this context signifies only that retired pay ceases upon the death of the service member. But several features of the statutory schemes governing military pay demonstrate that Congress did not use the term in so limited a fashion. First, the service member may designate a beneficiary to receive any unpaid arrearages in retired pay upon his death. 10 U.S.C. § 2771. [Footnote 17] The service member is free Page 453 U. S. 225 to designate someone other than his spouse or ex-spouse as the beneficiary; further, the statute expressly provides that "[a] payment under this section bars recovery by any other person of the amount paid." § 2771(d). In Wissner v. Wissner, 338 U. S. 655 (1950), this Court considered an analogous statutory scheme. Under the National Service Life Insurance Act, an insured service member had the right to designate the beneficiary of his policy. Id. at 338 U. S. 658. Wissner held that California could not award a service member's widow half the proceeds of a life insurance policy, even though the source of the premium -- the member's Army pay -- was characterized as community property under California law. The Court reserved the question whether California is "entitled to call army pay community property," id. at 338 U. S. 657, n. 2, since it found that Congress had "spoken with force and clarity in directing that the proceeds belong to the named beneficiary, and no other." Id. at 338 U. S. 658. In the present context, Congress has stated with "force and clarity" that a beneficiary under § 2771 claims an interest in the retired Page 453 U. S. 226 pay itself, not simply in proceeds from a policy purchased with that pay. One commentator has noted: "If retired pay were community property, the retiree could not thus summarily deprive his wife of her interest in the arrearage." Goldberg, Is Armed Services Retired Pay Really Community Property?, 48 Cal.Bar J. 12, 17 (1973).Second, the language, structure, and legislative history of the RSFPP and the SBP also demonstrate that retired pay is a "personal entitlement." While retired pay ceases upon the death of the service member, the RSFPP and the SBP allow the service member to reduce his or her retired pay in order to provide an annuity for the surviving spouse or children. Under both plans, however, the service member is free to elect to provide no annuity at all, or to provide an annuity payable only to the surviving children, and not to the spouse. See 10 U.S.C. § 1434 (1976 ed. and Supp. IV) (RSFPP); § 1450 (1976 ed. and Supp. IV) (SBP). Here again, it is clear that, if retired pay were community property, the service member could not so deprive the spouse of his or her interest in the property. [Footnote 18] But we need not rely on this implicit conflict alone, for both the language of the statutes [Footnote 19] and their legislative history make it clear that the Page 453 U. S. 227 decision whether to leave an annuity is the service member's decision alone because retired pay is his or her personal entitlement. It has been stated in Congress that"[t]he rights in retirement pay accrue to the retiree and, ultimately, the decision is his as to whether or not to leave part of that retirement pay as an annuity to his survivors."H.R.Rep. No. 9281, p. 9 (1971). [Footnote 20] California's community property division of retired pay is simply inconsistent with this explicit expression of congressional intent that retired pay accrue to the retiree.Moreover, such a division would have the anomalous effect of placing an ex-spouse in a better position than that of a widower or a widow under the RSFPP and the SBP. [Footnote 21] Appellee Page 453 U. S. 228 argues that"Congress' concern for the welfare of soldiers' widows sheds little light on Congress' attitude toward the community treatment of retirement benefits,"quoting Fithian, 10 Cal. 3d at 600, 517 P.2d at 454. But this argument fails to recognize that Congress deliberately has chosen to favor the widower or widow over the ex-spouse. An ex-spouse is not an eligible beneficiary of an annuity under either plan. 10 U.S.C. § 1434(a) (RSFPP); §§ 1447(3) and 1450(a) (SBP). In addition, under the RSFPP, deductions from retired pay for a spouse's annuity automatically cease upon divorce, § 1434(c), so as "[t]o safeguard the participants' future retired pay when . . . divorce occurs. . . ." S.Rep. No. 1480, 90th Cong., 2d Sess., 13 (1968). While the SBP does not expressly provide that annuity deductions cease upon divorce, the legislative history indicates that Congress' policy remained unchanged. The SBP, which was referred to as the "widow's equity bill," 118 Cong.Rec. 29811 (1972) (statement of Sen. Beall), was enacted because of Congress' concern over the number of widows left without support through low participation in the RSFPP, not out of concern for ex-spouses. See H.R.Rep. No. 9281, pp. 4-5 (1971); S.Rep. No. 92-1089, p. 11 (1972).Third, and finally, it is clear that Congress intended that military retired pay "actually reach the beneficiary." See Hisquierdo, 439 U.S. at 439 U. S. 584. Retired pay cannot be attached to satisfy a property settlement incident to the dissolution of a marriage. [Footnote 22] In enacting the SBP, Congress rejected Page 453 U. S. 229 a provision in the House bill, H.R. 10670, that would have allowed attachment of up to 50% of military retired pay to comply with a court order in favor of a spouse, former spouse, or child. See H.R.Rep. No. 92-481 at 1; S.Rep. No. 91089 at 25. The House Report accompanying H.R. 10670 noted that, under Buchanan v. Alexander, 4 How. 20 (1845), and Applegate v. Applegate, 39 F. Supp. 887 (ED Va.1941), military pay could not be attached so long as it was in the Government's hands; [Footnote 23] thus, this clause of H.R. 10670 represented a "drastic departure" from current law, but one that the House Committee on Armed Services believed to be necessitated by the difficulty of enforcing support orders. H.R.Rep. No. 92-481 at 17-18. Although this provision passed the House, it was not included in the Senate version of the bill. See S.Rep. No. 92-1089 at 25. Thereafter, the House acceded to the Senate's view that the attachment provision would unfairly"single out military retirees for a form of enforcement of court orders imposed on no other employees or retired employees of the Federal Government."118 Cong.Rec. 30151 (1972) (remarks of Rep. Pike); S.Rep. No. 92-1089 Page 453 U. S. 230 at 25. Instead, Congress determined that the problem of the attachment of military retired pay should he considered in the context of "legislation that might require all Federal pays to be subject to attachment." Ibid.; 118 Cong.Rec. 30151 (1972) (remarks of Rep. Pike).Subsequently, comprehensive legislation was enacted. In 1975, Congress amended the Social Security Act to provide that all federal benefits, including those payable to members of the Armed Services, may be subject to legal process to enforce child support or alimony obligations. Pub.L. 93-647, § 101(a). 88 Stat. 2357, 42 U.S.C. § 659. In 1977, however, Congress added a new definitional section (§ 462(c)) providing that the term "alimony" in § 659(a)"does not include any payment or transfer of property . . . in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses."Pub.L. 95-30, § 501(d), 91 Stat. 159, 42 U.S.C. § 662(c) (1976 ed., Supp. IV). As we noted in Hisquierdo, it is"logical to conclude that Congress, in adopting § 462(c), thought that a family's need for support could justify garnishment, even though it deflected other federal benefits from their intended goals, but that community property claims, which are not based on need, could not do so."439 U.S. at 439 U. S. 587.Hisquierdo also pointed out that Congress might conclude that this distinction between support and community property claims is "undesirable." Id. at 439 U. S. 590. Indeed, Congress recently enacted legislation that requires that Civil Service retirement benefits be paid to an ex-spouse to the extent provided for in"the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation."Pub.L. 95-366, §1(a), 92 Stat. 600, 5 U.S.C. § 8345(j)(1) (1976 ed., Supp. IV). In an even more extreme recent step, Congress amended the Foreign Service retirement legislation to provide that, as a matter of federal law, an ex-spouse is entitled Page 453 U. S. 231 to a pro rata share of Foreign Service retirement benefits. [Footnote 24] Thus, the Civil Service amendments require the United States to recognize the community property division of Civil Service retirement benefits by a state court, while the Foreign Service amendments establish a limited federal community property concept. Significantly, however, while similar legislation affecting military retired pay was introduced in the 96th Congress, none of those bills was reported out of committee. [Footnote 25] Thus, in striking contrast to its amendment Page 453 U. S. 232 of the Foreign Service and Civil Service retirement systems, Congress has neither authorized nor required the community property division of military retired pay. On the contrary, that pay continues to be the personal entitlement of the retiree.BWe conclude, therefore, that there is a conflict between the terms of the federal retirement statutes and the community property right asserted by appellee here. But "[a] mere conflict in words is not sufficient"; the question remains whether the "consequences [of that community property right] sufficiently injure the objectives of the federal program to require nonrecognition." Hisquierdo, 439 U.S. at 439 U. S. 581-583. This inquiry, however, need be only a brief one, for it is manifest that the application of community property principles to military retired pay threatens grave harm to "clear and substantial" federal interests. See United States v. Yazell, 382 U.S. at 382 U. S. 352. Under the Constitution, Congress has the power "[t]o raise and support Armies," "[t]o provide and maintain a Navy," and "[t]o makes Rules for the Government and Regulation of the land and naval Forces." U.S.Const., Art. I, § 8, cls. 12, 13, and 14. See generally Rostker v. Goldberg, ante at 453 U. S. 59. Pursuant to this grant of authority, Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management Page 453 U. S. 233 needs of the active military forces. The community property division of retired pay has the potential to frustrate each of these objectives.In the first place, the community property interest appellee seeks "promises to diminish that portion of the benefit Congress has said should go to the retired [service member] alone." See Hisquierdo, 439 U.S. at 439 U. S. 590. State courts are not free to reduce the amounts that Congress has determined are necessary for the retired member. Furthermore, the community property division of retired pay may disrupt the carefully balanced scheme Congress has devised to encourage a service member to set aside a portion of his or her retired pay as an annuity for a surviving spouse or dependent children. By diminishing the amount available to the retiree, a community property division makes it less likely that the retired service member will choose to reduce his or her retired pay still further by purchasing an annuity for the surviving spouse, if any, or children. In McCune v. Essig, 199 U. S. 382 (1905), the Court held that federal law, which permitted a widow to patent federal land entered by her husband, prevailed over the interest in the patent asserted by the daughter under state inheritance law; the Court noted that the daughter's contention "reverses the order of the statute and gives the children an interest paramount to that of the widow through the laws of the State." Id. at 199 U. S. 389. So here, the right appellee asserts "reverses the order of the statute" by giving the ex-spouse an interest paramount to that of the surviving spouse and children of the service member; indeed, at least one court (in a noncommunity property State) has gone so far as to hold that the heirs of the ex-spouse may even inherit her interest in military retired pay. See In re Miller, ___ Mont. ___, 609 P.2d 1185 (1980), cert. pending sub nom. Miller v. Miller, No. 80-291. Clearly, "[t]he law of the State is not competent to do this." McCune v. Essig, 199 U.S. at 199 U. S. 389. Page 453 U. S. 234The potential for disruption of military personnel management is equally clear. As has been noted above, the military retirement system is designed to serve as an inducement for enlistment and reenlistment, to create an orderly career path, and to ensure "youthful and vigorous" military forces. [Footnote 26] While conceding that there is a substantial interest in attracting and retaining personnel for the military forces, appellee argues that this interest will not be impaired by allowing a State to apply its community property laws to retired military personnel in the same manner that it applies those laws to civilians. Yet this argument ignores two essential characteristics of military service: the military forces are national in operation; and their members, unlike civilian employees, cf. Hisquierdo, are not free to choose their place of residence. Appellant, for instance, served tours of duty in four States and the District of Columbia. The value of retired pay as an inducement for enlistment or reenlistment is obviously diminished to the extent that the service member recognizes that he or she may be involuntarily transferred to a State that will divide that pay upon divorce. In Free v. Bland, Page 453 U. S. 235 369 U. S. 663 (1962), the Court held that state community property law could not override the survivorship provision of a federal savings bond, since it was "[o]ne of the inducements selected," id. at 369 U. S. 669, to make purchase of such bonds attractive; similarly, retired pay is one of the inducements selected to make military service attractive, and the application of state community property law thus "interfere[s] directly with a legitimate exercise of the power of the Federal Government." Ibid. .The interference with the goals of encouraging orderly promotion and a youthful military is no less direct. Here, as in the Railroad Retirement Act context, "Congress has fixed an amount thought appropriate to support an employee's old age and to encourage the employee to retire." See Hisquierdo, 439 U.S. at 439 U. S. 585. But the reduction of retired pay by a community property award not only discourages retirement by reducing the retired pay available to the service member, but gives him a positive incentive to keep working, since current income after divorce is not divisible as community property. See Cal.Civ.Code Ann. §§ 5118, 5119 (West 1970 and Supp.1981). Congress has determined that a youthful military is essential to the national defense; it is not for States to interfere with that goal by lessening the incentive to retire created by the military retirement system.IVWe recognize that the plight of an ex-spouse of a retired service member is often a serious one. See Hearing on H.R. 2817, H.R. 3677, and H.R. 6270 before the Military Compensation Subcommittee of the House Committee on Armed Services, 96th Cong., 2d Sess. (1980). That plight may be mitigated to some extent by the ex-spouse's right to claim Social Security benefits, cf. Hisquierdo, 439 U.S. at 439 U. S. 590, and to garnish military retired pay for the purposes of support. Nonetheless, Congress may well decide, as it has in the Civil Service and Foreign Service contexts, that more protection Page 453 U. S. 236 should be afforded a former spouse of a retired service member. This decision, however is for Congress alone. We very recently have reemphasized that in no area has the Court accorded Congress greater deference than in the conduct and control of military affairs. See Rostker v. Goldberg, ante at 453 U. S. 64-65. Thus, the conclusion that we reached in Hisquierdo follows a fortiori here: Congress has weighed the matter, and "[i]t is not the province of state courts to strike a balance different from the one Congress has struck." 439 U.S. at 439 U. S. 590.The judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMcCarty v. McCarty, 453 U.S. 210 (1981)McCarty v. McCartyNo. 80-5Argued March 2, 1981Decided June 26, 1981453 U.S. 210SyllabusA regular commissioned officer of the United States Army who retires after 20 years of service is entitled to retired pay. Retired pay terminates with the officer's death, although he may designate a beneficiary to receive any arrearages that remain unpaid at death. In addition, there are statutory plans that allow the officer to set aside a portion of his retired pay for his survivors. Appellant, a Regular Army Colonel, filed a petition in California Superior Court for dissolution of his marriage to appellee. At the time, he had served approximately 18 of the 20 years required for retirement with pay. Under California law, each spouse, upon dissolution of a marriage, has an equal and absolute right to a half interest in all community and quasi-community property, but retains his or her separate property. In his petition, appellant requested, inter alia, that his military retirement benefits be confirmed to him as his separate property. The Superior Court held, however, that such benefits were subject to division as quasi-community property, and accordingly ordered appellant to pay to appellee a specified portion of the benefits upon retirement. Subsequently, appellant retired and began receiving retired pay; under the dissolution decree, appellee was entitled to approximately 45% of the retired pay. On review of this award, the California Court of Appeal affirmed, rejecting appellant's contention that, because the federal scheme of military retirement benefits preempts state community property law, the Supremacy Clause precluded the trial court from awarding appellee a portion of his retired pay.Held: Federal law precludes a state court from dividing military retired pay pursuant to state community property laws. Pp. 453 U. S. 220-236.(a) There is a conflict between the terms of the federal military retirement statutes and the community property right asserted by appellee. The military retirement system confers no entitlement to retired pay upon the retired member's spouse, and does not embody even a limited "community property concept." Rather, the language, structure, and history of the statutes make it clear that retired pay continues to be the personal entitlement of the retiree. Pp. 453 U. S. 221-232.(b) Moreover, the application of community property principles to military retired pay threatens grave harm to "clear and substantial" Page 453 U. S. 211 federal interests. Thus, the community property division of retired pay, by reducing the amounts that Congress has determined are necessary for the retired member, has the potential to frustrate the congressional objective of providing for the retired service member. In addition, such a division has the potential to interfere with the congressional goals of having the military retirement system serve as an inducement for enlistment and reenlistment and as an encouragement to orderly promotion and a youthful military. Pp. 453 U. S. 232-235.Reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BRENNAN and STEWART, JJ., joined, post, p. 453 U. S. 236.

1996_95-728

subject matter, even if it is equivalent to the matter expressly claimed. But petitioner reaches too far in arguing that any such surrender establishes a bright line beyond which no equivalents may be claimed, and that the reason for an amendment during patent prosecution is therefore irrelevant to any subsequent estoppel. There are a variety of reasons why the PTO may request a change in claim language, and if the patent holder demonstrates that an amendment had a purpose unrelated to patentability, a court must consider that purpose in order to decide whether an estoppel is precluded. Where the patent holder is unable to establish such a purpose, the court should presume that the purpose behind the required amendment is such that prosecution history estoppel would apply. Here, it is undisputed that the upper limit of 9.0 pH was added to the '746 patent in order to distinguish the Booth patent, but the record before this Court does not reveal the reason for adding the lower 6.0 pH limit. It is therefore impossible to tell whether the latter reason could properly avoid an estoppel. Pp. 30-34.(e) The Court rejects petitioner's argument that Graver Tank requires judicial exploration of the intent of the alleged infringer or a case's other equities before allowing application of the doctrine of equivalents. Although Graver Tank certainly leaves room for the inclusion of intent-based elements in the doctrine, the Court does not read the case as requiring proof of intent. The better view, and the one consistent with Graver Tank's predecessors, see, e. g., Winans v. Denmead, 15 How. 330, 343, and the objective approach to infringement, is that intent plays no role in the doctrine's application. Pp. 34-36.(f) The Court also rejects petitioner's proposal that in order to minimize conflict with the notice function of patent claims, the doctrine of equivalents should be limited to equivalents that are disclosed within the patent itself. Insofar as the question under the doctrine is whether an accused element is equivalent to a claimed element, the proper time for evaluating equivalency-and knowledge of interchangeability between elements-is at the time of infringement, not at the time the patent was issued. P. 37.(g) The Court declines to consider whether application of the doctrine of equivalents is a task for the judge or for the jury, since resolution of that question is not necessary to answer the question here presented. Pp. 37-39.(h) In the Court's view, the particular linguistic framework used to determine "equivalence," whether the so-called "triple identity" test or the "insubstantial differences" test, is less important than whether the test is probative of the essential inquiry: Does the accused product or process contain elements identical or equivalent to each claimed element of the patented invention? Different linguistic frameworks20Syllabusmay be more suitable to different cases, depending on their particular facts. The Court leaves it to the Federal Circuit's sound judgment in this area of its special expertise to refine the formulation of the test for equivalence in the orderly course of case-by-case determinations. pp.39-40.2. Because the Federal Circuit did not consider all of the requirements of the doctrine of equivalents as described by the Court in this case, particularly as related to prosecution history estoppel and the preservation of some meaning for each element in a claim, further proceedings are necessary. Pp. 40-41.62 F.3d 1512, reversed and remanded.THOMAS, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which KENNEDY, J., joined, post, p. 41.Richard G. Taranto argued the cause for petitioner. With him on the briefs were H. Bartow Farr III and J. Robert Chambers.Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Days, Assistant Attorney General Bingaman, Cornelia T. L. Pillard, Nancy J. Linck, and Albin F. Drost.David E. Schmit argued the cause and filed a brief for respondent. **Briefs of amici curiae urging reversal were filed for Gateway Technologies, Inc., by Richard Grant Lyon; for GHZ Equipment Co. by Ronald D. Maines and Richard G. Wilkins; for the Information Technology Industry Council et al. by Joel M. Freed, Jerrold J. Ganzfried, John F. Cooney, and William D. Coston; for the Intellectual Property Owners by Carter G. Phillips, Mark E. Haddad, and Joseph R. Guerra; for MCI Telecommunications Corp. by Paul M. Smith and Nory Miller; for Micron Separations, Inc., by Steven M. Bauer and John J. Cotter; and for Seagate Technology, Inc., et al. by Carrie L. Walthour, Karl A. Limbach, Deborah BaileyWells, and Edward P. Heller III.Briefs of amici curiae urging affirmance were filed for the Biotechnology Industry Organization by Charles E. Ludlam; for Chiron Corp. by Donald S. Chisum; for the Dallas-Fort Worth Intellectual Property Law Association by Lawrence J. Bassuk; for Litton Systems, Inc., by Laurence21JUSTICE THOMAS delivered the opinion of the Court. Nearly 50 years ago, this Court in Graver Tank & Mfg.Co. v. Linde Air Products Co., 339 U. S. 605 (1950), set out the modern contours of what is known in patent law as the "doctrine of equivalents." Under this doctrine, a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is "equivalence" between the elements of the accused product or process and the claimed elements of the patented invention. Id., at 609. Petitioner, which was found to have infringed upon respondent's patent under the doctrine of equivalents, invites us to speak the death of that doctrine. We decline that invitation. The significant disagreement within the Court of Appeals for the Federal Circuit concerning the application of Graver Tank suggests, however, that the doctrine is not free from confusion. We therefore will endeavor to clarify the proper scope of the doctrine.IThe essential facts of this case are few. Petitioner Warner-Jenkinson Co. and respondent Hilton Davis Chemical Co. manufacture dyes. Impurities in those dyes must be removed. Hilton Davis holds United States Patent No. 4,560,746 ('746 patent), which discloses an improved purification process involving "ultrafiltration." The '746 process filters impure dye through a porous membrane at certainH. Tribe and Jonathan S. Massey; and for the Ohio State Bar Association by Eugene P. Whetzel and Albert L. Bell.Briefs of amici curiae were filed for the American Automobile Manufacturers Association by D. Dennis Allegretti, Phillip D. Brady, and Andrew D. Koblenz; for the American Intellectual Property Law Association by Robert J. Baechtold, Stevan J. Bosses, Nicholas M. Cannella, Charles L. Gholz, and Roger W Parkhurst; for the Chemical Manufacturers Association by Robert A. Armitage and Michael P. Walls; and for the Licensing Executive Society (D. S. A. and Canada), Inc., by Gayle Parker and James W Gould.22pressures and pH levels,l resulting in a high purity dye product.The '746 patent issued in 1985. As relevant to this case, the patent claims as its invention an improvement in the ultrafiltration process as follows:"In a process for the purification of a dye ... the improvement which comprises: subjecting an aqueous solution ... to ultrafiltration through a membrane having a nominal pore diameter of 5-15 Angstroms under a hydrostatic pressure of approximately 200 to 400 p.s.i.g., at a pH from approximately 6.0 to 9.0, to thereby cause separation of said impurities from said dye .... " App. 36-37 (emphasis added).The inventors added the phrase "at a pH from approximately 6.0 to 9.0" during patent prosecution. At a minimum, this phrase was added to distinguish a previous patent (the "Booth" patent) that disclosed an ultrafiltration process operating at a pH above 9.0. The parties disagree as to why the low-end pH limit of 6.0 was included as part of the claim.21 The pH, or power (exponent) of Hydrogen, of a solution is a measure of its acidity or alkalinity. A pH of 7.0 is neutral; a pH below 7.0 is acidic; and a pH above 7.0 is alkaline. Although measurement of pH is on a logarithmic scale, with each whole number difference representing a tenfold difference in acidity, the practical significance of any such difference will often depend on the context. Pure water, for example, has a neutral pH of 7.0, whereas carbonated water has an acidic pH of 3.0, and concentrated hydrochloric acid has a pH approaching 0.0. On the other end of the scale, milk of magnesia has a pH of 10.0, whereas household ammonia has a pH of 11.9. 21 Encyclopedia Americana 844 (Int'l ed. 1990).2 Petitioner contends that the lower limit was added because below a pH of 6.0 the patented process created "foaming" problems in the plant and because the process was not shown to work below that pH level. Brief for Petitioner 4, n. 5,37, n. 28. Respondent counters that the process was successfully tested to pH levels as low as 2.2 with no effect on the process because of foaming, but offers no particular explanation as to why the lower level of 6.0 pH was selected. Brief for Respondent 34, n. 34.23In 1986, Warner-Jenkinson developed an ultrafiltration process that operated with membrane pore diameters assumed to be 5-15 Angstroms, at pressures of 200 to nearly 500 p. s. i. g., and at a pH of 5.0. Warner-Jenkinson did not learn of the '746 patent until after it had begun commercial use of its ultrafiltration process. Hilton Davis eventually learned of Warner-Jenkinson's use of ultrafiltration and, in 1991, sued Warner-Jenkinson for patent infringement.As trial approached, Hilton Davis conceded that there was no literal infringement, and relied solely on the doctrine of equivalents. Over Warner-Jenkinson's objection that the doctrine of equivalents was an equitable doctrine to be applied by the court, the issue of equivalence was included among those sent to the jury. The jury found that the '746 patent was not invalid and that Warner-Jenkinson infringed upon the patent under the doctrine of equivalents. The jury also found, however, that Warner-Jenkinson had not intentionally infringed, and therefore awarded only 20% of the damages sought by Hilton Davis. The District Court denied Warner-Jenkinson's post-trial motions, and entered a permanent injunction prohibiting Warner-Jenkinson from practicing ultrafiltration below 500 p. s. i. g. and below 9.01 pH. A fractured en banc Court of Appeals for the Federal Circuit affirmed. 62 F.3d 1512 (1995).The majority below held that the doctrine of equivalents continues to exist and that its touchstone is whether substantial differences exist between the accused process and the patented process. Id., at 1521-1522. The court also held that the question of equivalence is for the jury to decide and that the jury in this case had substantial evidence from which it could conclude that the Warner-Jenkinson process was not substantially different from the ultrafiltration process disclosed in the '746 patent. Id., at 1525.There were three separate dissents, commanding a total of 5 of 12 judges. Four of the five dissenting judges viewed the doctrine of equivalents as allowing an improper expan-24sion of claim scope, contrary to this Court's numerous holdings that it is the claim that defines the invention and gives notice to the public of the limits of the patent monopoly. Id., at 1537-1538 (opinion of Plager, J.). The fifth dissenter, the late Judge Nies, was able to reconcile the prohibition against enlarging the scope of claims and the doctrine of equivalents by applying the doctrine to each element of a claim, rather than to the accused product or process "overall." Id., at 1574. As she explained it: "The 'scope' is not enlarged if courts do not go beyond the substitution of equivalent elements." Ibid. All of the dissenters, however, would have found that a much narrowed doctrine of equivalents may be applied in whole or in part by the court. Id., at 1540-1542 (opinion of Plager, J.); id., at 1579 (opinion of Nies, J.).We granted certiorari, 516 U. S. 1145 (1996), and now reverse and remand.IIIn Graver Tank we considered the application of the doctrine of equivalents to an accused chemical composition for use in welding that differed from the patented welding material by the substitution of one chemical element. 339 U. S., at 610. The substituted element did not fall within the literal terms of the patent claim, but the Court nonetheless found that the "question which thus emerges is whether the substitution [of one element for the other] ... is a change of such substance as to make the doctrine of equivalents inapplicable; or conversely, whether under the circumstances the change was so insubstantial that the trial court's invocation of the doctrine of equivalents was justified." Ibid. The Court also described some of the considerations that go into applying the doctrine of equivalents:"What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is25not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was." Id., at 609.Considering those factors, the Court viewed the difference between the chemical element claimed in the patent and the substitute element to be "colorable only," and concluded that the trial court's judgment of infringement under the doctrine of equivalents was proper. Id., at 612.APetitioner's primary argument in this Court is that the doctrine of equivalents, as set out in Graver Tank in 1950, did not survive the 1952 revision of the Patent Act, 35 U. s. C. § 100 et seq., because it is inconsistent with several aspects of that Act. In particular, petitioner argues: (1) The doctrine of equivalents is inconsistent with the statutory requirement that a patentee specifically "claim" the invention covered by a patent, § 112; (2) the doctrine circumvents the patent reissue process-designed to correct mistakes in drafting or the like-and avoids the express limitations on that process, §§ 251-252; (3) the doctrine is inconsistent with the primacy of the Patent and Trademark Office (PTO) in setting the scope of a patent through the patent prosecution process; and (4) the doctrine was implicitly rejected as a general matter by Congress' specific and limited inclusion of the doctrine26in one section regarding "means" claiming, § 112, , 6. All but one of these arguments were made in Graver Tank in the context of the 1870 Patent Act, and failed to command a majority.3The 1952 Patent Act is not materially different from the 1870 Act with regard to claiming, reissue, and the role of the PTO. Compare, e. g., 35 U. S. C. § 112 ("The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention") with the Consolidated Patent Act of 1870, ch. 230, § 26, 16 Stat. 198, 201 (the applicant "shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery"). Such minor differences as exist between those provisions in the 1870 and the 1952 Acts have no bearing on the result reached in Graver Tank, and thus provide no basis for our overruling it. In the context of infringement, we have already held that pre-1952 precedent survived the passage of the 1952 Act. See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S. 336, 342 (1961) (new section defining infringement "left intact the entire3 Graver Tank was decided over a vigorous dissent. In that dissent, Justice Black raised the first three of petitioner's four arguments against the doctrine of equivalents. See 339 U. S., at 613-614 (doctrine inconsistent with statutory requirement to "distinctly claim" the invention); id., at 614-615 (patent reissue process available to correct mistakes); id., at 615, n. 3 (duty lies with the Patent Office to examine claims and to conform them to the scope of the invention; inventors may appeal Patent Office determinations if they disagree with result).Indeed, petitioner's first argument was not new even in 1950. Nearly 100 years before Graver Tank, this Court approved of the doctrine of equivalents in Winans v. Denmead, 15 How. 330 (1854). The dissent in Winans unsuccessfully argued that the majority result was inconsistent with the requirement in the 1836 Patent Act that the applicant "particularly 'specify and point' out what he claims as his invention," and that the patent protected nothing more. Id., at 347 (opinion of Campbell, J.).27body of case law on direct infringement"). We see no reason to reach a different result here.4Petitioner's fourth argument for an implied congressional negation of the doctrine of equivalents turns on the reference to "equivalents" in the "means" claiming provision of the 1952 Act. Section 112, , 6, a provision not contained in the 1870 Act, states:"An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof" (Emphasis added.)Thus, under this new provision, an applicant can describe an element of his invention by the result accomplished or the function served, rather than describing the item or element to be used (e. g., "a means of connecting Part A to Part B," rather than "a two-penny nail"). Congress enacted § 112, , 6, in response to Halliburton Oil Well Cementing Co. v. Walker, 329 U. S. 1 (1946), which rejected claims that "do not describe the invention but use 'conveniently functional language at the exact point of novelty.'" Id., at 8 (citation4 Petitioner argues that the evolution in patent practice from "central" claiming (describing the core principles of the invention) to "peripheral" claiming (describing the outer boundaries of the invention) requires that we treat Graver Tank as an aberration and abandon the doctrine of equivalents. Brief for Petitioner 43-45. We disagree. The suggested change in claiming practice predates Graver Tank, is not of statutory origin, and seems merely to reflect narrower inventions in more crowded arts. Also, judicial recognition of so-called "pioneer" patents suggests that the abandonment of "central" claiming may be overstated. That a claim describing a limited improvement in a crowded field will have a limited range of permissible equivalents does not negate the availability of the doctrine vel non.28omitted). See In re Donaldson Co., 16 F.3d 1189, 1194 (CA Fed. 1994) (Congress enacted predecessor of § 112, , 6, in response to Halliburton); In re Fuetterer, 319 F.2d 259, 264, n. 11 (CCPA 1963) (same); see also 2 D. Chisum, Patents § 8.04[2], pp. 63-64 (1996) (discussing 1954 commentary of then-Chief Patent Examiner P. J. Federico). Section 112, , 6, now expressly allows so-called "means" claims, with the proviso that application of the broad literal language of such claims must be limited to only those means that are "equivalen[t]" to the actual means shown in the patent specification. This is an application of the doctrine of equivalents in a restrictive role, narrowing the application of broad literal claim elements. We recognized this type of role for the doctrine of equivalents in Graver Tank itself. 339 U. S., at 608-609. The added provision, however, is silent on the doctrine of equivalents as applied where there is no literal infringement.Because § 112, , 6, was enacted as a targeted cure to a specific problem, and because the reference in that provision to "equivalents" appears to be no more than a prophylactic against potential side effects of that cure, such limited congressional action should not be overread for negative implications. Congress in 1952 could easily have responded to Graver Tank as it did to the Halliburton decision. But it did not. Absent something more compelling than the dubious negative inference offered by petitioner, the lengthy history of the doctrine of equivalents strongly supports adherence to our refusal in Graver Tank to find that the Patent Act conflicts with that doctrine. Congress can legislate the doctrine of equivalents out of existence any time it chooses. The various policy arguments now made by both sides are thus best addressed to Congress, not this Court.BWe do, however, share the concern of the dissenters below that the doctrine of equivalents, as it has come to be applied since Graver Tank, has taken on a life of its own, unbounded29by the patent claims. There can be no denying that the doctrine of equivalents, when applied broadly, conflicts with the definitional and public-notice functions of the statutory claiming requirement. Judge Nies identified one means of avoiding this conflict:"[A] distinction can be drawn that is not too esoteric between substitution of an equivalent for a component in an invention and enlarging the metes and bounds of the invention beyond what is claimed."Where a claim to an invention is expressed as a combination of elements, as here, 'equivalents' in the sobriquet 'Doctrine of Equivalents' refers to the equivalency of an element or part of the invention with one that is substituted in the accused product or process."This view that the accused device or process must be more than 'equivalent' overall reconciles the Supreme Court's position on infringement by equivalents with its concurrent statements that 'the courts have no right to enlarge a patent beyond the scope of its claims as allowed by the Patent Office.' [Citations omitted.] The 'scope' is not enlarged if courts do not go beyond the substitution of equivalent elements." 62 F. 3d, at 15731574 (dissenting opinion) (emphasis in original).We concur with this apt reconciliation of our two lines of precedent. Each element contained in a patent claim is deemed material to defining the scope of the patented invention, and thus the doctrine of equivalents must be applied to individual elements of the claim, not to the invention as a whole. It is important to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad playas to effectively eliminate that element in its entirety. So long as the doctrine of equivalents does not encroach beyond the limits just described, or beyond related30limits to be discussed infra this page and 31-34, 39, n. 8, and 39-40, we are confident that the doctrine will not vitiate the central functions of the patent claims themselves.IIIUnderstandably reluctant to assume this Court would overrule Graver Tank, petitioner has offered alternative arguments in favor of a more restricted doctrine of equivalents than it feels was applied in this case. We address each in turn.APetitioner first argues that Graver Tank never purported to supersede a well-established limit on nonliteral infringement, known variously as "prosecution history estoppel" and "file wrapper estoppel." See Bayer Aktiengesellschaft v. Duphar Int'Z Research B. V:, 738 F.2d 1237, 1238 (CA Fed. 1984). According to petitioner, any surrender of subject matter during patent prosecution, regardless of the reason for such surrender, precludes recapturing any part of that subject matter, even if it is equivalent to the matter expressly claimed. Because, during patent prosecution, respondent limited the pH element of its claim to pH levels between 6.0 and 9.0, petitioner would have those limits form bright lines beyond which no equivalents may be claimed. Any inquiry into the reasons for a surrender, petitioner claims, would undermine the public's right to clear notice of the scope of the patent as embodied in the patent file.We can readily agree with petitioner that Graver Tank did not dispose of prosecution history estoppel as a legal limit ation on the doctrine of equivalents. But petitioner reaches too far in arguing that the reason for an amendment during patent prosecution is irrelevant to any subsequent estoppel. In each of our cases cited by petitioner and by the dissent below, prosecution history estoppel was tied to amendments made to avoid the prior art, or otherwise to address a specific concern-such as obviousness-that arguably would have31rendered the claimed subject matter unpatentable. Thus, in Exhibit Supply Co. v. Ace Patents Corp., 315 U. S. 126 (1942), Chief Justice Stone distinguished inclusion of a limiting phrase in an original patent claim from the "very different" situation in which "the applicant, in order to meet objections in the Patent Office, based on references to the prior art, adopted the phrase as a substitute for the broader one" previously used. Id., at 136 (emphasis added). Similarly, in Keystone Driller Co. v. Northwest Engineering Corp., 294 U. S. 42 (1935), estoppel was applied where the initial claims were "rejected on the prior art," id., at 48, n. 6, and where the allegedly infringing equivalent element was outside of the revised claims and within the prior art that formed the basis for the rejection of the earlier claims, id., at 48.5It is telling that in each case this Court probed the reasoning behind the Patent Office's insistence upon a change in the claims. In each instance, a change was demanded because the claim as otherwise written was viewed as not describing a patentable invention at all-typically because what it described was encompassed within the prior art. But, as the United States informs us, there are a variety of other reasons why the PTO may request a change in claim language. Brief for United States as Amicus Curiae 22-235 See also Smith v. Magic City Kennel Club, Inc., 282 U. S. 784, 788 (1931) (estoppel applied to amended claim where the original "claim was rejected on the prior patent to" another); Computing Scale Co. of America v. Automatic Scale Co., 204 U. S. 609, 618-620 (1907) (initial claims rejected based on lack of invention over prior patents); Hubbell v. United States, 179 U. S. 77, 83 (1900) (patentee estopped from excluding a claim element where element was added to overcome objections based on lack of novelty over prior patents); Sutter v. Robinson, 119 U. S. 530, 541 (1886) (estoppel applied where, during patent prosecution, the applicant "was expressly required to state that [the device's] structural plan was old and not of his invention"); cf. Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 33 (1966) (noting, in a validity determination, that "claims that have been narrowed in order to obtain the issuance of a patent by distinguishing the prior art cannot be sustained to cover that which was previously by limitation eliminated from the patent").32(counsel for the PTO also appearing on the brief). And if the PTO has been requesting changes in claim language without the intent to limit equivalents or, indeed, with the expectation that language it required would in many cases allow for a range of equivalents, we should be extremely reluctant to upset the basic assumptions of the PTO without substantial reason for doing so. Our prior cases have consistently applied prosecution history estoppel only where claims have been amended for a limited set of reasons, and we see no substantial cause for requiring a more rigid rule invoking an estoppel regardless of the reasons for a change.6In this case, the patent examiner objected to the patent claim due to a perceived overlap with the Booth patent, which revealed an ultrafiltration process operating at a pH above 9.0. In response to this objection, the phrase "at a pH from approximately 6.0 to 9.0" was added to the claim. While it is undisputed that the upper limit of 9.0 was added in order to distinguish the Booth patent, the reason for adding the lower limit of 6.0 is unclear. The lower limit certainly did not serve to distinguish the Booth patent, which said nothing about pH levels below 6.0. Thus, while a lower limit of 6.0, by its mere inclusion, became a material element of the claim, that did not necessarily preclude the application of the doctrine of equivalents as to that element. See Hubbell v. United States, 179 U. S. 77, 82 (1900) (" '[A]ll [specified elements] must be regarded as material,'" though it remains an open "'question whether an omitted part is supplied by an equivalent device or instrumentality'" (citation omitted)).6 That petitioner's rule might provide a brighter line for determining whether a patentee is estopped under certain circumstances is not a sufficient reason for adopting such a rule. This is especially true where, as here, the PTO may have relied upon a flexible rule of estoppel when deciding whether to ask for a change in the first place. To change so substantially the rules of the game now could very well subvert the various balances the PTO sought to strike when issuing the numerous patents which have not yet expired and which would be affected by our decision.33Where the reason for the change was not related to avoiding the prior art, the change may introduce a new element, but it does not necessarily preclude infringement by equivalents of that element.7We are left with the problem, however, of what to do in a case like the one at bar, where the record seems not to reveal the reason for including the lower pH limit of 6.0. In our view, holding that certain reasons for a claim amendment may avoid the application of prosecution history estoppel is not tantamount to holding that the absence of a reason for an amendment may similarly avoid such an estoppel. Mindful that claims do indeed serve both a definitional and a notice function, we think the better rule is to place the burden on the patent holder to establish the reason for an amendment required during patent prosecution. The court then would decide whether that reason is sufficient to overcome prosecution history estoppel as a bar to application of the doctrine of equivalents to the element added by that amendment. Where no explanation is established, however, the court should presume that the patent applicant had a substantial reason related to patentability for including the limiting element added by amendment. In those circumstances, prosecution history estoppel would bar the application of the doctrine of equivalents as to that element. The presumption we have described, one subject to rebuttal if an appropriate reason for a required amendment is established, gives proper deference to the role of claims in defining an invention and providing public notice, and to the primacy of7We do not suggest that, where a change is made to overcome an objection based on the prior art, a court is free to review the correctness of that objection when deciding whether to apply prosecution history estoppel. As petitioner rightly notes, such concerns are properly addressed on direct appeal from the denial of a patent, and will not be revisited in an infringement action. Smith v. Magic City Kennel Club, Inc., supra, at 789-790. What is permissible for a court to explore is the reason (right or wrong) for the objection and the manner in which the amendment addressed and avoided the objection.34the PTO in ensuring that the claims allowed cover only subject matter that is properly patentable in a proffered patent application. Applied in this fashion, prosecution history estoppel places reasonable limits on the doctrine of equivalents, and further insulates the doctrine from any feared conflict with the Patent Act.Because respondent has not proffered in this Court a reason for the addition of a lower pH limit, it is impossible to tell whether the reason for that addition could properly avoid an estoppel. Whether a reason in fact exists, but simply was not adequately developed, we cannot say. On remand, the Federal Circuit can consider whether reasons for that portion of the amendment were offered or not and whether further opportunity to establish such reasons would be proper.BPetitioner next argues that even if Graver Tank remains good law, the case held only that the absence of substantial differences was a necessary element for infringement under the doctrine of equivalents, not that it was sufficient for such a result. Brief for Petitioner 32. Relying on Graver Tank's references to the problem of an "unscrupulous copyist" and "piracy," 339 U. S., at 607, petitioner would require judicial exploration of the equities of a case before allowing application of the doctrine of equivalents. To be sure, Graver Tank refers to the prevention of copying and piracy when describing the benefits of the doctrine of equivalents. That the doctrine produces such benefits, however, does not mean that its application is limited only to cases where those particular benefits are obtained.Elsewhere in Graver Tank the doctrine is described in more neutral terms. And the history of the doctrine as relied upon by Graver Tank reflects a basis for the doctrine not so limited as petitioner would have it. In Winans v. Denmead, 15 How. 330, 343 (1854), we described the doctrine35of equivalents as growing out of a legally implied term in each patent claim that "the claim extends to the thing patented, however its form or proportions may be varied." Under that view, application of the doctrine of equivalents involves determining whether a particular accused product or process infringes upon the patent claim, where the claim takes the form-half express, half implied-of "X and its equivalents."Machine Co. v. Murphy, 97 U. S. 120, 125 (1878), on which Graver Tank also relied, offers a similarly intent-neutral view of the doctrine of equivalents:"[T]he substantial equivalent of a thing, in the sense of the patent law, is the same as the thing itself; so that if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape."If the essential predicate of the doctrine of equivalents is the notion of identity between a patented invention and its equivalent, there is no basis for treating an infringing equivalent any differently from a device that infringes the express terms of the patent. Application of the doctrine of equivalents, therefore, is akin to determining literal infringement, and neither requires proof of intent.Petitioner also points to Graver Tank's seeming reliance on the absence of independent experimentation by the alleged infringer as supporting an equitable defense to the doctrine of equivalents. The Federal Circuit explained this factor by suggesting that an alleged infringer's behavior, be it copying, designing around a patent, or independent experimentation, indirectly reflects the substantiality of the differences between the patented invention and the accused device or process. According to the Federal Circuit, a person aiming to copy or aiming to avoid a patent is imagined to be at36least marginally skilled at copying or avoidance, and thus intentional copying raises an inference-rebuttable by proof of independent development-of having only insubstantial differences, and intentionally designing around a patent claim raises an inference of substantial differences. This explanation leaves much to be desired. At a minimum, one wonders however to distinguish between the intentional copyist making minor changes to lower the risk of legal action and the incremental innovator designing around the claims, yet seeking to capture as much as is permissible of the patented advance.But another explanation is available that does not require a divergence from generally objective principles of patent infringement. In both instances in Graver Tank where we referred to independent research or experiments, we were discussing the known interchangeability between the chemical compound claimed in the patent and the compound substituted by the alleged infringer. The need for independent experimentation thus could reflect knowledge-or lack thereof-of interchangeability possessed by one presumably skilled in the art. The known interchangeability of substitutes for an element of a patent is one of the express objective factors noted by Graver Tank as bearing upon whether the accused device is substantially the same as the patented invention. Independent experimentation by the alleged infringer would not always reflect upon the objective question whether a person skilled in the art would have known of the interchangeability between two elements, but in many cases it would likely be probative of such knowledge.Although Graver Tank certainly leaves room for petitioner's suggested inclusion of intent-based elements in the doctrine of equivalents, we do not read it as requiring them. The better view, and the one consistent with Graver Tank's predecessors and the objective approach to infringement, is that intent plays no role in the application of the doctrine of equivalents.37CFinally, petitioner proposes that in order to minimize conflict with the notice function of patent claims, the doctrine of equivalents should be limited to equivalents that are disclosed within the patent itself. A milder version of this argument, which found favor with the dissenters below, is that the doctrine should be limited to equivalents that were known at the time the patent was issued, and should not extend to after-arising equivalents.As we have noted, supra, at 36, with regard to the objective nature of the doctrine, a skilled practitioner's knowledge of the interchangeability between claimed and accused elements is not relevant for its own sake, but rather for what it tells the factfinder about the similarities or differences between those elements. Much as the perspective of the hypothetical "reasonable person" gives content to concepts such as "negligent" behavior, the perspective of a skilled practitioner provides content to, and limits on, the concept of "equivalence." Insofar as the question under the doctrine of equivalents is whether an accused element is equivalent to a claimed element, the proper time for evaluating equivalency-and thus knowledge of interchangeability between elements-is at the time of infringement, not at the time the patent was issued. And rejecting the milder version of petitioner's argument necessarily rejects the more severe proposition that equivalents must not only be known, but must also be actually disclosed in the patent in order for such equivalents to infringe upon the patent.IVThe various opinions below, respondents, and amici devote considerable attention to whether application of the doctrine of equivalents is a task for the judge or for the jury. However, despite petitioner's argument below that the doctrine should be applied by the judge, in this Court petitioner makes only passing reference to this issue. See Brief for38Petitioner 22, n. 15 ("If this Court were to hold in Markman v. Westview Instruments, Inc., No. 95-26 (argued Jan. 8, 1996), that judges rather than juries are to construe patent claims, so as to provide a uniform definition of the scope of the legally protected monopoly, it would seem at crosspurposes to say that juries may nonetheless expand the claims by resort to a broad notion of 'equivalents' "); Reply Brief for Petitioner 20 (whether judge or jury should apply the doctrine of equivalents depends on how the Court views the nature of the inquiry under the doctrine of equivalents).Petitioner's comments go more to the alleged inconsistency between the doctrine of equivalents and the claiming requirement than to the role of the jury in applying the doctrine as properly understood. Because resolution of whether, or how much of, the application of the doctrine of equivalents can be resolved by the court is not necessary for us to answer the question presented, we decline to take it up. The Federal Circuit held that it was for the jury to decide whether the accused process was equivalent to the claimed process. There was ample support in our prior cases for that holding. See, e. g., Machine Co. v. Murphy, 97 U. S., at 125 ("[I]n determining the question of infringement, the court or jury, as the case may be, ... are to look at the machines or their several devices or elements in the light of what they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way to obtain the same result"); Winans v. Denmead, 15 How., at 344 ("[It] is a question for the jury" whether the accused device was "the same in kind, and effected by the employment of [the patentee's] mode of operation in substance"). Nothing in our recent decision in Markman v. Westview Instruments, Inc., 517 U. S. 370 (1996), necessitates a different result than that reached by the Federal Circuit. Indeed, Markman cites with considerable favor, when discussing the role of judge39and jury, the seminal Winans decision. 517 U. S., at 384385. Whether, if the issue were squarely presented to us, we would reach a different conclusion than did the Federal Circuit is not a question we need decide today.8VAll that remains is to address the debate regarding the linguistic framework under which "equivalence" is determined. Both the parties and the Federal Circuit spend considerable time arguing whether the so-called "triple identity" test-focusing on the function served by a particular claim element, the way that element serves that function, and the result thus obtained by that element-is a suitable method for determining equivalence, or whether an "insubstantial differences" approach is better. There seems to be substantial agreement that, while the triple identity test may be suitable for analyzing mechanical devices, it often8With regard to the concern over unreviewability due to black-box jury verdicts, we offer only guidance, not a specific mandate. Where the evidence is such that no reasonable jury could determine two elements to be equivalent, district courts are obliged to grant partial or complete summary judgment. See Fed. Rule Civ. Proc. 56; Celotex Corp. v. Catrett, 477 U. S. 317, 322-323 (1986). If there has been a reluctance to do so by some courts due to unfamiliarity with the subject matter, we are confident that the Federal Circuit can remedy the problem. Of course, the various legal limitations on the application of the doctrine of equivalents are to be determined by the court, either on a pretrial motion for partial summary judgment or on a motion for judgment as a matter of law at the close of the evidence and after the jury verdict. Fed. Rule Civ. Proc. 56; Fed. Rule Civ. Proc. 50. Thus, under the particular facts of a case, if prosecution history estoppel would apply or if a theory of equivalence would entirely vitiate a particular claim element, partial or complete judgment should be rendered by the court, as there would be no further material issue for the jury to resolve. Finally, in cases that reach the jury, a special verdict and/or interrogatories on each claim element could be very useful in facilitating review, uniformity, and possibly postverdict judgments as a matter of law. See Fed. Rules Civ. Proc. 49 and 50. We leave it to the Federal Circuit how best to implement procedural improvements to promote certainty, consistency, and reviewability to this area of the law.40provides a poor framework for analyzing other products or processes. On the other hand, the insubstantial differences test offers little additional guidance as to what might render any given difference "insubstantial."In our view, the particular linguistic framework used is less important than whether the test is probative of the essential inquiry: Does the accused product or process contain elements identical or equivalent to each claimed element of the patented invention? Different linguistic frameworks may be more suitable to different cases, depending on their particular facts. A focus on individual elements and a special vigilance against allowing the concept of equivalence to eliminate completely any such elements should reduce considerably the imprecision of whatever language is used. An analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role substantially different from the claimed element. With these limiting principles as a backdrop, we see no purpose in going further and micromanaging the Federal Circuit's particular word choice for analyzing equivalence. We expect that the Federal Circuit will refine the formulation of the test for equivalence in the orderly course of case-by-case determinations, and we leave such refinement to that court's sound judgment in this area of its special expertise.VIToday we adhere to the doctrine of equivalents. The determination of equivalence should be applied as an objective inquiry on an element-by-element basis. Prosecution history estoppel continues to be available as a defense to infringement, but if the patent holder demonstrates that an amendment required during prosecution had a purpose unrelated to patentability, a court must consider that purpose in41order to decide whether an estoppel is precluded. Where the patent holder is unable to establish such a purpose, a court should presume that the purpose behind the required amendment is such that prosecution history estoppel would apply. Because the Court of Appeals for the Federal Circuit did not consider all of the requirements as described by us today, particularly as related to prosecution history estoppel and the preservation of some meaning for each element in a claim, we reverse its judgment and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1996SyllabusWARNER-JENKINSON CO., INC. v. HILTON DAVIS CHEMICAL CO.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUITNo. 95-728. Argued October 15, 1996-Decided March 3,1997Petitioner and respondent both manufacture dyes from which impurities must be removed. Respondent's '''746 patent," which issued in 1985, discloses an improved purification process involving the "ultrafiltration" of dye through a porous membrane at pH levels between 6.0 and 9.0. The inventors so limited their claim's pH element during patent prosecution after the patent examiner objected because of a perceived overlap with the earlier "Booth" patent, which disclosed an ultrafiltration process operating at a pH above 9.0. In 1986, petitioner developed its own ultrafiltration process, which operated at a pH level of 5.0. Respondent sued for infringement of the '746 patent, relying solely on the "doctrine of equivalents," under which a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is "equivalence" between the elements of the accused product or process and the claimed elements of the patented invention. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U. S. 605, 609. Over petitioner's objections that this is an equitable doctrine and is to be applied by the court, the equivalence issue was included among those sent to the jury, which found, inter alia, that petitioner infringed upon the '746 patent. The District Court, among its rulings, entered a permanent injunction against petitioner. The en banc Federal Circuit affirmed, holding that the doctrine of equivalents continues to exist, that the question of equivalence is for the jury to decide, and that the jury had substantial evidence from which to conclude that petitioner's process was not substantially different from the process disclosed in the '746 patent.Held:(a) In Graver Tank, supra, at 609, the Court, inter alia, described some of the considerations that go into applying the doctrine, such as the patent's context, the prior art, and the particular circumstances of the case, including the purpose for which an ingredient is used in the patent, the qualities it has when combined with the other ingredients, the function it is intended to perform, and whether persons reasonably18Syllabusskilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was. Pp. 24-25.(b) This Court rejects petitioner's primary argument, that the doctrine of equivalents, as set out in Graver Tank in 1950, is inconsistent with, and thus did not survive, particular aspects of Congress' 1952 revision of the Patent Act, 35 U. S. C. § 100 et seq. Petitioner's first three arguments in this regard-that the doctrine (1) is inconsistent with § 112's requirement that a patentee specifically "claim" the covered invention, (2) circumvents the patent reissue process under §§251-252, and (3) is inconsistent with the primacy of the Patent and Trademark Office (PTO) in setting a patent's scope-were made in Graver Tank, supra, at 613-615, and n. 3, in the context of the 1870 Patent Act, and failed to command a majority. The 1952 Act is not materially different from the 1870 Act with regard to these matters. Also unpersuasive is petitioner's fourth argument, that the doctrine of equivalents was implicitly rejected as a general matter by Congress' specific and limited inclusion of it in § 112, , 6. This new provision was enacted as a targeted cure in response to Halliburton Oil Well Cementing Co. v. Walker, 329 U. S. 1, 8, and thereby to allow so-called "means" claims describing an element of an invention by the result accomplished or the function served. Moreover, the statutory reference to "equivalents" appears to be no more than a prophylactic against potential side effects of that cure, i. e., an attempt to limit the application of the broad literal language of "means" claims to those means that are "equivalent" to the actual means shown in the patent specification. Pp. 25-28.(c) The determination of equivalence should be applied as an objective inquiry on an element-by-element basis. The Court is concerned that the doctrine, as it has come to be broadly applied since Graver Tank, conflicts with the Court's numerous holdings that a patent may not be enlarged beyond the scope of its claims. The way to reconcile the two lines of authority is to apply the doctrine to each of the individual elements of a claim, rather than to the accused product or process as a whole. Doing so will preserve some meaning for each of a claim's elements, all of which are deemed material to defining the invention's scope. So long as the doctrine does not encroach beyond these limits, or beyond related limits discussed in the Court's opinion, infra, at 30-34, 39, n. 8, and 39-40, it will not vitiate the central functions of patent claims to define the invention and to notify the public of the patent's scope. pp. 28-30.(d) Petitioner is correct that Graver Tank did not supersede the well-established limitation on the doctrine of equivalents known as "prosecution history estoppel," whereby a surrender of subject matter during patent prosecution may preclude recapturing any part of that19Full Text of Opinion

1999_98-1036

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two of the officers caught up with him, stopped him, and conducted a protective patdown search for weapons. Discovering a .38-caliber handgun, the officers arrested Wardlow. We hold that the officers' stop did not violate the Fourth Amendment to the United States Constitution.On September 9, 1995, Officers Nolan and Harvey were working as uniformed officers in the special operations section of the Chicago Police Department. The officers were driving the last car of a four-car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions. The officers were traveling together because they expected to find a crowd of people in the area, including lookouts and customers.As the caravan passed 4035 West Van Buren, Officer Nolan observed respondent Wardlow standing next to the buildingAlan G. Lance of Idaho, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Mike Hatch of Minnesota, Michael C. Moore of Mississippi, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Michael P. Easley of North Carolina, W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark L. Barnett of South Dakota, and Mark L. Earley of Virginia; for the Wayne County Prosecuting Attorney by John D. O'Hair, pro se, Timothy A. Baughman, and Jeffrey Caminsky; for Americans for Effective Law Enforcement, Inc., et al. by Wayne W Schmidt, James P. Manak, and Richard Weintraub; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations et al. by Stephen R. McSpadden.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Tracey Maclin, Steven R. Shapiro, Harvey Grossman, and Barbara E. Bergman; for the NAACP Legal Defense & Educational Fund, Inc., by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, and Laura E. Hankins; and for the Rutherford Institute by John W Whitehead and Steven H. Aden.122holding an opaque bag. Respondent looked in the direction of the officers and fled. Nolan and Harvey turned their car southbound, watched him as he ran through the gangway and an alley, and eventually cornered him on the street. Nolan then exited his car and stopped respondent. He immediately conducted a protective patdown search for weapons because in his experience it was common for there to be weapons in the near vicinity of narcotics transactions. During the frisk, Officer Nolan squeezed the bag respondent was carrying and felt a heavy, hard object similar to the shape of a gun. The officer then opened the bag and discovered a .38-caliber handgun with five live rounds of ammunition. The officers arrested Wardlow.The Illinois trial court denied respondent's motion to suppress, finding the gun was recovered during a lawful stop and frisk. App. 14. Following a stipulated bench trial, Wardlow was convicted of unlawful use of a weapon by a felon. The Illinois Appellate Court reversed Wardlow's conviction, concluding that the gun should have been suppressed because Officer Nolan did not have reasonable suspicion sufficient to justify an investigative stop pursuant to Terry v. Ohio, 392 U. S. 1 (1968). 287 Ill. App. 3d 367, 678 N. E. 2d 65 (1997).The Illinois Supreme Court agreed. 183 Ill. 2d 306, 701 N. E. 2d 484 (1998). While rejecting the Appellate Court's conclusion that Wardlow was not in a high crime area, the Illinois Supreme Court determined that sudden flight in such an area does not create a reasonable suspicion justifying a Terry stop. 183 Ill. 2d, at 310, 701 N. E. 2d, at 486. Relying on Florida v. Royer, 460 U. S. 491 (1983), the court explained that although police have the right to approach individuals and ask questions, the individual has no obligation to respond. The person may decline to answer and simply go on his or her way, and the refusal to respond, alone, does not provide a legitimate basis for an investigative stop. 183 Ill.1232d, at 311-312, 701 N. E. 2d, at 486-487. The court then determined that flight may simply be an exercise of this right to "go on one's way," and, thus, could not constitute reasonable suspicion justifying a Terry stop. 183 Ill. 2d, at 312, 701 N. E. 2d, at 487.The Illinois Supreme Court also rejected the argument that flight combined with the fact that it occurred in a high crime area supported a finding of reasonable suspicion because the "high crime area" factor was not sufficient standing alone to justify a Terry stop. Finding no independently suspicious circumstances to support an investigatory detention, the court held that the stop and subsequent arrest violated the Fourth Amendment. We granted certiorari, 526 U. S. 1097 (1999), and now reverse.1This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by the analysis we first applied in Terry. In Terry, we held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. 392 U. S., at 30. While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U. S. 1, 7 (1989). The officer must be able1 The state courts have differed on whether unprovoked flight is sufficient grounds to constitute reasonable suspicion. See, e. g., State v. Anderson, 155 Wis. 2d 77, 454 N. W. 2d 763 (1990) (flight alone is sufficient); Platt v. State, 589 N. E. 2d 222 (Ind. 1992) (same); Harris v. State, 205 Ga. App. 813,423 S. E. 2d 723 (1992) (flight in high crime area sufficient); State v. Hicks, 241 Neb. 357, 488 N. W. 2d 359 (1992) (flight is not enough); State v. Tucker, 136 N. J. 158, 642 A. 2d 401 (1994) (same); People v. Shabaz, 424 Mich. 42, 378 N. W. 2d 451 (1985) (same); People v. Wilson, 784 P. 2d 325 (Colo. 1989) (same).124to articulate more than an "inchoate and unparticularized suspicion or 'hunch'" of criminal activity. Terry, supra, at 27.2Nolan and Harvey were among eight officers in a four-car caravan that was converging on an area known for heavy narcotics trafficking, and the officers anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts. App.8. It was in this context that Officer Nolan decided to investigate Wardlow after observing him flee. An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U. S. 47 (1979). But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a "high crime area" among the relevant contextual considerations in a Terry analysis. Adams v. Williams, 407 U. S. 143, 144, 147-148 (1972).In this case, moreover, it was not merely respondent's presence in an area of heavy narcotics trafficking that aroused the officers' suspicion, but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. United States v. Brignoni-Ponce, 422 U. S. 873, 885 (1975); Florida v. Rodriguez, 469 U. S. 1, 6 (1984) (per curiam); United States v. Sokolow, supra, at 8-9. Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious2We granted certiorari solely on the question whether the initial stop was supported by reasonable suspicion. Therefore, we express no opinion as to the lawfulness of the frisk independently of the stop.125behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. See United States v. Cortez, 449 U. S. 411, 418 (1981). We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.Such a holding is entirely consistent with our decision in Florida v. Royer, 460 U. S. 491 (1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. Id., at 498. And any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Florida v. Bostick, 501 U. S. 429, 437 (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and periodically conferring. 392 U. S., at 5-6. All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity. Id., at 30.126Opinion of STEVENS, J.In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us.The judgment of the Supreme Court of Illinois is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusILLINOIS v. WARDLOWCERTIORARI TO THE SUPREME COURT OF ILLINOISNo. 98-1036. Argued November 2, 1999-Decided January 12,2000Respondent Wardlow fled upon seeing a caravan of police vehicles converge on an area of Chicago known for heavy narcotics trafficking. When Officers Nolan and Harvey caught up with him on the street, Nolan stopped him and conducted a protective patdown search for weapons because in his experience there were usually weapons in the vicinity of narcotics transactions. Discovering a handgun, the officers arrested Wardlow. The Illinois trial court denied his motion to suppress, finding the gun was recovered during a lawful stop and frisk. He was convicted of unlawful use of a weapon by a felon. In reversing, the State Appellate Court found that Nolan did not have reasonable suspicion to make the stop under Terry v. Ohio, 392 U. S. 1. The State Supreme Court affirmed, determining that sudden flight in a high crime area does not create a reasonable suspicion justifying a Terry stop because flight may simply be an exercise of the right to "go on one's way," see Florida v. Royer, 460 U. S. 491.Held: The officers' actions did not violate the Fourth Amendment. This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by Terry, under which an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. While "reasonable suspicion" is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. An individual's presence in a "high crime area," standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location's characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation, Adams v. Williams, 407 U. S. 143,144,147-148. In this case, moreover, it was also Wardlow's unprovoked flight that aroused the officers' suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion, e. g., United States v. Brignoni-Ponce, 422 U. S. 873, 885, and headlong flight is the consummate act of evasion. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and this Court cannot reasonably demand scientific certainty when none exists. Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior. See120SyllabusUnited States v. Cortez, 449 U. S. 411,418. Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. Such a holding is consistent with the decision in Florida v. Royer, supra, at 498, that an individual, when approached, has a right to ignore the police and go about his business. Unprovoked flight is the exact opposite of "going about one's business." While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct, 392 U. S., at 30, and thus accepts the risk that officers may stop innocent people. If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way. But in this case the officers found that Wardlow possessed a handgun and arrested him for violating a state law. The propriety of that arrest is not before the Court. pp. 123-126.183 Ill. 2d 306, 701 N. E. 2d 484, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 126.Richard A. Devine argued the cause for petitioner. With him on the briefs were James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, Renee G. Goldfarb, Theodore Fotios Burtzos, and Veronica Ximena Calderon.Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Deborah Watson.James B. Koch argued the cause for respondent. With him on the brief were Lynn N. Weisberg and Thomas G. Gardiner. **Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, Robert C. Maier and Alejandro Almaguer, Assistant Solicitors, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Ken Salazar of Colorado, M. Jane Brady of Delaware,121Full Text of Opinion

1987_85-1765

JUSTICE MARSHALL delivered the opinion of the Court.In this case we must decide whether a Mississippi statute imposing a 15% penalty on parties who appeal unsuccessfully from a money judgment violates the Equal Protection Clause.IThis action grows out of allegations that appellant Bankers Life and Casualty Company refused in bad faith to pay appellee Lloyd Crenshaw's insurance claim for loss of a limb. According to testimony at trial, appellee was injured on January 6, 1979, when a car alternator he was repairing rolled off his workbench and landed on his foot. Three days later, after the injury had not responded to home treatment, appellee went to the emergency room of the local Air Force Base hospital. Hospital doctors prescribed a splint, crutches, and pain medication, and told appellee to return in a week. Appellee revisited the hospital three times over the next five days, each time complaining of continuing pain in his foot. By the last visit, appellee's foot had swollen and begun to turn blue, and the examining doctor recommended a surgery consultation. Appellee was admitted to the hospital, where, Page 486 U. S. 74 on January 17, an Air Force general surgeon determined that a surgical amputation was necessary. The following day, appellee's leg was amputated below the knee.At the time of the amputation, appellee was insured under a group policy issued by appellant. The policy provided a $20,000 benefit for loss of limb due to accidental bodily injury. In April, 1979, appellee submitted a claim under the policy. Appellant denied the claim. The apparent basis for the denial was an opinion of appellant's Medical Director, Dr. Nathaniel McParland, that the cause of the amputation was not appellee's accident but a preexisting condition of arteriosclerosis, a degenerative vascular disease. Appellee responded to the company's denial by furnishing a statement signed by three doctors who treated him at the hospital. They stated that appellee's arteriosclerosis was"an underlying condition, and not the immediate cause of the gangrenous necrosis. The precipating [sic] event must be considered to be the trauma which initially brought him to the Emergency Room on 9 January."483 So. 2d 254, 261 (Miss.1985). Dr. McParland and a company analyst concluded that this statement was inconsequential, and appellant adhered to its position that the arteriosclerosis was responsible for the loss of limb.Appellee persisted in his efforts to recover under the policy, eventually hiring an attorney, and appellant persisted in its intransigence. In its correspondence with appellee and his attorney, appellant repeatedly asserted that appellee had not suffered an injury as defined in the policy, that is, a"'bodily injury, causing the loss while this policy is in force, directly and independently of all other causes and effected solely through an accidental bodily injury to the insured person.'"Id. at 262, quoting letter of Apr. 8, 1980, from Wm. Herzau to appellee. In contemporaneous internal memoranda, however, appellant noted that, notwithstanding the policy language, appellee was entitled to recovery under Mississippi law if his injury had "aggravate[d], render[ed] Page 486 U. S. 75 active, or set in motion a latent or dormant preexisting physical condition or disease." Id. at 262, 263. The memoranda also demonstrated that appellant knew its files were incomplete, yet never attempted to obtain appellee's medical records, most notably his emergency room report, even though Mississippi law and internal company procedures required such efforts.After appellant again denied the claim on the ground that there was no evidence that appellee's "injury caused this loss directly and independently of all other causes,'" see id. at 263, appellee brought this suit in Mississippi state court. His complaint requested $20,000 in actual damages, and, as amended, $1,635,000 in punitive damages for the tort of bad-faith refusal to pay an insurance claim. The jury awarded appellee the $20,000 provided by the policy and punitive damages of $1.6 million.The Mississippi Supreme Court affirmed the jury verdict without modification. It concluded that the punitive damages award was not excessive in light of appellant's financial worth and the degree of its wrongdoing. See id. at 279. Because the money judgment was affirmed without modification, a penalty of $243,000, or 15% of the judgment, was assessed against appellant and added to appellee's recovery in accordance with Mississippi's penalty statute. See Miss.Code Ann. § 11-3-23 (Supp.1987). In its appeal to the Mississippi Supreme Court, appellant did not raise a federal constitutional challenge to the size of the punitive damages award. [Footnote 1] Following the affirmance of the jury verdict, appellant filed a petition for rehearing. Appellant argued in the petition that"[t]he punitive damage verdict was clearly excessive, Page 486 U. S. 76 not reasonably related to any legitimate purpose, constitutes excessive fine, and violates constitutional principles."App. to Juris. Statement 139a. An accompanying brief asserted that the punitive damages award violated "due process, equal protection, and other constitutional standards." Id. at 151a. Appellant also filed a Motion to Correct Judgment in which it alleged that the 15% penalty under § 11-3-23 "violat[ed] the rights of equal protection and due process of Bankers Life" guaranteed in the Federal and State Constitutions. App. to Juris. Statement 106a-107a. The Mississippi Supreme Court, without opinion, denied the petition for rehearing and overruled the Motion to Correct Judgment.IIAppellant focuses most of its efforts in this appeal to challenging the punitive damages award of $1.6 million. It contends foremost that the award violates the Eighth Amendment's guarantee that "excessive fines [shall not be] imposed." Appellant argues first, that the Excessive Fines Clause applies to punitive damages awards rendered in civil cases, and second, that the particular award in this case was constitutionally excessive. In addition to its excessive fines claim, appellant challenges the punitive damages award in this case on the grounds that it violates the Due Process Clause and the Contract Clause. Although we noted probable jurisdiction as to all of the questions presented in appellant's jurisdictional statement, appellant's challenges to the size of the punitive damages award do not fall within our appellate jurisdiction. See 28 U.S.C. § 1257(2). We therefore treat them as if contained in a petition for a writ of certiorari, and our unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ as to these claims. See Mistakin v. New York, 383 U. S. 502, 383 U. S. 512 (1966). We conclude, however, that these claims were not raised and passed upon in state court, and we decline to reach them here. See ibid. ("The issue thus remains within our Page 486 U. S. 77 certiorari jurisdiction, and we may, for good reason, even at this stage, decline to decide the merits of the issue, much as we would dismiss a writ of certiorari as improvidently granted").Appellant maintains that it raised its various challenges to the size of the punitive damages award in its petition for rehearing before the Mississippi Supreme Court. In urging us to entertain the claims, appellant relies on our decision in Hathorn v. Lovorn, 457 U. S. 255, 457 U. S. 262-265 (1982), in which we accepted certiorari jurisdiction of claims that were raised, but not passed upon, in the Mississippi Supreme Court on petition for rehearing. Hathorn would be apposite were we to conclude that appellant had adequately raised its claims on rehearing. But appellant's petition for rehearing alleged only that the punitive damages award "was clearly excessive, not reasonably related to any legitimate purpose, constitutes excessive fine, and violates constitutional principles." App. to Juris. Statement 139a. The vague appeal to constitutional principles does not preserve appellant's Contract Clause or due process claim. A party may not preserve a constitutional challenge by generally invoking the Constitution in state court and awaiting review in this Court to specify the constitutional provision it is relying upon. Cf. Taylor v. Illinois, 484 U. S. 400, 484 U. S. 407, n. 9 (1988) ("A generic reference to the Fourteenth Amendment is not sufficient to preserve a constitutional claim based on an unidentified provision of the Bill of Rights. . . .").Appellant's reference to the excessiveness of the punitive damages award more colorably raises a cognizable constitutional challenge to the size of the award, one based on the Excessive Fines Clause of the Eighth Amendment. But this language as well is too oblique to allow us to conclude that appellant raised before the Mississippi Supreme Court the federal claim it now urges us to resolve. As this Court stated in Webb v. Webb, 451 U. S. 493, 451 U. S. 501 (1981),"[a]t the minimum . . . there should be no doubt from the record that a Page 486 U. S. 78 claim under a federal statute or the Federal Constitution was presented in the state courts, and that those courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law."Although the petition for rehearing alleges that the fine is excessive, it does not indicate that the fine is excessive as a constitutional matter, be it state or federal. It certainly does not identify the Excessive Fines Clause of the Eighth Amendment to the Federal Constitution as the source of appellant's claim. Indeed, the crucial language from appellant's petition contains no reference whatsoever to the Eighth Amendment, the Federal Constitution, or federal law. This failure to invoke the Federal Constitution is especially problematic in this case, because the Mississippi Constitution contains its own Excessive Fines Clause. Miss. Const., Art. 3, § 28. Thus, even if the Mississippi Supreme Court understood appellant to be offering a constitutional challenge, it may very well have taken that challenge to be anchored in the State Constitution. Cf. Webb, supra, at 496-498 (finding that party's reference to "full faith and credit" in state court proceedings had failed to raise a federal constitutional claim, even though the State Constitution contained no full faith and credit clause); id. at 451 U. S. 502-503 (MARSHALL, J., dissenting). We therefore conclude that appellant's Eighth Amendment challenge, like its other challenges to the size of the punitive damages award, was not properly raised below. [Footnote 2] Page 486 U. S. 79Whether appellant's failure to raise these claims in the Mississippi courts deprives us of all power to review them under our certiorari jurisdiction is an unsettled question. As then JUSTICE REHNQUIST wrote for the Court in Illinois v. Gates, 462 U. S. 213 (1983), the cases have been somewhat inconsistent in their characterization of the "not pressed or passed upon below" rule. Early opinions seemed to treat the requirement as jurisdictional, whereas more recent cases clearly view the rule as merely a prudential restriction that does not pose an insuperable bar to our review. See id. at 462 U. S. 218-219 (discussing cases). We are not called on today to conclusively characterize the "not pressed or passed upon below" rule, however, because assuming that the rule is merely prudential, we believe that the more prudent course in this case is to decline to review appellant's claims.In determining whether to exercise jurisdiction over questions not properly raised below, the Court has focused on the policies that animate the "not pressed or passed upon below" rule. These policies are first, comity to the States, and second, a constellation of practical considerations, chief among which is our own need for a properly developed record on appeal. See Webb v. Webb, supra, at 451 U. S. 500-501. Because the chief issue appellant would have us resolve -- whether the Eighth Amendment's Excessive Fines Clause serves to limit punitive damages in state civil cases -- is a question of some moment and difficulty, these policies apply with special force. See Illinois v. Gates, supra, at 462 U. S. 224 ("Where difficult issues of great public importance are involved, there are strong reasons to adhere scrupulously to the customary limitations on our discretion"); Mistakin v. New York, 383 U.S. at 383 U. S. 512-513 ("The far-reaching and important questions tendered by this claim are not presented by the record with sufficient clarity to require or justify their decision"). Our review of appellant's claim now would short-circuit a number of less intrusive, Page 486 U. S. 80 and possibly more appropriate, resolutions: the Mississippi State Legislature might choose to enact legislation addressing punitive damages awards for bad-faith refusal to pay insurance claims; [Footnote 3] failing that, the Mississippi state courts may choose to resolve the issue by relying on the State Constitution or on some other adequate and independent nonfederal ground; and failing that, the Mississippi Supreme Court will have its opportunity to decide the question of federal law in the first instance, while any ultimate review of the question that we might undertake will gain the benefit of a well developed record and a reasoned opinion on the merits. We think it unwise to foreclose these possibilities, and therefore decline to address appellant's challenges to the size of the punitive damages award.IIIThere remains appellant's challenge to Mississippi's "penalty statute," which requires unsuccessful appellants from money judgments, as well as from several other categories of judgments whose value may readily be determined, to pay an additional assessment of 15% of the judgment. [Footnote 4] Appellant Page 486 U. S. 81 argues that the penalty statute violates the Equal Protection Clause of the Fourteenth Amendment because it singles out appellants from money judgments, and because it penalizes all such appellants who are unsuccessful, regardless of the merit of their appeal. This claim is properly before us under our appellate jurisdiction because the Mississippi Supreme Court, in denying appellant's Motion to Correct Judgment, upheld the validity of § 11-3-23 against appellant's federal constitutional claim. See 28 U.S.C. § 1257(2).Under this Court's equal protection jurisprudence, Mississippi's statute is "presumed to be valid and will be sustained if the classification . . . is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 473 U. S. 440 (1985). The state interests assertedly served by the Mississippi statute were detailed by the Mississippi Supreme Court in Walters v. Inexco Oil Co., 440 So. 2d 268 (1983). The penalty statute, some version of which has been part of Mississippi law since 1857,"expresses the state's interest in discouraging frivolous appeals. It likewise expresses a bona fide interest in providing a measure of compensation for the successful appellee, compensation for his Page 486 U. S. 82 having endured the slings and arrows of successful appellate litigation."Id. at 274-275. In a similar vein, the statute protects the integrity of judgments by discouraging appellant-defendants from prolonging the litigation merely to "squeeze a favorable settlement out of an impecunious" appellee. Id. at 275. Also, the penalty statute"tells the litigants that the trial itself is a momentous event, the centerpiece of the litigation, not just a first step weighing station en route to endless rehearings and reconsiderations."Ibid. Finally, in part because it serves these other goals, the penalty statute furthers the State's interest in conserving judicial resources. Ibid.The legitimacy of these state interests cannot seriously be doubted, and this Court has upheld statutes that serve similar interests. See, e.g., Life & Casualty Ins. Co. v. McCray, 291 U. S. 566 (1934) (upholding additional assessment on insurance companies that wrongfully refuse to pay policy benefits); see also Louisville & Nashville R. Co. v. Stewart, 241 U. S. 261, 241 U. S. 263 (1916) (State may make appeal "costly in cases where ultimately the judgment is upheld") (Holmes, J.). Cf. Lindsey v. Normet, 405 U. S. 56, 405 U. S. 78 (1972) ("We do not question here reasonable procedural provisions to safeguard litigated property . . . or to discourage patently insubstantial appeals") (citation omitted). The statute therefore offends the Equal Protection Clause only if the legislative means that Mississippi has chosen are not rationally related to these legitimate interests.In arguing that § 11-3-23 violates equal protection, appellant seeks to draw support from the Court's opinion in Lindsey v. Normet, supra. Lindsey addressed the constitutionality of an Oregon statute that required tenants challenging eviction proceedings to post a bond of twice the amount of rent expected to accrue pending appellate review. The bond was forfeited to the landlord if the lower court decision was affirmed. We agreed with the appellants that the double-bond Page 486 U. S. 83 requirement violated the Equal Protection Clause. [Footnote 5] We noted that the requirement was "unrelated to actual rent accrued or to specific damage sustained by the landlord." 405 U.S. at 405 U. S. 77. Moreover, the requirement, which burdened only tenants, including tenants whose appeals were nonfrivolous, erected "a substantial barrier to appeal faced by no other civil litigant in Oregon." Id. at 405 U. S. 79. We therefore concluded that the requirement bore "no reasonable relationship to any valid state objective," and that it discriminated against the class of tenants appealing from adverse decisions in wrongful detainer actions in an "arbitrary and irrational" fashion. Id. at 405 U. S. 76-77, 405 U. S. 79.As Lindsey demonstrates, arbitrary and irrational discrimination violates the Equal Protection Clause under even our most deferential standard of review. Unlike the statute in Lindsey, however, Mississippi's penalty statute does not single out a class of appellants in an arbitrary and irrational fashion. First, whereas the statute in Lindsey singled out the narrow class of defendant-tenants for discriminatory treatment, the sweep of § 11-3-23 is far broader: the penalty applies both to plaintiffs and defendants, and it also applies to all money judgments, as well as to a long list of judgments whose money value may readily be determined. See n 6, infra. Second, and more generally, there is a rational connection between the statute's objective and Mississippi's choice to impose a penalty only on appellants from money judgments or judgments the money value of which can readily be determined. If Mississippi wanted similarly to deter frivolous appeals from other kinds of judgments, it either would have to erect a fixed bond that bore no relation to the value of the underlying suit or else it would have to Page 486 U. S. 84 set appropriate penalties in each case using some kind of individualized procedure, which would impose a considerable cost in judicial resources, exactly what the statute aims to avoid. Mississippi instead has chosen a partial solution that will deter many, though not all, frivolous appeals without requiring a significant commitment of governmental resources. Appellants from money judgments, and from the other types of judgments delineated in the statute, are a rational target of this scheme because the value of their claims, and thus of a proportional penalty, may be readily computed without substantial judicial intervention. Cf. Lindsey, supra, at 405 U. S. 78 ("We discern nothing in the special purposes of the [wrongful detainer] statute or in the special characteristics of the landlord-tenant relationship to warrant this discrimination"). The Constitution does not prohibit Mississippi from singling out a group of litigants that it rationally concludes is most likely to be deterred from bringing meritless claims at the least cost to the State.In addition, Mississippi's statute is less likely than was the statute in Lindsey to discourage substantial appeals along with insubstantial ones. Because the penalty operates only after a judgment has been affirmed without modification, there is less risk than in Lindsey of discouraging appellants who believe they have meritorious appeals but simply lack the funds to post a substantial bond during the appellate process. [Footnote 6] And whereas the assessment in Lindsey "automatically doubled the stakes," 405 U.S. at 405 U. S. 79, the 15% penalty here is a relatively modest additional assessment. Cf. Page 486 U. S. 85 McCray, supra, at 291 U. S. 571 (12% additional assessment not oppressive). Although Mississippi may not have succeeded in eliminating all danger of deterring meritorious claims, we cannot say that the residual danger is sufficient to render the statutory scheme irrational.In short, unlike the double-bond provision condemned in Lindsey, the means chosen in § 11-3-23 are reasonably related to the achievement of the State's objectives of discouraging frivolous appeals, compensating appellees for the intangible costs of litigation, and conserving judicial resources. See Lindsey, supra, at 405 U. S. 70. It of course is possible that Mississippi might have enacted a statute that more precisely serves these goals and these goals only; as we frequently have explained, however, a state statute need not be so perfectly calibrated in order to pass muster under the rational basis test. See, e.g., Vance v. Bradley, 440 U. S. 93, 440 U. S. 108 (1979). We are satisfied that the means that the State has chosen are "reasonably tailored to achieve [the State's legitimate] ends." Lindsey, supra, at 405 U. S. 78. We therefore affirm the judgment of the Mississippi Supreme Court denying appellant's equal protection challenge to § 11-3-23.It is so ordered

U.S. Supreme CourtBankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71 (1988)Bankers Life & Casualty Co. v. CrenshawNo. 85-1765Argued November 30, 1987Decided May 16, 1988486 U.S. 71SyllabusIn a state court suit upon an insurance claim for loss of a limb, the jury awarded appellee the $20,000 provided by his policy and punitive damages of $1.6 million based on appellant's bad-faith refusal to pay the claim. Concluding that the punitive damages award was not excessive in light of appellant's financial worth and the degree of its wrongdoing, the Mississippi Supreme Court affirmed the verdict without modification, and assessed an additional 15% penalty against appellant in accordance with a state statute imposing such a penalty on parties who appeal unsuccessfully from money judgments or other categories of judgments whose value may be readily determined. Although the appeal had not raised a federal constitutional challenge to the size of the punitive damages award, appellant argued, in its petition for rehearing, that the award "was clearly excessive, not reasonably related to any legitimate purpose, constitutes excessive fine, and violates constitutional principles." Appellant's Motion to Correct Judgment also alleged that the statutory penalty violated its equal protection rights under the Federal and State Constitutions. Without opinion, the State Supreme Court denied the petition for rehearing and the Motion to Correct Judgment.Held:1. This Court will not reach appellant's claims that the punitive damages award violated the Due Process, Contract, and Excessive Fines Clauses of the Federal Constitution, since those claims were not raised and passed upon in state court. Hathorn v. Lovorn, 457 U. S. 255, distinguished. The petition for rehearing's vague and general appeal to constitutional principles was insufficient to adequately raise the Contract Clause or due process claims. Similarly, the petition's reference to the award's excessiveness is too oblique to have properly raised the Federal Excessive Fines Clause claim, since no mention was made of the Clause, the Federal Constitution, or federal law, and the Mississippi Constitution contains its own Excessive Fines Clause, which the State Supreme Court could have taken to underlie the excessiveness challenge if it understood appellant to be offering a constitutional challenge. Assuming that this Court's "not pressed or passed upon below" rule is not jurisdictional, but is merely a prudential restriction, the more prudent course here is to decline review of the important and difficult Federal Excessive Fines Clause issue. This course will permit a number of less intrusive, Page 486 U. S. 72 and possibly more appropriate, resolutions by the state legislature or courts, while any ultimate review of the question in this Court will gain the benefit of a well developed record and a reasoned opinion on the merits by the State Supreme Court. Pp. 486 U. S. 76-80.2. Mississippi's penalty statute does not violate the Equal Protection Clause of the Fourteenth Amendment, since it is reasonably tailored to achieve the State's legitimate objectives of discouraging frivolous appeals, compensating appellees for the intangible costs of litigation, and conserving judicial resources. The statute does not discriminate against a particular class of appellants in an arbitrary and irrational fashion, since it broadly applies to both plaintiffs and defendants, as well as to a variety of specified types of readily determined judgments, and since its limitation to appellants from such judgments represents a rational, if partial, attempt to deter frivolous appeals without the substantial judicial intervention that the inclusion of other types of claims would require. Moreover, the statute poses little danger of discouraging meritorious appeals along with insubstantial ones, since the 15% penalty operates only after a judgment has been affirmed without modification, and represents a relatively modest additional assessment. Lindsey v. Normet, 405 U. S. 56, distinguished. Although the State might have enacted a statute that more precisely served the intended goals, perfection is not required under the rational basis test. Pp. 486 U. S. 80-85.483 So. 2d 254, affirmed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, J., joined, in all but Part II of which WHITE, J, joined, in all but Part II and n. 1 of which O'CONNOR and SCALIA, JJ., joined, and in all but Part III of which BLACKMUN, J., joined. WHITE, J., filed a concurring opinion, in which SCALIA, J., joined, post, p. 486 U. S. 85. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined, post, p. 486 U. S. 86. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 486 U. S. 89. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 486 U. S. 89. STEVENS and KENNEDY, JJ., took no part in the consideration or decision of the case. Page 486 U. S. 73

1969_33

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BLACK.This case, which involves an alleged discrimination against a Negro family in the use of certain community facilities, has been here before. The Virginia trial court dismissed petitioners' complaints and the Supreme Court of Appeals of Virginia denied the appeals saying that they were not perfected"in the manner provided by law in that opposing counsel was not given reasonable written notice of the time and place of tendering the transcript and a reasonable opportunity to examine the original or a true copy of it"under that court's Rule 5:1, § 3(f). [Footnote 1]The case came here and we granted the petition for certiorari and vacated the judgments and remanded the case to the Supreme Court of Appeals for further consideration in light of Jones v. Mayer Co., 392 U. S. 409. 392 U. S. 657. On the remand, the Supreme Court of Appeals restated its prior position stating,"We had no jurisdiction in the cases when they were here before, and we have no jurisdiction now. We adhere to our orders refusing the appeals in these cases."209 Va. 279, 163 S.E.2d 588. We brought the case here the second time on a petition for certiorari. 394 U.S. 942. Page 396 U. S. 232IWhen the case was first here respondents opposed the petition, claiming that Rule 5:1, § 3(f), was not complied with. Petitioners filed a reply brief addressing themselves to that question. Thus, the point now tendered was fully exposed when the case was here before, though we ruled on it sub silentio.In this case, counsel for petitioners, on June 9, 1967, gave oral notice to counsel for respondents that he was submitting the transcripts to the trial judge. He wrote counsel for respondents on the same day to the same effect, saying he was submitting the transcripts to the trial judge that day, filing motions to correct them, and asking the trial court to defer signing them for a ten-day period to allow counsel for respondents time to consent to the motions or have them otherwise disposed of by the court. The judge, being absent from his chambers on June 9, ruled that he had not received the transcripts until June 12. The motions to correct came on for a hearing June 16, at which time the judge ruled that he would not act on the motions until counsel for respondents had agreed or disagreed with the changes requested. After examining the transcripts between June 16 and June 19, counsel for respondents told counsel for petitioners that he had no objections to the corrections or to entry of orders granting the motions to correct. Counsel for respondents then signed the proposed orders which counsel for petitioners had prepared. The proposed orders were submitted to the trial judge on June 20, and on the same day he signed the transcripts, after they had been corrected.As we read its cases, the Supreme Court of Appeals stated the controlling principle in the following language:"The requirement that opposing counsel have a reasonable opportunity to examine the transcript sets out the purpose of reasonable notice. If, after Page 396 U. S. 233 receipt of notice, opposing counsel be afforded reasonable opportunity to examine the transcript, and to make objections thereto, if any he has, before it is signed by the trial judge, the object of reasonable notice will have been attained."Bacigalupo v. Fleming, 199 Va. 827, 835, 102 S.E.2d 321, 326.In that case, opposing counsel had seven days to examine the record and make any objections. In the present case, he had three days. But, so far as the record shows, he did not at the time complain that he was not given that "reasonable opportunity" he needed to examine and correct the transcripts.Petitioners' counsel does not urge -- nor do we suggest -- that the Virginia Supreme Court of Appeals has fashioned a novel procedural requirement for the first time in this case; cf. NAACP v. Alabama, 357 U. S. 449, 357 U. S. 457-458; past decisions of the state court refute any such notion. See Bacigalupo v. Fleming, supra; Bolin v. Laderberg, 207 Va. 795, 153 S.E.2d 251; Cook v. Virginia Holsum Bakeries, 207 Va. 815, 153 S.E.2d 209. [Footnote 2] But those same decisions do not enable us Page 396 U. S. 234 to say that the Virginia court has so consistently applied its notice requirement as to amount to a self-denial of the power to entertain the federal claim here presented if the Supreme Court of Appeals desires to do so. See Henry v. Mississippi, 379 U. S. 443, 379 U. S. 455-457 (BLACK, J., dissenting). Such a rule, more properly deemed discretionary than jurisdictional, does not bar review here by certiorari.IILittle Hunting Park, Inc., is a Virginia nonstock corporation organized to operate a community park and playground facilities for the benefit of residents in an area of Fairfax County, Virginia. A membership share entitles all persons in the immediate family of the shareholder to use the corporation's recreation facilities. Under the bylaws, a person owning a membership share is entitled when he rents his home to assign the share to his tenant, subject to approval of the board of directors. Paul E. Sullivan and his family owned a house Page 396 U. S. 235 in this area and lived in it. Later he bought another house in the area and leased the first one to T. R. Freeman, Jr., an employee of the U.S. Department of Agriculture, and assigned his membership share to Freeman. The board refused to approve the assignment because Freeman was a Negro. Sullivan protested that action and was notified that he would be expelled from the corporation by the board. A hearing was accorded him and he was expelled, the board tendering him cash for his two shares.Sullivan and Freeman sued under 42 U.S.C. §§ 1981, 1982 for injunctions and monetary damages. Since Freeman no longer resides in the area served by Little Hunting Park, Inc., his claim is limited solely to damages.The trial court denied relief to each petitioner. We reverse those judgments.In Jones v. Mayer Co., 392 U. S. 409, we reviewed at length the legislative history of 42 U.S.C. § 1982. [Footnote 3] We concluded that it reaches beyond state action and operates upon the unofficial acts of private individuals, and that it is authorized by the Enabling Clause of the Thirteenth Amendment. We said:"Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom -- freedom to 'go and come at pleasure' and to 'buy and sell when they please' -- would be left with 'a mere paper guarantee' if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands Page 396 U. S. 236 of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep."392 U.S. at 392 U. S. 443.The Virginia trial court rested on its conclusion that Little Hunting Park was a private social club. But we find nothing of the kind on this record. There was no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race. See Daniel v. Paul, 395 U. S. 298, 395 U. S. 301-302. What we have here is a device functionally comparable to a racially restrictive covenant, the judicial enforcement of which was struck down in Shelley v. Kraemer, 334 U. S. 1, by reason of the Fourteenth Amendment.In Jones v. Mayer Co., the complaint charged a refusal to sell petitioner a home because he was black. In the instant case, the interest conveyed was a leasehold of realty coupled with a membership share in a nonprofit company organized to offer recreational facilities to owners and lessees of real property in that residential area. It is not material whether the membership share be considered realty or personal property, as § 1982 covers both. Section 1982 covers the right "to inherit, purchase, lease, sell, hold, and convey real and personal property." There is a suggestion that transfer on the books of the corporation of Freeman's share is not covered by any of those verbs. The suggestion is without merit. There has never been any doubt but that Freeman paid part of his $129 monthly rental for the Page 396 U. S. 237 assignment of the membership share in Little Hunting Park. The transaction clearly fell within the "lease." The right to "lease" is protected by § 1982 against the actions of third parties, as well as against the actions of the immediate lessor. Respondents' actions in refusing to approve the assignment of the membership share in this case was clearly an interference with Freeman's right to "lease." A narrow construction of the language of § 1982 would be quite inconsistent with the broad and sweeping nature of the protection meant to be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from which § 1982 was derived. See 392 U.S. at 392 U. S. 422-437.We turn to Sullivan's expulsion for the advocacy of Freeman's cause. If that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. That is why we said in Barrows v. Jackson, 346 U. S. 249, 346 U. S. 259, that the white owner is at times "the only effective adversary" of the unlawful restrictive covenant. Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action.We noted in Jones v. Mayer Co. that the Fair Housing Title of the Civil Rights Act of 1968, 82 Stat. 81, in no way impaired the sanction of § 1982. 392 U.S. at 392 U. S. 41 417. What we said there is adequate to dispose of the suggestion that the public accommodations provision of the Civil Rights Act of 1964, 78 Stat. 243, in some way supersedes the provisions of the 1866 Act. For the hierarchy of administrative machinery provided by the 1964 Act is not at war with survival of the principles embodied in § 1982. There is, moreover, a saving clause in the 1964 Act as respects "any Page 396 U. S. 238 right based on any other Federal . . . law not inconsistent" with that Act. [Footnote 4]Section 1982 derived from the 1866 Act is plainly "not inconsistent" with the 1964 Act, which has been construed as not "preempting every other mode of protecting a federal right' or as granting immunity" to those who had long been subject to federal law. United States v. Johnson, 390 U. S. 563, 390 U. S. 566.We held in Jones v. Mayer Co. that, although § 1982 is couched in declaratory terms and provides no explicit method of enforcement, a federal court has power to fashion an effective equitable remedy. 392 U.S. at 392 U. S. 414, n. 13. That federal remedy for the protection of a federal right is available in the state court, if that court is empowered to grant injunctive relief generally, as is the Virginia court. Va.Code Ann. § 8-610 (1957 Repl.Vol.).Finally, as to damages, Congress, by 28 U.S.C. § 1343(4), created federal jurisdiction for "damages or . . . equitable or other relief under any Act of Congress providing for the protection of civil rights. . . ." We reserved in Jones v. Mayer Co., 392 U.S. at 392 U. S. 414-415, n. 14, the question of what damages, if any, might be appropriately recovered for a violation of § 1982.We had a like problem in Bell v. Hood, 327 U. S. 678, where suit was brought against federal officers for alleged Page 396 U. S. 239 violations of the Fourth and Fifth Amendments. The federal statute did not in terms at least provide any remedy. We said:"[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that, where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done."Id. at 327 U. S. 684.The existence of a statutory right implies the existence of all necessary and appropriate remedies. See Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548, 281 U. S. 569-570. As stated in Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 241 U. S. 39:"A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied. . . ."Compensatory damages for deprivation of a federal right are governed by federal standards, as provided by Congress in 42 U.S.C. § 1988, which states:"The jurisdiction in civil . . . matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary Page 396 U. S. 240 to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. . . ."This means, as we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry, 293 F.2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired. We do not explore the problem further, as the issue of damages was not litigated below.It is suggested, not by any party, but by the dissent, that any relief should await proceedings under the fair housing provisions of Title VIII of the Civil Rights Act of 1968. 82 Stat. 81, 42 U.S.C. § 3601 et seq. (1964 ed., Supp. IV). But petitioners' suits were commenced on March 16, 1966, two years before that Act was passed. It would be irresponsible judicial administration to dismiss a suit because of an intervening Act [Footnote 5] which has no possible application to events long preceding its enactment.Reversed

U.S. Supreme CourtSullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969)Sullivan v. Little Hunting Park, Inc.No. 33Argued October 13, 1969Decided December 15, 1969396 U.S. 229SyllabusLittle Hunting Park is a Virginia nonstock corporation operating playground facilities and a community park for residents in an area in Fairfax County, Virginia. A membership share entitles a shareholder and his family to use its facilities, and, under the bylaws, when he rents his house, he may assign the share to his tenant, subject to approval by the board of directors. The facilities have been open to any white persons in the geographic area. Petitioner Sullivan, who owned and lived in a house in the area, leased to petitioner Freeman another house which Sullivan owned therein and assigned to Freeman his membership share. The board refused approval of the assignment because Freeman was a Negro, and thereafter expelled Sullivan from the corporation for protesting that action. Petitioners each then sued for injunctive relief and monetary damages. The trial court, concluding that Little Hunting Park was a private social club, dismissed the complaints. The Supreme Court of Appeals of Virginia denied the appeals on the ground that they were not perfected as provided by law in that opposing counsel had not been given reasonable notice and opportunity, as required by a procedural rule of that court, to examine and correct the transcripts. Opposing counsel had been given three days' notice for that purpose, and had not complained that the period was unreasonable. This Court granted certiorari, vacated the judgments, and remanded the case to the Supreme Court of Appeals for further consideration in light of Jones v. Mayer Co., 392 U. S. 409. That court again rejected the appeals on the basis of its previous position that it lacked jurisdiction because of petitioners' failure to comply with its procedural rule. This Court again granted certiorari. Freeman no longer resides in the area served by Little Hunting Park, and his claim is confined to damages.Held:1. The notice rule is discretionary and not jurisdictional, not having been so consistently applied by Virginia's highest court as to deprive it of jurisdiction to entertain the federal claim presented here or to bar this Court's review of this case by certiorari. Pp. 396 U. S. 232-234. Page 396 U. S. 2302. Petitioner Sullivan's membership share in Little Hunting Park (which is clearly not a private social club) was an integral part of the lease, and respondents' racially discriminatory refusal to approve the assignment to Freeman constituted a violation of 42 U.S.C. § 1982, cf. Jones v. Mayer Co., supra, the right to lease being protected by that provision against the action of third parties as well as against the action of the lessor. Pp. 396 U. S. 234-237.3. Sullivan has standing under § 1982 to maintain this action as the "effective adversary" in Freeman's behalf. Barrows v. Jackson, 346 U. S. 249, 346 U. S. 259. P. 396 U. S. 237.4. The Public Accommodations provision of the Civil Rights Act of 1964 does not affect the coverage of 42 U.S.C. § 1982. See Jones v. Mayer Co., supra, at 392 U. S. 413-417. Pp. 396 U. S. 237-238.5. The state court's power to grant general injunctive relief includes the power to protect the federal right under § 1982 here involved. P. 396 U. S. 238.6. Petitioners are entitled to compensatory damages for violation of their rights under § 1982 and, though such damages are measured by federal standards, both federal and state rules on damages may be used. Pp. 396 U. S. 238-240.7. The fair-housing provisions of Title VIII of the Civil Rights Act of 1968, which was enacted long after petitioners brought their suits, do not foreclose relief here. P. 396 U. S. 240.Reversed. See: 209 Va. 279, 163 S.E.2d 588. Page 396 U. S. 231

1968_65

MR. JUSTICE HARLAN delivered the opinion of the Court.This case presents constitutional questions arising out of the conviction of the petitioner, Dr. Timothy Leary, for violation of two federal statutes governing traffic in marihuana.The circumstances surrounding petitioner's conviction were as follows. On December 20, 1965, petitioner left New York by automobile, intending a vacation trip to Yucatan, Mexico. He was accompanied by his daughter and son, both teenagers, and two other persons. On Page 395 U. S. 10 December 22, 1965, the party drove across the International Bridge between the United States and Mexico at Laredo, Texas. They stopped at the Mexican customs station and, after apparently being denied entry, drove back across the bridge. They halted at the American secondary inspection area, explained the situation to a customs inspector, and stated that they had nothing from Mexico to declare. The inspector asked them to alight, examined the interior of the car, and saw what appeared to be marihuana seeds on the floor. The inspector then received permission to search the car and passengers. Small amounts of marihuana were found on the car floor and in the glove compartment. A personal search of petitioner's daughter revealed a silver snuff box containing semi-refined marihuana and three partially smoked marihuana cigarettes.Petitioner was indicted and tried before a jury in the Federal District Court for the Southern District of Texas, on three counts. First, it was alleged that he had knowingly smuggled marihuana into the United States, in violation of 21 U.S.C. § 176a. [Footnote 1] Second, it was charged Page 395 U. S. 11 that he had knowingly transported and facilitated the transportation and concealment of marihuana which had been illegally imported or brought into the United States, with knowledge that it had been illegally imported or brought in, all again in violation of § 176a. [Footnote 2] Third, it was alleged that petitioner was a transferee of marihuana, and had knowingly transported, concealed, and facilitated the transportation and concealment of marihuana without having paid the transfer tax imposed by the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., thereby violating 26 U.S.C. § 4744(a)(2). [Footnote 3]After both sides had presented their evidence and the defense had moved for a judgment of acquittal, the District Court dismissed the first or smuggling count. [Footnote 4] The jury found petitioner guilty on the other two counts. He was tentatively sentenced to the maximum punishment, pending completion of a study and recommendations to be used by the District Court in fixing his final sentence. [Footnote 5] On appeal, the Court of Appeals for the Page 395 U. S. 12 Fifth Circuit affirmed. 383 F.2d 851 (1967). That court subsequently denied a petition for rehearing and rehearing en banc. 392 F.2d 220 (1968).We granted certiorari, 392 U.S. 903 (1968), to consider two questions: (1) whether petitioner's conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination; (2) whether petitioner was denied due process by the application of the part of 21 U.S.C. § 176a which provides that a defendant's possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. For reasons which follow, we hold in favor of the petitioner on both issues, and reverse the judgment of the Court of Appeals.IWe consider first petitioner's claim that his conviction under the Marihuana Tax Act violated his privilege against self-incrimination.APetitioner argues that reversal of his Marihuana Tax Act conviction is required by our decisions of last Term in Marchetti v. United States, 390 U. S. 39 (1968), Grosso v. United States, 390 U. S. 62 (1968), and Haynes v. United States, 390 U. S. 85 (1968). In Marchetti, we held that a plea of the Fifth Amendment privilege provided a complete defense to a prosecution for failure to register and pay the occupational tax on wagers, as required Page 395 U. S. 13 by 26 U.S.C. §§ 4411-4412. We noted that wagering was a crime in almost every State, and that 26 U.S.C. § 6107 required that lists of wagering taxpayers be furnished to state and local prosecutors on demand. We concluded that compliance with the statute would have subjected petitioner to a "real and appreciable'" [Footnote 6] risk of self-incrimination. We further recognized that the occupational tax was not imposed in "`an essentially noncriminal and regulatory area . . . ,'" 390 U.S. at 390 U. S. 57, [Footnote 7] but was "directed to a `selective group inherently suspect of criminal activities.'" [Footnote 8] We found that it would be inappropriate to impose restrictions on use of the information collected under the statute -- a course urged by the Government as a means of removing the impact of the statute upon the privilege against self-incrimination -- because of the evident congressional purpose to provide aid to prosecutors. We noted that, unlike the petitioner in Shapiro v. United States, 335 U. S. 1 (1948), Marchetti was not required to supply information which had a "public aspect" or was contained in records of the kind he customarily kept.In Grosso, we held that the same considerations required that a claim of the privilege be a defense to prosecution under 26 U.S.C. § 4401, which imposes an excise tax on proceeds from wagering. And in Haynes, we held for the same reasons that assertion of the Fifth Amendment privilege provided a defense to prosecution for possession of an unregistered weapon under the National Firearms Act, 26 U.S.C. § 5851, despite the fact that, in "uncommon" instances, registration under the statute would not be incriminating. See 390 U.S. at 390 U. S. 96-97, 390 U. S. 99. Page 395 U. S. 14BIn order to understand petitioner's contention that compliance with the Marihuana Tax Act would have obliged him to incriminate himself within the meaning of the foregoing decisions, it is necessary to be familiar with the statutory scheme. The Marihuana Tax Act has two main subparts. The first imposes a tax on transfers of marihuana, the second an occupational tax upon those who deal in the drug. It is convenient to begin with the occupational tax provisions, 26 U.S.C. §§ 4751-4753.Section 4751 provides that all persons who "deal in" marihuana shall be subject to an annual occupational tax. Subsections require that specified categories of persons, such as importers, producers, physicians, researchers, and millers pay varying rates of tax per year. See §§ 4751(1)-(4), (6). Persons who "deal in" marihuana but do not fall into any of the specified categories are required to pay $3 per year. See § 4751(5). Section 4753 provides that, at the time of paying the tax, the taxpayer must "register his name or style and his place or places of business" at the nearest district office of the Internal Revenue Service.The first of the transfer tax provisions, 26 U.S.C. § 4741, imposes a tax "upon all transfers of marihuana which are required by section 4742 to be carried out in pursuance of written order forms." Section 4741 further provides that, on transfers to persons registered under § 4753, the tax is $1 per ounce, while, on transfers to persons not so registered, the tax is $100 per ounce. The tax is required to be paid by the transferee "at the time of securing each order form." [Footnote 9] With certain exceptions not here relevant, [Footnote 10] § 4742 makes it unlawful for any Page 395 U. S. 15 person, "whether or not required to pay a special tax and register under sections 4751 to 4753," to transfer marihuana except pursuant to a written order form to be obtained by the transferee. A regulation, 26 CFR § 152.69, provides that the order form must show the name and address of the transferor and transferee, their § 4753 registration numbers, if they are registered, and the quantity of marihuana transferred. Another regulation, 26 CFR § 152.66, requires the transferee to submit an application containing these data in order to obtain the form. Section 4742(d) of the Act requires the Internal Revenue Service to "preserve" in its records a duplicate copy of each order form which it issues.Another statutory provision, 26 U.S.C. § 4773, assures that the information contained in the order form will be available to law enforcement officials. That section provides that the duplicate order forms required to be kept by the Internal Revenue Service shall be open to inspection by Treasury personnel and state and local officials charged with enforcement of marihuana laws, and that, upon payment of a fee, such officials shall be furnished copies of the forms. [Footnote 11]Finally, 26 U.S.C. § 4744(a) makes it unlawful for a transferee required to pay the § 4741(a) transfer tax either to acquire marihuana without having paid the tax or to transport, conceal, or facilitate the transportation or concealment of, any marihuana so acquired. [Footnote 12] Petitioner Page 395 U. S. 16 was convicted under § 4744(a). He conceded at trial that he had not obtained an order form or paid the transfer tax.CIf read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a "real and appreciable" risk of self-incrimination within the meaning of our decisions in Marchetti, Grosso, and Haynes. Sections 4741-4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana, but as a transferee who had not registered and paid the occupational tax under §§ 47514753. Section 4773 directed that this information be conveyed by the Internal Revenue Service to state and local law enforcement officials on request.Petitioner had ample reason to fear that transmittal to such officials of the fact that he was a recent, unregistered transferee of marihuana "would surely prove a significant link in a chain' of evidence tending to establish his guilt" [Footnote 13] under the state marihuana laws then in effect. [Footnote 14] When petitioner failed to comply with the Act, in late 1965, possession of any quantity of marihuana was apparently a crime in every one of the 50 States, including New York, where petitioner claimed the transfer occurred, and Texas, where he was arrested and convicted. [Footnote 15] It is Page 395 U. S. 17 true that almost all States, including New York and Texas, had exceptions making lawful, under specified conditions, possession of marihuana by: (1) state-licensed manufacturers and wholesalers; (2) apothecaries; (3) researchers; (4) physicians, dentists, veterinarians, and certain other medical personnel; (5) agents or employees of the foregoing persons or common carriers; (6) persons for whom the drug had been prescribed or to whom it had been given by an authorized medical person, and (7) certain public officials. [Footnote 16] However, individuals in the first four of these classes are among those compelled to register and pay the occupational tax under §§ 4751-4753; [Footnote 17] in consequence of having registered, they are required to pay only a $1 per ounce transfer tax under § 4741(a)(1). It is extremely unlikely that such persons will remain unregistered, for failure to register renders them liable not only to an additional $99 per ounce transfer tax, but Page 395 U. S. 18 also to severe criminal penalties. [Footnote 18] Persons in the last three classes mentioned above appear to be wholly exempt from the order form and transfer tax requirements. [Footnote 19]Thus, at the time petitioner failed to comply with the Act, those persons who might legally possess marihuana under state law were virtually certain either to be registered under § 4753 or to be exempt from the order form requirement. It follows that the class of possessors who were both unregistered and obliged to obtain an order form constituted a "selective group inherently suspect of criminal activities." Since compliance with the transfer tax provisions would have required petitioner unmistakably to identify himself as a member of this "selective" and "suspect" group, we can only decide that, when read according to their terms, these provisions created a "real and appreciable" hazard of incrimination.DThe Government, however, vigorously contends that, when the Act is considered together with the accompanying regulations, and in light of existing administrative practice, its incriminatory aspect will be seen to vanish or shrink to less than constitutional proportions. The Government points first to regulations, 26 CFR § § 152.22, 152.23, added in 1964, which provide that every applicant for registration under §§ 4751-4753 Page 395 U. S. 19 must show that he is legally qualified to deal in marihuana according to the laws of the jurisdiction in which he is operating, and that the district director shall not permit an applicant to register until the director is satisfied that this is true. The Government then cites two other regulations, relating to applications for order forms under § 4742. The first, 26 CFR § 152.67, provides that such applications "[g]enerally . . . shall be signed by the same person or persons signing the application for registration," but, when this is impracticable,"they may be signed by another person, provided a power of attorney authorizing such other person to sign the applications . . . has previously been filed. . . ."The second regulation, 26 CFR § 152.68, states that, upon receipt of an application the district director "shall" compare the signature on the application "with that appearing on the application for registration or in the power of attorney," and that, "[u]nless the district director is satisfied that the application is authentic it will not be honored."The Government asserts that these regulations clearly signify that no person will be permitted to register unless his activities are permissible under the law of his jurisdiction, and that no one will be permitted to obtain an order form and prepay the transfer tax unless he has registered. [Footnote 20] The result, the Government contends, is simply to prohibit nonregistrants like petitioner from dealing in marihuana at all. The Government further asserts that the administrative practice of the Internal Revenue Service and the Bureau of Narcotics has always been consistent with this interpretation, though it concedes that there apparently has never been an attempt by Page 395 U. S. 20 a nonregistrant to prepay the tax. The Government does admit uncertainty as to whether the fact of such an attempt would have been communicated to law enforcement officials; however, it points out that nothing in the statute or regulations appears to compel such disclosure. [Footnote 21] The Government argues that the regulations and administrative practice effectively refute the existence of a substantial hazard of incrimination at the time petitioner acquired marihuana: first, because a nonregistrant would have known that he could not obtain an order form, and consequently never would have applied; second, because there was no substantial risk that an unsuccessful application would have been brought to the attention of law enforcement officials.We cannot accept the Government's argument, for we find that Congress did intend that a nonregistrant should be able to obtain an order form and prepay the transfer tax. This congressional intent appears both from the language of the Act and from its legislative history.We begin with the words of the statute. Section 4741(a), when read in conjunction with § 4742, imposes a tax upon every transfer of marihuana, with a few exceptions not here relevant. [Footnote 22] Section 4741(a)(1) states that the tax on registrants shall be $1 per ounce and § 4741(a)(2) that the tax on transfers to nonregistrants shall be $100 per ounce. Section 4741(b) states that "[s]uch tax shall be paid by the transferee at the time of securing each order form and shall be in addition to the price of such form." (Emphasis added.) Since § 4741(b) makes no distinction between the § 4741(a)(1) tax on transfers to registrants and the § 4741(a)(2) tax Page 395 U. S. 21 on transfers to nonregistrants, it seems clear that Congress contemplated that nonregistrant as well as registrant transferees should be able to obtain order forms and prepay the tax.The legislative history also strongly indicates that the Act was intended merely to impose a very high tax on transfers to nonregistrants, and not to prohibit such transfers entirely. As a taxing measure, the bill, of course, originated in the House of Representatives. At the start of the first hearing on the bill, before the House Ways and Means Committee, the committee chairman announced that he had introduced the bill at the request of the Secretary of the Treasury. [Footnote 23] The transfer provisions of the bill then read essentially as they do now. [Footnote 24] The first witness to appear before the Committee was the Treasury Department's Assistant General Counsel, Clinton M. Hester. He began by stating that the bill's purpose was"not only to raise revenue from the marihuana traffic, but also to discourage the current and widespread undesirable use of marihuana by smokers and drug addicts. . . . [Footnote 25]"He stated that, in form the bill was a "synthesis" of the Harrison Narcotics Act, now 26 U.S.C. § 4701 et seq., and the National Firearms Act, now 26 U.S.C. § 5801 et seq. [Footnote 26] Both of these statutes compelled dealers in the respective goods to register and pay a special tax. Both prohibited transfer except in pursuance of a written form and imposed a transfer tax. However, the transfer provisions differed in that the Narcotics Act provided that no one except a registrant could legally obtain an order form, see 26 U.S.C. § 4705(g), while the Firearms Act merely imposed Page 395 U. S. 22 a $200 tax upon each transfer of a firearm covered by the Act.The Treasury witness explained that the marihuana tax bill generally followed the plan of the Narcotics Act insofar as it required dealers in marihuana to register and prohibited transfers except by order form. But he testified that, because of constitutional doubts:"[a]t this point, this bill, like the National Firearms Act, departs from the plan of the Harrison Narcotic Act which limits the right to purchase narcotic drugs to those persons who are permitted to register under that act. . . .""[I]n order to obviate the possibility of [an] attack upon the constitutionality of this bill, it, like the National Firearms Act, permits the transfer of marihuana to nonregistered persons upon the payment of a heavy transfer tax. The bill would permit the transfer of marihuana to anyone, but would impose a $100 per ounce tax upon a transfer to a person who might use it for purposes which are dangerous and harmful to the public. . . . [Footnote 27]"Mr. Hester was also the first witness before a subcommittee of the Senate Finance Committee. There, he testified in less detail, stating at different points that the purpose of the transfer provisions was "to discourage the widespread use of the drug by smokers and drug addicts," [Footnote 28] "to render extremely difficult the acquisition of Page 395 U. S. 23 marihuana by persons who desire it for illicit uses," [Footnote 29] "to prevent transfers to persons who would use marihuana for undesirable purposes," [Footnote 30] and "through the $100 transfer tax, to prevent the drug from coming into the hands of those who will put it to illicit uses." [Footnote 31]The House and Senate reports describe the purposes of the transfer provisions largely in the language of Mr. Hester's testimony. The House report declares that the purpose was "to discourage the widespread use of the drug by smokers and drug addicts," [Footnote 32] to "render extremely difficult the acquisition of marihuana by persons who desire it for illicit uses," [Footnote 33] and, "through the $100 transfer tax, to prevent the drug from coming into the hands of those who will put it to illicit uses." [Footnote 34] In discussing the issue of constitutionality, the report recites that "[t]he law is . . . settled that Congress has the power to enact a tax which is so heavy as to discourage the transactions or activities taxed," [Footnote 35] and states that "[t]hese cases sustain the $100 tax imposed . . . upon transfers . . . to unregistered persons." [Footnote 36] The Senate report, without discussing constitutionality, otherwise states the purpose of the transfer provisions in the very same words as the House report. [Footnote 37] Thus, the committee reports confirm Mr. Hester's account of the bill's purposes. In short, the legislative history fully accords with the statutory language.Upon this evidence, we have no hesitation in concluding that the interpretation which the Government would Page 395 U. S. 24 give to the transfer provisions is contrary to the manifest congressional intent that transfers to nonregistrants be taxed, not forbidden. Insofar as the regulations which require comparison of signatures necessarily compel the result urged by the Government, they must be regarded as contrary to the statute, and hence beyond the scope of the regulation-making authority which was delegated by Congress. [Footnote 38] It is true that these regulations were promulgated in 1937, and that Congress reenacted the entire Act in 1954, while they were in effect. However, the scanty legislative history accompanying that reenactment gives no hint that Congress knew of these particular regulations, much less of the indirect impact which the Government now ascribes to them. [Footnote 39] As we recently noted in Massachusetts Trustees v. United States, 377 U. S. 235, 377 U. S. 241, 377 U. S. 242 (1964), congressional reenactment of a statute, even without any apparent knowledge of a particular regulation, can "strengthen Page 395 U. S. 25 to some extent" the regulation's claim to validity, but reenactment cannot save a regulation which "contradict[s] the requirements" of the statute itself. When a regulation conflicts with the statute, the fact of subsequent reenactment "is immaterial, for Congress could not add to or expand [the] statute by impliedly approving the regulation." Commissioner v. Acker, 361 U. S. 87, 361 U. S. 93 (1959). [Footnote 40]Nor are we persuaded by the Government's argument that its construction has been followed by the Internal Revenue Service and the Bureau of Narcotics ever since the passage of the Act, and that this "longstanding" interpretation by the agencies charged with administering the Act should be controlling. We have often recognized that, as a general matter, a longstanding, contemporaneous construction of a statute by the administering agencies is "entitled to great weight," FTC v. Mandel Bros., 359 U. S. 385, 359 U. S. 391 (1959), and will be "show[n] great deference," Udall v. Tallman, 380 U. S. 1, 380 U. S. 16 (1965). [Footnote 41] However, in this instance, the Government admits that, until our decisions last Term in Marchetti, Grosso, and Haynes, the alleged interpretation had been made known only through the regulations themselves, since there apparently had never been an application by a nonregistrant to prepay the transfer tax. Moreover, in its brief in this Court in United States v. Sanchez, 340 U. S. 42 (1950), the United States plainly took the position that the Act imposed only a tax, and not a prohibition on transfers to nonregistrants, [Footnote 42] implying that, at that time, the alleged administrative construction was unknown even to those charged with representing the Page 395 U. S. 26 United States in this Court. In these circumstances, the alleged administrative construction can furnish no additional support for the Government's argument.The foregoing shows that, at the time petitioner acquired marihuana, he was confronted with a statute which, on its face, permitted him to acquire the drug legally, provided he paid the $100 per ounce transfer tax and gave incriminating information, and simultaneously with a system of regulations which, according to the Government, prohibited him from acquiring marihuana under any conditions. We have found those regulations so out of keeping with the statute as to be ultra vires. Faced with these conflicting commands, we think petitioner would have been justified in giving precedence to the higher authority: the statute. [Footnote 43] "[L]iteral and full compliance' with all the statutory requirements" [Footnote 44] would have entailed a very substantial risk of self-incrimination. See supra at 395 U. S. 118.The United States has not urged us, as it did in Marchetti, Grosso, and Haynes, to avoid this constitutional difficulty by placing restrictions upon the use of information gained under the transfer provisions. We declined to impose use restrictions in those cases because we found that the furnishing of information to interested prosecutors was a "significant element of Congress' purposes in adopting" the statutes there involved. Marchetti v. United States, supra, at 390 U. S. 59 (1968). [Footnote 45] The Page 395 U. S. 27 text and legislative history of the Marihuana Tax Act plainly disclose a similar congressional purpose. As has been noted, 26 U.S.C. § 4773 requires that copies of order forms be kept available for inspection by state and local officials, and that copies be furnished to such officials on request. The House and Senate reports both state that one objective of the Act was "the development of an adequate means of publicizing dealings in marihuana in order to tax and control the traffic effectively." [Footnote 46] In short, we think the conclusion inescapable that the statute was aimed at bringing to light transgressions of the marihuana laws. Hence, as in last Term's cases, we decline to impose use restrictions, and are obliged to conclude that a timely and proper assertion of the privilege should have provided a complete defense to prosecution under § 4744(a)(2).EThere remain the further questions whether this petitioner's claim of the privilege was timely, and whether it was waived. As for timeliness, petitioner did not assert the privilege as a defense to the § 4744(a) count until his motion for a new trial. The Court of Appeals evidently regarded the claim as timely, for it rejected it on the merits both in its original opinion and in its denial of rehearing. See 383 F.2d at 870; 392 F.2d at 221-222. The Government does not contend that the claim of the privilege was untimely. Petitioner's trial occurred before our decisions in Marchetti, Grosso, and Haynes, and the Court of Appeals for the Fifth Circuit had recently rejected an identical self-incrimination claim. See Haynes v. United States, 339 F.2d 30 (1964). Although it would have been preferable for petitioner to have asserted the privilege at trial, we hold that, in the circumstances of this case, his failure to raise Page 395 U. S. 28 the issue at that time did not amount to a waiver of the privilege. See Grosso v. United States, 390 U. S. 62, 390 U. S. 70-71 (1968).In denying Leary's petition for rehearing, the Court of Appeals, in addition to holding the privilege generally inapplicable to prosecutions under § 4744(a), found that petitioner's claim of the privilege was improper because he "took the stand and affirmatively waived the privilege . . . by testifying fully to the details of his acquisition and transportation of marihuana without having paid the tax. . . ." 392 F.2d at 222. In relying for that proposition on the statement in Marchetti that our decision in that case would not provide a shield for any taxpayer who was "outside the privilege's protection," 390 U.S. at 390 U. S. 61, we think the Court of Appeals misconceived the thrust of that dictum. The aspect of the self-incrimination privilege which was involved in Marchetti, and which petitioner asserts here, is not the undoubted right of an accused to remain silent at trial. It is, instead, the right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act. Thus, petitioner is not asserting that he had a right to stand mute at his trial, but that he cannot be convicted for having failed to comply with the transfer provisions of the Act at the time he acquired marihuana in 1965. His admission at trial that he had indeed failed to comply with the statute was perfectly consistent with the claim that that omission was excused by the privilege. Hence, it could not amount to a waiver of that claim.The Government suggests that petitioner waived his right to plead self-incrimination in yet another way, by testifying at trial that he had violated the statute for reasons entirely unrelated to fear of self-incrimination. It is true that some portions of petitioner's testimony indicate that his noncompliance was motivated, at least Page 395 U. S. 29 in part, by his conviction that the Act imposed an illegal tax upon religion or upon the "pursuit of knowledge" [Footnote 47] and by his belief that, in consequence of the system of regulations and administrative practice described above, he would not be permitted to pay the tax. [Footnote 48] However, other parts of petitioner's testimony clearly indicate that he also was influenced by an apprehension that, by trying to pay the tax, he might incriminate himself. [Footnote 49] We cannot say that petitioner's testimony, taken as a whole, amounted to a waiver of the privilege. We conclude that petitioner's invocation of the privilege was proper, and that it should have provided a full defense to the third count of the indictment. Accordingly, we reverse petitioner's conviction under 26 U.S.C. § 4744(a)(2).IINext, we consider whether, in the circumstances of this case, the application of the presumption contained in 21 U.S.C. 176a denied petitioner due process of law. Page 395 U. S. 30AInsofar as here relevant, § 176a imposes criminal punishment upon every person who:"knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law . . or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law. . . ."A subsequent paragraph establishes the presumption now under scrutiny:"Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury."The second count of the indictment charged petitioner with having violated the "transportation" and "concealment" provisions of § 176a. [Footnote 50] Petitioner admitted at trial that he had acquired marihuana in New York; had driven with it to Laredo, Texas; had continued across the bridge to the Mexican customs station, and then had returned to the United States. He further testified that he did not know where the marihuana he acquired had been grown. [Footnote 51]In view of this testimony, the trial court instructed the jury that it might find petitioner guilty of violating Page 395 U. S. 31 § 176a on either of two alternative theories. Under the first, or "South-North" theory, a conviction could have been based solely upon petitioner's own testimony that the marihuana had been brought back from Mexico into the United States and that, with knowledge of that fact, petitioner had continued to transport it. Under the second, or "North-South" theory, the conviction would have depended partly upon petitioner's testimony that he had transported the marihuana from New York to Texas and partly upon the challenged presumption. [Footnote 52]The Government contends that, by giving testimony at trial which established all elements of the offense under the "South-North" theory, and by failing to object to the jury instructions on the ground now advanced, petitioner foreclosed himself from raising the point thereafter. We cannot agree. Even assuming that petitioner's testimony did supply all the evidence required for a valid conviction under the "South-North" theory, the jury nevertheless was told that it could alternatively convict with the aid of the presumption under the "North-South" theory. For all we know, the conviction did rest on that ground. It has long been settled that, when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that Page 395 U. S. 32 the conviction be set aside. See, e.g., Stromberg v. California, 283 U. S. 359 (1931).It is true that petitioner did not object to the jury instructions on the basis of the presumption's alleged unconstitutionality. [Footnote 53] However, he did rely upon that ground in his previous motion for a directed verdict at the close of the prosecution's case, and urged it again in his subsequent motion for a new trial. [Footnote 54] Both motions were denied. The Court of Appeals considered petitioner's constitutional argument on the merits, and rejected it. See 383 F.2d at 868-870. In these circumstances, we conclude that the question is properly before us. [Footnote 55]BBy what criteria is the constitutionality of the § 176a presumption to be judged?Early decisions of this Court set forth a number of different standards by which to measure the validity of statutory presumptions. [Footnote 56] However, in Tot v. United Page 395 U. S. 33 States, 319 U. S. 463 (1943), the Court singled out one of these tests as controlling, and the Tot rule has been adhered to in the two subsequent cases in which the issue has been presented. The Tot Court had before it a federal statute [Footnote 57] which, as construed, made it a crime for one previously convicted of a crime of violence to receive any firearm or ammunition in an interstate transaction. The statute further provided that"the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act."The Court, relying upon a prior decision in a civil case, [Footnote 58] held that the "controlling" test for determining the validity of a statutory presumption was "that there be a rational connection between the facts proved and the fact presumed." 319 U.S. at 319 U. S. 467. The Court stated:"Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference Page 395 U. S. 34 is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts."319 U.S. at 319 U. S. 467-468 (footnotes omitted).The Tot Court reduced to the status of a "corollary" another test which had some support in prior decisions: [Footnote 59] whether it was more convenient for the defendant or for the Government to supply proof of the ultimate fact which the presumption permitted to be inferred. The Court stated that "[t]he argument from convenience is admissible only where the inference is a permissible one. . . ." 319 U.S. at 319 U. S. 469. The Court rejected entirely another suggested test with some backing in the case law, [Footnote 60] according to which the presumption should be sustained if Congress might legitimately have made it a crime to commit the basic act from which the presumption allowed an inference to be drawn. [Footnote 61] The Tot Court stated simply that, "for whatever reason," Congress had not chosen to make the basic act a crime. Id. at 319 U. S. 472.Applying the "rational connection" test, the Court held the Tot presumption unconstitutional. The Court rejected the contention that, because most States forbade intrastate acquisition of firearms without a record of the transaction or registration of ownership, it could be inferred merely from possession that an acquisition which did not meet these requirements must have been interstate, noting the alternative possibilities of unlawful Page 395 U. S. 35 intrastate acquisition and interstate shipment prior to the beginning of state regulation. See id. at 468. [Footnote 62]The two subsequent cases in which this Court ruled upon the constitutionality of criminal statutory presumptions, United States v. Gainey, 380 U. S. 63 (1965), and United States v. Romano, 382 U. S. 136 (1965), involved companion sections of the Internal Revenue Code dealing with illegal stills. The presumption in Gainey was worded similarly to the one at issue here; it permitted a jury to infer from a defendant's presence at an illegal still that he was "carrying on" the business of a distiller "unless the defendant explains such presence to the satisfaction of the jury. . . ." See 26 U.S.C. § § 5601(a)(4), 5601(b)(2).We held that the Gainey presumption should be tested by the "rational connection" standard announced in Tot. We added:"The process of making the determination of rationality is, by its nature, highly empirical, and, in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it."380 U.S. at 380 U. S. 67. Applying these principles, we sustained the Gainey presumption, finding that it "did no more than accord to the evidence, if unexplained, its natural probative force.'" 380 U.S. at 380 U. S. 71.The presumption under attack in United States v. Romano, supra, was identical to that, in Giainey except that it authorized the jury to infer from the defendant's presence at an illegal still that he had possession, custody, or control of the still. See 26 U.S.C. §§ 5601(a)(1), Page 395 U. S. 36 5601(b)(1). We held this presumption invalid. While stating that the result in Gainey was entirely justified because"[p]resence at an operating still is sufficient evidence to prove the charge of 'carrying on' because anyone present at the site is very probably connected with the illegal enterprise,"382 U.S. at 382 U. S. 141, we concluded:"Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt -- 'the inference of the one from proof of the other is arbitrary. . . .' Tot v. United States, 319 U. S. 463, 319 U. S. 467."Ibid. [Footnote 63]The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. [Footnote 64] And in the judicial assessment the congressional determination favoring the particular presumption must, of course, weigh heavily. Page 395 U. S. 37CHow does the § 176a presumption fare under these standards?So far as here relevant, the presumption, quoted supra at 395 U. S. 30, authorizes the jury to infer from a defendant's possession of marihuana two necessary elements of the crime: (1) that the marihuana was imported or brought into the United States illegally, and (2) that the defendant knew of the unlawful importation or bringing in. [Footnote 65] Petitioner argues that neither inference is valid, citing undisputed testimony at his trial to the effect that marihuana will grow anywhere in the United States, and that some actually is grown here. [Footnote 66] The Government contends, on the other hand, that both inferences are permissible. For reasons that follow, we hold unconstitutional that part of the presumption which relates to a defendant's knowledge of illegal importation. Consequently, we do not reach the question of the validity of the "illegal importation" inference.With regard to the "knowledge" presumption, we believe that Tot and Romano require that we take the statute at face value and ask whether it permits conviction upon insufficient proof of "knowledge," rather than inquire whether Congress might have made possession itself a crime. [Footnote 67] In order thus to determine the constitutionality Page 395 U. S. 38 of the "knowledge" inference, one must have direct or circumstantial data regarding the beliefs of marihuana users generally about the source of the drug they consume. Such information plainly is "not within specialized judicial competence or completely commonplace," United States v. Gainey, supra, at 380 U. S. 67. Indeed, the presumption apparently was enacted to relieve the Government of the burden of having to adduce such evidence at every trial, and none was introduced by the prosecution at petitioner's trial. Since the determination of the presumption's constitutionality is "highly empirical," ibid., it follows that we must canvass the available, pertinent data.Of course, it must be kept in mind that "significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it." Ibid. However, it quickly becomes apparent that the legislative record does not supply an adequate basis upon which to judge the soundness of the "knowledge" part of the presumption. We have therefore taken other materials into account as well, in an effort to sustain the presumption. In so doing, we have not confined ourselves to data available at the time the presumption was enacted in 1956, but have also considered more recent information, in order both to obtain a broader general background and to ascertain whether the intervening years have witnessed significant changes which might bear upon the presumption's validity. [Footnote 68]As has been noted, we do not decide whether the presumption of illegal importation is itself constitutional. Page 395 U. S. 39 However, in view of the paucity of direct evidence as to the beliefs of marihuana smokers generally about the source of their marihuana, we have found it desirable to survey data concerning the proportion of domestically consumed marihuana which is of foreign origin, since, in the absence of better information, the proportion of marihuana actually imported surely is relevant in deciding whether marihuana possessors "know" that their marihuana is imported.DSince the importation question is a subsidiary one, we take it up first, beginning, of course, with the legislative history of § 176a. The House and Senate committee reports and the floor debates are relatively unhelpful. [Footnote 69] More informative are the records of extensive hearings before House and Senate committees. [Footnote 70] Near the outset of the Senate committee hearings, the then Commissioner of Narcotics, Harry J. Anslinger, estimated that 90% of all marihuana seized by federal authorities had been smuggled from Mexico, and that, although"there is considerable volunteer growth from old plantings in the Middle West . . . , [t]here is very little of the local land used because it just does not have the advantage of the long summer growing, and [domestic marihuana] is not as potent as the Mexican drug. [Footnote 71] Page 395 U. S. 40 A number of officials responsible for enforcing the narcotics laws in various localities estimated that a similar proportion of the marihuana consumed in their areas was of Mexican origin. [Footnote 72]"On the other hand, written material inserted in the record of the Senate hearings included former testimony of an experienced federal customs agent before another Senate committee to the effect that high-quality marihuana was being grown near the Texas cities of Laredo and Brownsville. [Footnote 73] A written report of the Ohio Attorney General recited that marihuana "may grow unnoticed along roadsides and vacant lots in many parts of the country," [Footnote 74] and a Philadelphia Police Academy bulletin stated that: "Plenty of [marihuana] is found growing in this city." [Footnote 75]Examination of periodicals and books published since the enactment of the presumption leaves no doubt that, in more than a dozen intervening years, there have been great changes in the extent and nature of marihuana use in this country. With respect to quantity, one readily available statistic is indicative: the amount of marihuana seized in this country by federal authorities has jumped from about 3,400 pounds in 1956 to about 61,400 pounds in 1967. [Footnote 76] With regard to nature of use, the 1955 hearing records and other reports portray marihuana smoking as at that time an activity almost exclusively Page 395 U. S. 41 of unemployed or menially employed members of racial minorities. [Footnote 77] Current periodicals and books, on the other hand, indicate that marihuana smoking has become common on many college campuses and among persons who have voluntarily "dropped out" of American society in protest against its values, and that marihuana smokers include a sizeable number of young professional persons. [Footnote 78]Despite these undoubted changes, the materials which we have examined point quite strongly to the conclusion that most domestically consumed marihuana is still of foreign origin. During the six years 1962-1967, some 79% of all marihuana seized by federal authorities was seized in attempted smuggling at ports and borders. [Footnote 79] The Government informs us that a considerable part of the internally seized marihuana bore indications of foreign origin. [Footnote 80] While it is possible that these facts reflect only the deployment of federal narcotics forces, rather than the actual proportion of imported to domestic marihuana, almost all of the authorities which we have consulted Page 395 U. S. 42 confirm that the preponderance of domestically consumed marihuana is grown in Mexico. [Footnote 81]Petitioner makes much of statistics showing the number of acres of domestic marihuana destroyed annually by state and federal authorities, pointing out that, if harvested, the destroyed acreage could in each year have accounted for all marihuana estimated to have been consumed in the United States, [Footnote 82] and that no one knows how many acres escape destruction. However, several factors weaken this argument from domestic growth. First, the number of acres annually destroyed declined by a factor of three between 1959 and 1967, [Footnote 83] while, during the same period, the consumption of marihuana, as measured by federal seizures, rose twenty-fold. [Footnote 84] Page 395 U. S. 43 Assuming constant diligence on the part of those charged with destruction, this would indicate that, in 1967, a much smaller share of the market was domestically supplied than in 1959. Second, while the total number of acres annually destroyed has indeed been large enough to furnish all domestically consumed marihuana, [Footnote 85] the state-by-state breakdowns which are available for the years 1964-1967 reveal that, in each of those years, more than 95% of the destroyed acreage was in two midwestern states, Illinois and Minnesota. [Footnote 86] The large, recurrent marihuana acreages discovered in those States can plausibly be ascribed to the "volunteer growth from old plantings in the Middle West" about which Commissioner Anslinger testified, [Footnote 87] while illicit cultivators of marihuana would be likely to choose States with sparser populations and more favorable climates. [Footnote 88] Third and last, reports of the Bureau of Narcotics and testimony of its agents indicate that, in its far-reaching investigations, the Bureau has never encountered a system for distributing sizeable quantities of domestically grown marihuana. [Footnote 89] In contrast, the Bureau has found evidence of many large-scale distribution systems with sources in Mexico. [Footnote 90] Page 395 U. S. 44EThe Government urges that, once it is concluded that most domestically consumed marihuana comes from abroad -- a conclusion which we think is warranted by the data just examined -- we must uphold the "knowledge" part of the presumption in light of this Court's decision in Yee Hem v. United States, 268 U. S. 178 (1925). In that case, the Court sustained a presumption which was virtually identical to the one at issue here except that the forbidden substance was smoking opium, rather than marihuana. With respect to the inference of knowledge from possession which was authorized by that presumption, the Court said:"Legitimate possession [of opium], unless for medicinal use, is so highly improbable that to say to any person who obtains the outlawed commodity,""since you are bound to know that it cannot be brought into this country at all, except under regulation for medicinal use, you must at your peril ascertain and be prepared to show the facts and circumstances which rebut, or tend to rebut, the natural inference of unlawful importation, or your knowledge of it,""is not such an unreasonable requirement as to cause it to fall outside the constitutional power of Congress."268 U.S. at 268 U. S. 184.The Government contends that Yee Hem requires us to read the § 176a presumption as intended to put every marihuana smoker on notice that he must be prepared to show that any marihuana in his possession was Page 395 U. S. 45 not illegally imported, and that, since the possessor is the person most likely to know the marihuana's origin, it is not unfair to require him to adduce evidence on that point. However, we consider that this approach, which closely resembles the test of comparative convenience in the production of evidence, [Footnote 91] was implicitly abandoned in Tot v. United States, 319 U. S. 463 (1943). As was noted previously, the Tot Court confronted a presumption which allowed a jury to infer from possession of a firearm that it was received in interstate commerce. Despite evidence that most States prohibited unregistered and unrecorded acquisition of firearms, the Court did not read the statute as notifying possessors that they must be prepared to show that they received their weapons in intrastate transactions, as Yee Hem would seem to dictate. Instead, while recognizing that "the defendants . . . knew better than anyone else whether they acquired the firearms or ammunition in interstate commerce," 319 U.S. at 319 U. S. 469, the Court held that, because of the danger of overreaching it was incumbent upon the prosecution to demonstrate that the inference was permissible before the burden of coming forward could be placed upon the defendant. This was a matter which the Yee Hem Court either thought it unnecessary to consider or assumed when it described the inference as "natural." [Footnote 92]FWe therefore must consider in detail whether the available evidence supports the conclusion that the "knowledge" Page 395 U. S. 46 part of the § 176a presumption is constitutional under the standard established in Tot and adhered to in Gainey and Romano -- that is, whether it can be said with substantial assurance that one in possession of marihuana is more likely than not to know that his marihuana was illegally imported.Even if we assume that the previously assembled data are sufficient to justify the inference of illegal importation, see supra at 395 U. S. 44, it by no means follows that a majority of marihuana possessors "know" [Footnote 93] that their marihuana was illegally imported. Any such proposition would depend upon an intermediate premise: that most marihuana possessors are aware of the level of importation and have deduced that their own marihuana was grown abroad. This intermediate step might be thought justified by common sense if it were proved that little or no marihuana is grown in this country. Short of such a showing, not here present, we do not believe that the inference of knowledge can be sustained solely because of the assumed validity of the "importation" presumption.Once it is established that a significant percentage of domestically consumed marihuana may not have been imported at all, then it can no longer be postulated, without proof, that possessors will be even roughly aware of the proportion actually imported. We conclude that, in order to sustain the inference of knowledge, we must Page 395 U. S. 47 find on the basis of the available materials that a majority of marihuana possessors either are cognizant of the apparently high rate of importation or otherwise have become aware that their marihuana was grown abroad.We can imagine five ways in which a possessor might acquire such knowledge: (1) he might be aware of the proportion of domestically consumed marihuana which is smuggled from abroad and deduce that his was illegally imported; (2) he might have smuggled the marihuana himself; (3) he might have learned by indirect means that the marihuana consumed in his locality or furnished by his supplier was smuggled from abroad; (4) he might have specified foreign marihuana when making his "buy," or might have been told the source of the marihuana by his supplier; (5) he might be able to tell the source from the appearance, packaging, or taste of the marihuana itself.We treat these five possibilities seriatim, in light of the available materials, beginning in each instance with the legislative record. We note at the outset that, although we have been able to discover a good deal of relevant secondary evidence, we have found none of the best kind possible -- testimony of marihuana users about their own beliefs as to origin, or studies based upon interviews in which users were asked about this matter. The committee hearings which preceded passage of § 176a included testimony by many marihuana smokers, but none was ever asked whether he knew the origin of the marihuana he smoked. It should also be kept in mind that the great preponderance of marihuana smokers are "occasional", rather than "regular" users of the drug, [Footnote 94] Page 395 U. S. 48 and that "occasional" smokers appear to be arrested disproportionately often, due to their inexpertness in taking precautions. [Footnote 95] "Occasional" users are likely to be less informed and less particular about the drug they smoke; [Footnote 96] hence, it is less probable that they will have learned its source in any of the above ways.The first possibility is that a possessor may have known the proportion of imported to domestic marihuana and have deduced that his own marihuana was grown abroad. The legislative record is of no assistance in evaluating this possibility. Such indirect evidence as we have found points to the conclusion that, while most marihuana users probably know that some marihuana comes from Mexico, it is also likely that the great majority either have no knowledge about the proportion which is imported or believe that the proportion is considerably lower than may actually be the case. [Footnote 97]The second possibility is that a possessor may know the origin of his marihuana because he smuggled it into the United States himself. The legislative record is unhelpful in estimating the proportion of possessors who fall into this class. Other sources indicate that there are a considerable number of smokers who "smuggle their own," but that the great majority of possessors have obtained their marihuana from suppliers in this country. [Footnote 98] Page 395 U. S. 49The legislative record is also uninformative about the possibility that a possessor may have learned the source of his marihuana by indirect means. Other sources reveal that imported marihuana usually passes through a number of hands before reaching the consumer, and that the distribution system is kept secret. [Footnote 99] It would appear that relatively few consumers know the origin of their marihuana by indirect means.The fourth possibility is that the possessor may have specified foreign marihuana when making his purchase, or may have been told by his supplier that the marihuana was grown abroad. The legislative record is somewhat more helpful with respect to this possibility, for it does contain statements to the effect that Mexican marihuana is more potent than domestic, and is consequently preferred by smokers. [Footnote 100] However, the legislative record also contains testimony by a customs agent that Texas marihuana is as "good" as that from Mexico. [Footnote 101] Most authorities state that Mexican marihuana generally does have greater intoxicating power than domestic marihuana, due to the higher temperatures and lower humidity usually encountered in Mexico. [Footnote 102] There are some indications that smokers are likely to prefer Mexican marihuana, [Footnote 103] but there is nothing to show that purchasers Page 395 U. S. 50 commonly specify Mexican marihuana when making a "buy." It appears that suppliers of marihuana occasionally volunteer the place of origin, [Footnote 104] but we have found no hint that this is usually done, and there are indications that, if the information is not volunteered, the buyer may be reluctant to ask, for fear of being thought an informer. [Footnote 105] We simply are unable to estimate with any accuracy, on the basis of these data, what proportion of marihuana possessors have learned the origin of their marihuana in this way. It is certainly not a majority; but whether it is a small minority or a large one we are unable to tell.The fifth possibility is that a smoker may be able to tell the source of his marihuana from its appearance, packaging, or taste. As for appearance, it seems that there is only one species of marihuana, and that even experts are unable to tell by eye where a particular sample was grown. [Footnote 106] The Court of Appeals for the Ninth Circuit did find in Caudillo v. United States, 253 F.2d 513 (1958), on the basis of trial testimony, that "unmanicured" or "rough" marihuana -- that is, marihuana containing some seeds and stems, as well as leaves -- was much more likely to come from Mexico than from California; this was because the presence of seeds implied that the plant had been allowed to mature, and evidence showed that California growers almost always harvested the plant before that stage. However, we have found nothing to indicate that this distinction holds good in other areas of the country, or that marihuana possessors are likely to realize its significance. Page 395 U. S. 51With respect to packaging, there is evidence that Mexican marihuana is commonly compressed into distinctive "bricks" and then wrapped in characteristically Mexican paper. [Footnote 107] Yet even if it is assumed that most Mexican marihuana bears such distinguishing marks when first brought into this country, there is no indication that they normally are still present when it reaches the consumer. The packaging method just mentioned apparently is intended to facilitate transportation of relatively large quantities of marihuana. A "brick" appears usually to contain about one kilogram of marihuana, [Footnote 108] and relatively few consumer sales will involve such a large amount, since a kilogram of marihuana will furnish some 3,300 marihuana cigarettes. [Footnote 109] Smokers appear usually to purchase marihuana by the "bag" -- about one-fifth ounce; by the "can" -- about one ounce; or by the pound. [Footnote 110] Hence, after importation, "[t]he wholesalers will repackage the marihuana into smaller packages, . . . and they will do it in various ways." [Footnote 111] We infer that only a small percentage of smokers are likely to learn of the drug's origin from its packaging.With respect to taste, the Senate hearing record contains the statement of a federal customs agent that: "A good marihuana smoker can probably tell good marihuana Page 395 U. S. 52 from bad." [Footnote 112] As has been seen, there is a preponderance of opinion to the effect that Mexican marihuana is more potent than domestic. [Footnote 113] One authority states that purchasers of marihuana commonly sample the product before making a "buy." [Footnote 114] However, the agent quoted above also asserted that some "good" marihuana was grown in Texas. And the account of the sampling custom further states that tasting is merely a ritual, since "[u]sually the intoxication will not differ much from one cigarette to another. . . ." [Footnote 115] Once again, we simply are unable to estimate what proportion of marihuana possessors are capable of "placing" the marihuana in their possession by its taste, much less what proportion actually have done so by the time they are arrested.GWe conclude that the "knowledge" aspect of the § 176a presumption cannot be upheld without making serious incursions into the teachings of Tot, Gainey, and Romano. In the context of this part of the statute, those teachings require that it be determined with substantial assurance that at least a majority of marihuana possessors have learned of the foreign origin of their marihuana through one or more of the ways discussed above.We find it impossible to make such a determination. As we have seen, the materials at our disposal leave us at large to estimate even roughly the proportion of marihuana possessors who have learned in one way or another the origin of their marihuana. It must also be recognized that a not inconsiderable proportion of domestically consumed marihuana appears to have been grown Page 395 U. S. 53 in this country, and that its possessors must be taken to have "known," if anything, that their marihuana was not illegally imported. In short, it would be no more than speculation were we to say that even as much as a majority of possessors "knew" the source of their marihuana. [Footnote 116]Nor are these deficiencies in the foundation for the "knowledge" presumption overcome by paying, as we do, the utmost deference to the congressional determination that this presumption was warranted. For Congress, no less than we, is subject to constitutional requirements, and, in this instance, the legislative record falls even shorter of furnishing an adequate foundation for the "knowledge" presumption than do the more extensive materials we have examined.We thus cannot escape the duty of setting aside petitioner's conviction under Count 2 of this indictment.For the reasons stated in Part I of this opinion, we reverse outright the judgment of conviction on Count 3 of the indictment. For the reasons stated in Part II, we reverse the judgment of conviction on Count 2 and Page 395 U. S. 54 remand the case to the Court of Appeals for further proceedings consistent with this opinion. We are constrained to add that nothing in what we hold today implies any constitutional disability in Congress to deal with the marihuana traffic by other means.Reversed

U.S. Supreme CourtLeary v. United States, 395 U.S. 6 (1969)Leary v. United StatesNo. 65Argued December 11-12, 1968Decided May 19, 1969395 U.S. 6SyllabusPetitioner, accompanied by his daughter, son, and two others, on an automobile trip from New York to Mexico, after apparent denial of entry into Mexico, drove back across the International Bridge into Texas, where a customs officer, through a search, discovered some marihuana in the car and on petitioner's daughter's person. Petitioner was indicted under 26 U.S.C. § 4744(a)(2), a subsection of the Marihuana Tax Act, and under 21 U.S.C. § 176a. At petitioner's trial, which resulted in his conviction, petitioner admitted acquiring the marihuana in New York (but said he did not know where it had been grown) and driving with it to Laredo, Texas, thence to the Mexican customs station, and back to the United States. The Marihuana Tax Act levies an occupational tax upon all those who "deal in" the drug, and provides that the taxpayer must register his name and place of business with the Internal Revenue Service. The Act imposes a transfer tax "upon all transfers of marihuana" required to be effected with a written order form, and all except a limited number of clearly lawful transfers must be effected with such a form. The Act further imposes a transfer tax of $1 per ounce on a registered transferee and $100 per ounce on an unregistered transferee. The forms, executed by the transferee, must show the transferor's name and address and the amount of marihuana involved. A copy of the form is "preserved" by the Internal Revenue Service, and the information contained in the form is made available to law enforcement officials. Possession of marihuana is a crime in Texas, where petitioner was arrested, in New York, where petitioner asserted the transfer occurred, and in all the other States. Section 4744(a)(2) prohibits transportation or concealment of marihuana by one who acquired it without having paid the transfer tax, which petitioner conceded that he had not done. Petitioner claimed in his motion for a new trial that his conviction under the Marihuana Tax Act violated his privilege against self-incrimination, and he argues that this Court's subsequent decisions in Marchetti v. United States, 390 U. S. 39, Grosso v. United States, 390 U. S. 62, and Haynes v. United Page 395 U. S. 7 States, 390 U. S. 85, require reversal. The Government contends that the Act's transfer tax provisions do not compel incriminatory disclosures because, as administratively construed and applied, they permit prepayment of the tax only by persons whose activities are otherwise lawful. Title 21 U.S.C. § 176a makes it a crime to transport or facilitate the transportation of illegally imported marihuana, with knowledge of its illegal importation, and provides that a defendant's possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. The trial court instructed the jury that it might find petitioner guilty of violating § 176a (1) solely on petitioner's testimony that the marihuana had been brought back from Mexico into the United States and that, with knowledge of that fact, petitioner had continued to transport it, or (2) partly upon his testimony that he had transported the marihuana from New York to Texas and partly upon the § 176a presumption. Petitioner contends that application of that presumption denied him due process of law.Held:1. Petitioner's invocation of the privilege against self-incrimination under the Fifth Amendment provided a full defense to the charge under 26 U.S.C. § 4744(a)(2). Pp. 395 U. S. 12-29.(a) Since the effect of the Act's terms were such that legal possessors of marihuana were virtually certain to be registrants or exempt from the order form requirement, compliance with the transfer tax provisions would have required petitioner, as one not registered but obliged to obtain an order form, unmistakably to identify himself as a member of a "selective group inherently suspect of criminal activities," and thus those provisions created a "real and appreciable" hazard of incrimination within the meaning of Marchetti, Grosso, and Haynes. Pp. 395 U. S. 16-18.(b) It is clear from both the language of the Act and its legislative history that, contrary to the interpretation which the Government would give to the transfer provisions, Congress intended that a nonregistrant should be able to obtain an order form and prepay the transfer tax. Pp. 395 U. S. 18-26.(c) Since the Act was clearly aimed at bringing to light violations of the marihuana laws, this Court will not impose restrictions upon the use of information revealed by the transfer provisions in order to avoid the constitutional issue. Pp. 395 U. S. 26-27. Page 395 U. S. 8(d) Petitioner's claim of the privilege was timely and, under the circumstances of this case, his failure to assert the privilege at the trial (which antedated this Court's decision in Marchetti, Grosso, and Haynes) did not constitute a waiver. Pp. 395 U. S. 27-28.(e) By taking the stand, petitioner waived his right to remain silent at trial but not, as the Court of Appeals erroneously held, his right to plead that the Act violated the privilege against self-incrimination; nor was the latter right waived by his testifying that his noncompliance with the Act had a religious motivation, since other parts of his testimony indicated that he was also influenced by an apprehension that, by trying to pay the tax, he might incriminate himself. Pp. 395 U. S. 27-29.2. In the circumstances of this case, the application of that part of the presumption in 21 U.S.C. § 176a which provides that a possessor of marihuana is deemed to know of its unlawful importation denied petitioner due process of law in violation of the Fifth Amendment. Pp. 395 U. S. 29-53.(a) The jury, under the trial court's instructions, might have convicted petitioner with the aid of the § 176a presumption, and petitioner is not foreclosed from challenging the constitutionality of that presumption because the jury might have based its verdict on the alternative theory in those instructions which did not rest upon that presumption. When a case is submitted to the jury on alternative theories, the unconstitutionality of any of the theories requires that the conviction be set aside. See Stromberg v. California, 283 U. S. 359. Pp. 395 U. S. 30-32.(b) A criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. Tot v. United States, 319 U. S. 463. Pp. 395 U. S. 32-36.(c) Even if it assumed that the great preponderance of marihuana used in the United States is smuggled from Mexico, and that the inference of illegal importation is therefore justified, it does not, under the Tot test, follow (since a significant amount may not have been imported at all) that a majority of marihuana possessors "know" that their marihuana was illegally imported, and the inference of knowledge is therefore impermissible unless it appears on the basis of available materials that most such possessors are aware either of the high rate of importation or that their marihuana was grown abroad. Pp. 395 U. S. 39-47. Page 395 U. S. 9(d) A possessor of marihuana might "know" that his marihuana came from abroad in any one o five ways: (1) he might be aware of the proportion of domestically consumed marihuana smuggled from abroad and deduce that his was illegally imported; (2) he might have smuggled it himself; (3) he might have learned indirectly that the marihuana supplied in his locality came from abroad; (4) he might have specified foreign marihuana when making his purchase; (5) he might be able to tell the source of the marihuana from its appearance, packaging, or taste. Neither the legislative record nor other sources establish with substantial assurance that even a majority of marihuana possessors have learned the source of their marihuana in one or more of these ways. Pp. 395 U. S. 47-52.383 F.2d 851, 392 F.2d 220, reversed in part and reversed and remanded in part.

1994_93-986

torneys General, Richard A. Cordray, State Solicitor, and Simon B. Karas. *JUSTICE STEVENS delivered the opinion of the Court.The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign literature is a "law ... abridging the freedom of speech" within the meaning of the First Amendment.1*Briefs of amici curiae urging affirmance were filed for the State of Tennessee et al. by Charles W Burson, Attorney General of Tennessee, Michael E. Moore, Solicitor General, and Michael W Catalano, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Winston Bryant of Arkansas, Gale A. Norton of Colorado, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Roland W Burris of Illinois, Pamela Fanning Carter of Indiana, Chris Gorman of Kentucky, Richard P. I eyoub of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, and Jeffrey L. Amestoy of Vermont; and for the Council of State Governments et al. by Richard Ruda and Lee Fennell.Charles H. Bell, Jr., and Robert E. Leidigh filed a brief for the California Political Attorneys Association as amicus curiae.1 The term "liberty" in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States. The Fourteenth Amendment reads, in relevant part: "No State shall ... deprive any person of life, liberty, or property, without due process of law .... " u. S. Const., Arndt. 14, § 1. Referring to that Clause in his separate opinion in Whitney v. California, 274 U. S. 357 (1927), Justice Brandeis stated that "all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights." Id., at 373 (concurring opinion). Although the text of the First Amendment provides only that "Congress shall make no law ... abridging the freedom of speech ... ," Justice Brandeis' view has been embedded in our law ever since. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 779-780 (1978); see also Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20, 25-26 (1992).337IOn April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre's opposition to the levy.2 There is no suggestion that the text of her message was false, misleading, or libelous. She had composed and printed it on her home computer and had paid a professional printer to make additional copies. Some of the handbills identified her as the author; others merely purported to express the views of "CONCERNED PARENTS AND TAX PAYERS." Except for the help provided by her son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs. McIntyre acted independently.2 The following is one of Mrs. McIntyre's leaflets, in its original typeface:THANt; YOU.CONCElTAX Po:IYERS338While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills.The proposed school levy was defeated at the next two elections, but it finally passed on its third try in November 1988. Five months later, the same school official filed a complaint with the Ohio Elections Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated § 3599.09(A) of the Ohio Code.3 The commission agreed and imposed a fine of $100.3 Ohio Rev. Code Ann. § 3599.09(A) (1988) provides:"No person shall write, print, post, or distribute, or cause to be written, printed, posted, or distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of general publication which is designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election, or make an expenditure for the purpose of financing political communications through newspapers, magazines, outdoor advertising facilities, direct mailings, or other similar types of general public political advertising, or through flyers, handbills, or other nonperiodical printed matter, unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor. The disclaimer 'paid political advertisement' is not sufficient to meet the requirements of this division. When such publication is issued by the regularly constituted central or executive committee of a political party, organized as provided in Chapter 3517. of the Revised Code, it shall be sufficiently identified if it bears the name of the committee and its chairman or treasurer. No person, firm, or corporation shall print or reproduce any notice, placard, dodger, advertisement, sample ballot, or any other form of publication in violation of this section. This section does not apply to the transmittal of personal correspondence that is not reproduced by machine for general distribution."The secretary of state may, by rule, exempt, from the requirements of this division, printed matter and certain other kinds of printed communications such as campaign buttons, balloons, pencils, or like items, the size339The Franklin County Court of Common Pleas reversed.Finding that Mrs. McIntyre did not "mislead the public nor act in a surreptitious manner," the court concluded that the statute was unconstitutional as applied to her conduct. App. to Pet. for Cert. A-34 to A-35. The Ohio Court of Appeals, by a divided vote, reinstated the fine. Notwithstanding doubts about the continuing validity of a 1922 decision of the Ohio Supreme Court upholding the statutory predecessor of § 3599.09(A), the majority considered itself bound by that precedent. Id., at A-20 to A-21, citing State v. Babst, 104 Ohio St. 167, 135 N. E. 525 (1922). The dissenting judge thought that our intervening decision in Talley v. California, 362 U. S. 60 (1960), in which we invalidated a city ordinance prohibiting all anonymous leafletting, compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality. App. to Pet. for Cert. A-30 to A-31.The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre's case from Talley on the ground that § 3599.09(A) "has as its purpose the identification of persons who distribute materials containing false statements." 67 Ohio St. 3d 391, 394, 618 N. E. 2d 152, 154or nature of which makes it unreasonable to add an identification or disclaimer. The disclaimer or identification, when paid for by a campaign committee, shall be identified by the words 'paid for by' followed by the name and address of the campaign committee and the appropriate officer of the committee, identified by name and title."Section 3599.09(B) contains a comparable prohibition against unidentified communications uttered over the broadcasting facilities of any radio or television station. No question concerning that provision is raised in this case. Our opinion, therefore, discusses only written communications and, particularly, leaflets of the kind Mrs. McIntyre distributed. Cf. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994) (discussing application of First Amendment principles to regulation of television and radio).The complaint against Mrs. McIntyre also alleged violations of two other provisions of the Ohio Code, but those charges were dismissed and are not before this Court.340(1993). The Ohio court believed that such a law should be upheld if the burdens imposed on the First Amendment rights of voters are "'reasonable'" and "'nondiscriminatory.'" Id., at 396, 618 N. E. 2d, at 155, quoting Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). Under that standard, the majority concluded that the statute was plainly valid:"The minor requirement imposed by R.C. 3599.09 that those persons producing campaign literature identify themselves as the source thereof neither impacts the content of their message nor significantly burdens their ability to have it disseminated. This burden is more than counterbalanced by the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity. Moreover, the law serves to identify those who engage in fraud, libel or false advertising. Not only are such interests sufficient to overcome the minor burden placed upon such persons, these interests were specifically acknowledged in [First Nat. Bank of Boston v.] Bellotti[, 435 U. S. 765 (1978),] to be regulations of the sort which would survive constitutional scrutiny." 67 Ohio St. 3d, at 396, 618 N. E. 2d, at 155-156.In dissent, Justice Wright argued that the statute should be tested under a more severe standard because of its significant effect "on the ability of individual citizens to freely express their views in writing on political issues." Id., at 398, 618 N. E. 2d, at 156-157. He concluded that § 3599.09(A) "is not narrowly tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre." Id., at 401, 618 N. E. 2d, at 159.Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court. Our grant of certiorari, 510 U. S.3411108 (1994), reflects our agreement with his appraisal of the importance of the question presented.IIOhio maintains that the statute under review is a reasonable regulation of the electoral process. The State does not suggest that all anonymous publications are pernicious or that a statute totally excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the protections of the First Amendment."Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Talley v. California, 362 U. S., at 64. Great works of literature have frequently been produced by authors writing under assumed names.4 Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official re-4 American names such as Mark Twain (Samuel Langhorne Clemens) and O. Henry (William Sydney Porter) come readily to mind. Benjamin Franklin employed numerous different pseudonyms. See 2 W. Bruce, Benjamin Franklin Self-Revealed: A Biographical and Critical Study Based Mainly on His Own Writings, ch. 5 (2d ed. 1923). Distinguished French authors such as Voltaire (Francois Marie Arouet) and George Sand (Amandine Aurore Lucie Dupin), and British authors such as George Eliot (Mary Ann Evans), Charles Lamb (sometimes wrote as "Elia"), and Charles Dickens (sometimes wrote as "Boz"), also published under assumed names. Indeed, some believe the works of Shakespeare were actually written by the Earl of Oxford rather than by William Shaksper of Stratford-on-Avon. See C. Ogburn, The Mysterious William Shakespeare: The Myth & the Reality (2d ed. 1992); but see S. Schoenbaum, Shakespeare's Lives (2d ed. 1991) (adhering to the traditional view that Shaksper was in fact the author). See also Stevens, The Shakespeare Canon of Statutory Construction, 140 U. Pa. L. Rev. 1373 (1992) (commenting on the competing theories).342taliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. 5 Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.The freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U. S. 60. Writing for the Court, Justice Black noted that "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Id., at 64. Justice Black recalled England's abusive press licensing laws and seditious libel prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names. Id., at 64-65. On occasion, quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Thus, even in the field of5 Though such a requirement might provide assistance to critics in evaluating the quality and significance of the writing, it is not indispensable. To draw an analogy from a nonliterary context, the now-pervasive practice of grading law school examination papers "blindly" (i. e., under a system in which the professor does not know whose paper she is grading) indicates that such evaluations are possible-indeed, perhaps more reliable-when any bias associated with the author's identity is prescinded.343political rhetoric, where "the identity of the speaker is an important component of many attempts to persuade," City of Ladue v. Gilleo, 512 U. S. 43, 56 (1994) (footnote omitted), the most effective advocates have sometimes opted for anonymity. The specific holding in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected tradition of anonymity in the advocacy of political causes.6 This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation.IIICalifornia had defended the Los Angeles ordinance at issue in Talley as a law "aimed at providing a way to identify those responsible for fraud, false advertising and libel." 362 U. S., at 64. We rejected that argument because nothing in the text or legislative history of the ordinance limited its application to those evils.7 Ibid. We then made clear that6 That tradition is most famously embodied in the Federalist Papers, authored by James Madison, Alexander Hamilton, and John Jay, but signed "Publius." Publius' opponents, the Anti-Federalists, also tended to publish under pseudonyms: prominent among them were "Cato," believed to be New York Governor George Clinton; "Centinel," probably Samuel Bryan or his father, Pennsylvania judge and legislator George Bryan; "The Federal Farmer," who may have been Richard Henry Lee, a Virginia member of the Continental Congress and a signer of the Declaration of Independence; and "Brutus," who may have been Robert Yates, a New York Supreme Court justice who walked out on the Constitutional Convention. 2 H. Storing, ed., The Complete Anti-Federalist (1981). A forerunner of all of these writers was the pre-Revolutionary War English pamphleteer "Junius," whose true identity remains a mystery. See Encyclopedia of Colonial and Revolutionary America 220 (J. Faragher ed. 1990) (positing that "Junius" may have been Sir Phillip Francis). The "Letters of Junius" were "widely reprinted in colonial newspapers and lent considerable support to the revolutionary cause." Powell v. McCormack, 3957 In his concurring opinion, Justice Harlan added these words:"Here the State says that this ordinance is aimed at the prevention of 'fraud, deceit, false advertising, negligent use of words, obscenity, and libel,' in that it will aid in the detection of those responsible for spreading344we did "not pass on the validity of an ordinance limited to prevent these or any other supposed evils." Ibid. The Ohio statute likewise contains no language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify § 3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when there is no hint of falsity or libel.Ohio's statute does, however, contain a different limitation:It applies only to unsigned documents designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all anonymous handbilling "in any place under any circumstances." Id., at 60-61. For that reason, Ohio correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide whether and to what extent the First Amendment's protection of anonymity encompasses documents intended to influence the electoral process.Ohio places its principal reliance on cases such as Anderson v. Celebrezze, 460 U. S. 780 (1983); Storer v. Brown, 415 U. S. 724 (1974); and Burdick v. Takushi, 504 U. S. 428 (1992), in which we reviewed election code provisions governing the voting process itself. See Anderson, supra (filing deadlines); Storer, supra (ballot access); Burdick, supra (write-in voting); see also Tashjian v. Republican Party of Conn., 479 U. S. 208 (1986) (eligibility of independent voters to vote in party primaries). In those cases we refused to adopt "anymaterial of that character. But the ordinance is not so limited, and I think it will not do for the State simply to say that the circulation of all anonymous handbills must be suppressed in order to identify the distributors of those that may be of an obnoxious character. In the absence of a more substantial showing as to Los Angeles' actual experience with the distribution of obnoxious handbills, such a generality is for me too remote to furnish a constitutionally acceptable justification for the deterrent effect on free speech which this all-embracing ordinance is likely to have." 362 U. S., at 66-67 (footnote omitted).345'litmus-paper test' that will separate valid from invalid restrictions." Anderson, 460 U. S., at 789, quoting Storer, 415 U. S., at 730. Instead, we pursued an analytical process comparable to that used by courts "in ordinary litigation":We considered the relative interests of the State and the injured voters, and we evaluated the extent to which the State's interests necessitated the contested restrictions. Anderson, 460 U. S., at 789. Applying similar reasoning in this case, the Ohio Supreme Court upheld § 3599.09(A) as a "reasonable" and "nondiscriminatory" burden on the rights of voters. 67 Ohio St. 3d, at 396, 618 N. E. 2d, at 155, quoting Anderson, 460 U. S., at 788.The "ordinary litigation" test does not apply here. Unlike the statutory provisions challenged in Storer and Anderson, § 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of differing viewpoints,S it is a direct regulation of the content of speech. Every written document covered by the statute must contain "the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor." Ohio Rev. Code Ann. § 3599.09(A) (1988). Furthermore, the category of covered documents is defined by their content-only those publications containing speech designed to influence the voters in an election need bear the required markings.9 Ibid. Consequently, we are not faced with an ordinary election restric-8 Arguably, the disclosure requirement places a more significant burden on advocates of unpopular causes than on defenders of the status quo. For purposes of our analysis, however, we assume the statute evenhandedly burdens all speakers who have a legitimate interest in remaining anonymous.9 Covered documents are those "designed to promote the nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election .... " §3599.09(A).346tion; this case "involves a limitation on political expression subject to exacting scrutiny." Meyer v. Grant, 486 U. S. 414, 420 (1988).10Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio statute occupies the core of the protection afforded by the First Amendment:"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' Roth v. United States, 354 U. S. 476, 484 (1957). Although First Amendment protections are not confined to 'the exposition of ideas,' Winters v. New York, 333 U. S. 507, 510 (1948), 'there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs, ... of course includ[ing] discussions of candidates ... .' Mills v. Alabama, 384 U. S. 214, 218 (1966). This no more than reflects our 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,' New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citi-10 In Meyer, we unanimously applied strict scrutiny to invalidate an election-related law making it illegal to pay petition circulators for obtaining signatures to place an initiative on the state ballot. Similarly, in Burson v. Freeman, 504 U. S. 191 (1992), although the law at issueforbidding campaign-related speech within 100 feet of the entrance to a polling place-was an election-related restriction, both the plurality and dissent applied strict scrutiny because the law was "a facially contentbased restriction on political speech in a public forum." Id., at 198; see also id., at 212-213 (KENNEDY, J., concurring); id., at 217 (STEVENS, J., dissenting).347zenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), 'it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam).Of course, core political speech need not center on a candidate for office. The principles enunciated in Buckley extend equally to issue-based elections such as the school tax referendum that Mrs. McIntyre sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 776-777 (1978) (speech on income tax referendum "is at the heart of the First Amendment's protection"). Indeed, the speech in which Mrs. McIntyre engaged-handing out leaflets in the advocacy of a politically controversial viewpoint-is the essence of First Amendment expression. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672 (1992); Lovell v. City of Griffin, 303 U. S. 444 (1938). That this advocacy occurred in the heat of a controversial referendum vote only strengthens the protection afforded to Mrs. McIntyre's expression:Urgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949). No form of speech is entitled to greater constitutional protection than Mrs. McIntyre~.When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., Bellotti, 435 U. S., at 786. Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than is appropriate in a case of this kind.348IVNevertheless, the State argues that, even under the strictest standard of review, the disclosure requirement in § 3599.09(A) is justified by two important and legitimate state interests. Ohio judges its interest in preventing fraudulent and libelous statements and its interest in providing the electorate with relevant information to be sufficiently compelling to justify the anonymous speech ban. These two interests necessarily overlap to some extent, but it is useful to discuss them separately.Insofar as the interest in informing the electorate means nothing more than the provision of additional information that may either buttress or undermine the argument in a document, we think the identity of the speaker is no different from other components of the document's content that the author is free to include or excludeY We have already held that the State may not compel a newspaper that prints editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen who is not known to the recipient, the name and address of the author add little, if anything, to the reader's ability to evaluate the11 "Of course, the identity of the source is helpful in evaluating ideas.But 'the best test of truth is the power of the thought to get itself accepted in the competition of the market' (Abrams v. United States, [250 U. S. 616, 630 (1919) (Holmes, J., dissenting)]). Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is 'responsible', what is valuable, and what is truth." New York v. Duryea, 76 Misc. 2d 948, 966-967,351 N. Y. S. 2d 978, 996 (1974) (striking down similar New York statute as overbroad).349document's message. Thus, Ohio's informational interest is plainly insufficient to support the constitutionality of its disclosure requirement.The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio's submission that this interest carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely solely on § 3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann. §§ 3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to issue-driven ballot measures.12 Thus,12 Section 3599.09.1(B) provides:"No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:"(1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office or use the term 're-elect' when the candidate has never been elected at a primary, general, or special election to the office for which he is a candidate;"(2) Make a false statement concerning the formal schooling or training completed or attempted by a candidate; a degree, diploma, certificate, scholarship, grant, award, prize, or honor received, earned, or held by a candidate; or the period of time during which a candidate attended any school, college, community technical school, or institution;"(3) Make a false statement concerning the professional, occupational, or vocational licenses held by a candidate, or concerning any position the candidate held for which he received a salary or wages;"(4) Make a false statement that a candidate or public official has been indicted or convicted of a theft offense, extortion, or other crime involving financial corruption or moral turpitude;"(5) Make a statement that a candidate has been indicted for any crime or has been the subject of a finding by the Ohio elections commission without disclosing the outcome of any legal proceedings resulting from the indictment or finding;350Ohio's prohibition of anonymous leaflets plainly is not its principal weapon against fraud.13 Rather, it serves as an aid to enforcement of the specific prohibitions and as a deterrent"(6) Make a false statement that a candidate or official has a record of treatment or confinement for mental disorder;"(7) Make a false statement that a candidate or official has been subjected to military discipline for criminal misconduct or dishonorably discharged from the armed services;"(8) Falsely identify the source of a statement, issue statements under the name of another person without authorization, or falsely state the endorsement of or opposition to a candidate by a person or publication;"(9) Make a false statement concerning the voting record of a candidate or public official;"(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement, either knowing the same to be false or with reckless disregard of whether it was false or not, concerning a candidate that is designed to promote the election, nomination, or defeat of the candidate. As used in this section, 'voting record' means the recorded 'yes' or 'no' vote on a bill, ordinance, resolution, motion, amendment, or confirmation."Section 3599.09.2(B) provides:"No person, during the course of any campaign in advocacy of or in opposition to the adoption of any ballot proposition or issue, by means of campaign material, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, a press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:"(1) Falsely identify the source of a statement, issue statements under the name of another person without authorization, or falsely state the endorsement of or opposition to a ballot proposition or issue by a person or publication;"(2) Post, publish, circulate, distribute, or otherwise disseminate, a false statement, either knowing the same to be false or acting with reckless disregard of whether it was false or not, that is designed to promote the adoption or defeat of any ballot proposition or issue." §3599.09.2(B).We need not, of course, evaluate the constitutionality of these provisions. We quote them merely to emphasize that Ohio has addressed directly the problem of election fraud. To the extent the anonymity ban indirectly seeks to vindicate the same goals, it is merely a supplement to the above provisions.13 The same can be said with regard to "libel," as many of the above-quoted Election Code provisions prohibit false statements about candidates. To the extent those provisions may be underinclusive, Ohio courts also351to the making of false statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we are not persuaded that they justify § 3599.09(A)'s extremely broad prohibition.As this case demonstrates, the prohibition encompasses documents that are not even arguably false or misleading. It applies not only to the activities of candidates and their organized supporters, but also to individuals acting independently and using only their own modest resources.14 It applies not only to elections of public officers, but also toenforce the common-law tort of defamation. See, e. g., Varanese v. Gall, 35 Ohio St. 3d 78, 518 N. E. 2d 1177 (1988) (applying the standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), to an Ohio public official's state-law libel claim arising from an election-related advertisement). Like other forms of election fraud, then, Ohio directly attacks the problem of election-related libel; to the extent that the anonymity ban serves the same interest, it is merely a supplement.14 We stressed the importance of this distinction in Buckley v. Valeo, 424 U. S. 1, 37 (1976):"Treating these expenses [the expenses incurred by campaign volunteers] as contributions when made to the candidate's campaign or at the direction of the candidate or his staff forecloses an avenue of abuse without limiting actions voluntarily undertaken by citizens independently of a candidate's campaign." (Footnote omitted.)Again, in striking down the independent expenditure limitations of the Federal Election Campaign Act of 1971, 18 U. S. C. § 608(e)(I) (1970 ed., Supp. IV) (repealed 1976), we distinguished another section of the statute (§ 608(b), which we upheld) that placed a ceiling on contributions to a political campaign."By contrast, § 608(e)(I) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, § 608(e)(I) severely restricts all independent advocacy despite its substantially diminished potential for abuse." 424 U. S., at 47.352ballot issues that present neither a substantial risk of libel nor any potential appearance of corrupt advantage.15 It applies not only to leaflets distributed on the eve of an election, when the opportunity for reply is limited, but also to those distributed months in advance.16 It applies no matter what the character or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the author's name on a document does not necessarily protect either that person or a distributor of a forbidden document from being held responsible for compliance with the Election Code. Nor has the State explained why it can15 "The risk of corruption perceived in cases involving candidate elections, e. g., United States v. Automobile Workers, [352 U. S. 567 (1957)]; United States v. eIO, [335 U. S. 106 (1948)], simply is not present in a popular vote on a public issue." First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 790 (1978) (footnote omitted).16 As the Illinois Supreme Court explained in People v. White, 116 Ill. 2d 171, 180,506 N. E. 2d 1284, 1288 (Ill. 1987), which struck down a similar statute:"Implicit in the State's ... justification is the concern that the public could be misinformed and an election swayed on the strength of an eleventhhour anonymous smear campaign to which the candidate could not meaningfully respond. The statute cannot be upheld on this ground, however, because it sweeps within its net a great deal of anonymous speech completely unrelated to this concern. In the first place, the statute has no time limit and applies to literature circulated two months prior to an election as well as that distributed two days before. The statute also prohibits anonymous literature supporting or opposing not only candidates, but also referenda. A public question clearly cannot be the victim of character assassination."The temporal breadth of the Ohio statute also distinguishes it from the Tennessee law that we upheld in Burson v. Freeman, 504 U. S. 191 (1992). The Tennessee statute forbade electioneering within 100 feet of the entrance to a polling place. It applied only on election day. The State's interest in preventing voter intimidation and election fraud was therefore enhanced by the need to prevent last-minute misinformation to which there is no time to respond. Moreover, Tennessee geographically confined the reach of its law to a 100-foot no-solicitation zone. By contrast, the Ohio law forbids anonymous campaign speech wherever it occurs.353more easily enforce the direct bans on disseminating false documents against anonymous authors and distributors than against wrongdoers who might use false names and addresses in an attempt to avoid detection. We recognize that a State's enforcement interest might justify a more limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.VFinally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), and Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), amply support the constitutionality of its disclosure requirement. N either case is controlling: The former concerned the scope of First Amendment protection afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature.In Bellotti, we reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law that prohibited corporate expenditures designed to influence the vote on referendum proposals. 435 U. S. 765. The Massachusetts court had held that the First Amendment protects corporate speech only if its message pertains directly to the business interests of the corporation. Id., at 771-772. Consistently with our holding today, we noted that the "inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual." Id., at 777. We also made it perfectly clear that we were not deciding whether the First Amendment's protection of corporate speech is coextensive with the protection it affords to individualsP Accordingly, although we commented in dicta17"In deciding whether this novel and restrictive gloss on the First Amendment comports with the Constitution and the precedents of this Court, we need not survey the outer boundaries of the Amendment's pro-354on the prophylactic effect of requiring identification of the source of corporate advertising,18 that footnote did not necessarily apply to independent communications by an individual like Mrs. McIntyre.Our reference in the Bellotti footnote to the "prophylactic effect" of disclosure requirements cited a portion of our earlier opinion in Buckley, in which we stressed the importance of providing "the electorate with information 'as to where political campaign money comes from and how it is spent by the candidate.'" 424 U. S., at 66. We observed that the "sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office." Id., at 67. Those comments concerned contributions to the candidate or expenditures authorized by the candidate or his responsible agent. They had no reference to the kind of independent activity pursued by Mrs. McIntyre. Required disclosures about the level of financial support a candidate has received from various sources are supported by an interest in avoiding the appearance of corruption that has no application to this case.tectian of corporate speech, or address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment." Bellotti, 435 U. S., at 777-778.In a footnote to that passage, we continued:"Nor is there any occasion to consider in this case whether, under different circumstances, a justification for a restriction on speech that would be inadequate as applied to individuals might suffice to sustain the same restriction as applied to corporations, unions, or like entities." Id., at 777-778, n. 13.18 "Corporate advertising, unlike some methods of participation in political campaigns, is likely to be highly visible. Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected. See Buckley, 424 U. S., at 66-67; United States v. Harriss, 347 U. S. 612, 625-626 (1954). In addition, we emphasized in Buckley the prophylactic effect of requiring that the source of communication be disclosed. 424 U. S., at 67." Id., at 792, n. 32.355True, in another portion of the Buckley opinion we expressed approval of a requirement that even "independent expenditures" in excess of a threshold level be reported to the Federal Election Commission. Id., at 75-76. But that requirement entailed nothing more than an identification to the Commission of the amount and use of money expended in support of a candidate. See id., at 157-159,160 (reproducing relevant portions of the statute 19). Though such mandatory reporting undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled selfidentification on all election-related writings. A written election-related document-particularly a leaflet-is often a personally crafted statement of a political viewpoint. Mrs. McIntyre's handbills surely fit that description. As such, identification of the author against her will is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure and its use, without more, reveals far less information. It may be information that a person prefers to keep secret, and undoubtedly it often gives away something about the spender's political views. Nonetheless, even though money may "talk," its speech is less specific, less personal, and less provocative than a handbill-and as a result, when money supports an unpopular viewpoint it is less likely to precipitate retaliation.19 One of those provisions, addressing contributions by campaign committees, required:"the identification of each person to whom expenditures have been made by such committee or on behalf of such committee or candidate within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made." 2 U. S. C. § 434(b)(9) (1970 ed., Supp. IV) (reprinted in Buckley, 424 U. S., at 158).A separate provision, 2 U. S. C. § 434(e) (1970 ed., Supp. IV) (reprinted in Buckley, 424 U. S., at 160), required individuals making contributions or expenditures to file statements containing the same information.356Not only is the Ohio statute's infringement on speech more intrusive than the Buckley disclosure requirement, but it rests on different and less powerful state interests. The Federal Election Campaign Act of 1971, at issue in Buckley, regulates only candidate elections, not referenda or other issue-based ballot measures; and we construed "independent expenditures" to mean only those expenditures that "expressly advocate the election or defeat of a clearly identified candidate." Id., at 80. In candidate elections, the Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures. Disclosure of expenditures lessens the risk that individuals will spend money to support a candidate as a quid pro quo for special treatment after the candidate is in office. Curriers of favor will be deterred by the knowledge that all expenditures will be scrutinized by the Federal Election Commission and by the public for just this sort of abuse.20 Moreover, the federal Act contains numerous legitimate disclosure requirements for campaign organizations; the similar requirements for independent expenditures serve to ensure that a campaign organization will not seek to evade disclosure by routing its expenditures through individual supporters. See Buckley, 424 U. S., at 76. In short, although Buckley may permit a more narrowly drawn statute, it surely is not authority for upholding Ohio's open-ended provision.2120 This interest also serves to distinguish United States v. Harriss, 347 U. S. 612 (1954), in which we upheld limited disclosure requirements for lobbyists. The activities of lobbyists who have direct access to elected representatives, if undisclosed, may well present the appearance of corruption.21 We note here also that the federal Act, while constitutional on its face, may not be constitutional in all its applications. Cf. Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U. S. 87,88 (1982) (holding Ohio disclosure requirements unconstitutional as applied to "a minor political357VIUnder our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse. See Abrams v. United States, 250 U. S. 616, 630-631 (1919) (Holmes, J., dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election-related speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented. One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the case before us.The judgment of the Ohio Supreme Court is reversed.It is so ordered

OCTOBER TERM, 1994SyllabusMcINTYRE, EXECUTOR OF ESTATE OF McINTYRE, DECEASED v. OHIO ELECTIONS COMMISSIONCERTIORARI TO THE SUPREME COURT OF OHIO No. 93-986. Argued October 12, 1994-Decided April 19, 1995After petitioner's decedent distributed leaflets purporting to express the views of "CONCERNED PARENTS AND TAX PAYERS" opposing a proposed school tax levy, she was fined by respondent for violating § 3599.09(A) of the Ohio Code, which prohibits the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature. The Court of Common Pleas reversed, but the Ohio Court of Appeals reinstated the fine. In affirming, the State Supreme Court held that the burdens § 3599.09(A) imposed on voters' First Amendment rights were "reasonable" and "nondiscriminatory" and therefore valid. Declaring that § 3599.09(A) is intended to identify persons who distribute campaign materials containing fraud, libel, or false advertising and to provide voters with a mechanism for evaluating such materials, the court distinguished Talley v. California, 362 U. S. 60, in which this Court invalidated an ordinance prohibiting all anonymous leafletting.Held: Section 3599.09(A)'s prohibition of the distribution of anonymous campaign literature abridges the freedom of speech in violation of the First Amendment. Pp.341-357.(a) The freedom to publish anonymously is protected by the First Amendment, and, as Talley indicates, extends beyond the literary realm to the advocacy of political causes. Pp.341-343.(b) This Court's precedents make abundantly clear that the Ohio Supreme Court's reasonableness standard is significantly more lenient than is appropriate in a case of this kind. Although Talley concerned a different limitation than § 3599.09(A) and thus does not necessarily control here, the First Amendment's protection of anonymity nevertheless applies. Section 3599.09(A) is not simply an election code provision subject to the "ordinary litigation" test set forth in Anderson v. Celebrezze, 460 U. S. 780, and similar cases. Rather, it is a regulation of core political speech. Moreover, the category of documents it covers is defined by their content-only those publications containing speech designed to influence the voters in an election need bear the required information. See, e. g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765,776-777. When a law burdens such speech, the Court applies "exacting scrutiny,"335upholding the restriction only if it is narrowly tailored to serve an overriding state interest. See, e. g., id., at 786. Pp.343-347.(c) Section 3599.09(A)'s anonymous speech ban is not justified by Ohio's asserted interests in preventing fraudulent and libelous statements and in providing the electorate with relevant information. The claimed informational interest is plainly insufficient to support the statute's disclosure requirement, since the speaker's identity is no different from other components of a document's contents that the author is free to include or exclude, and the author's name and address add little to the reader's ability to evaluate the document in the case of a handbill written by a private citizen unknown to the reader. Moreover, the state interest in preventing fraud and libel (which Ohio vindicates by means of other, more direct prohibitions) does not justify § 3599.09(A)'s extremely broad prohibition of anonymous leaflets. The statute encompasses all documents, regardless of whether they are arguably false or misleading. Although a State might somehow demonstrate that its enforcement interests justify a more limited identification requirement, Ohio has not met that burden here. Pp. 348-353.(d) This Court's opinions in Bellotti, 435 U. S., at 792, n. 32-which commented in dicta on the prophylactic effect of requiring identification of the source of corporate campaign advertising-and Buckley v. Valeo, 424 U. S. 1, 75-76-which approved mandatory disclosure of campaign-related expenditures-do not establish the constitutionality of § 3599.09(A), since neither case involved a prohibition of anonymous campaign literature. Pp. 353-356.67 Ohio St. 3d 391, 618 N. E. 2d 152, reversed.STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring opinion, post, p. 358. THOMAS, J., filed an opinion concurring in the judgment, post, p. 358. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined, post, p. 371.David Goldberger argued the cause for petitioner. With him on the briefs were George Q. Vaile, Steven R. Shapiro, Joel M. Gora, Barbara P. O'Toole, and Louis A. Jacobs.Andrew 1. Sutter, Assistant Attorney General of Ohio, argued the cause for respondent. With him on the briefs were Lee Fisher, Attorney General, Andrew S. Bergman, Robert A. Zimmerman, and James M. Harrison, Assistant At-336Full Text of Opinion

1978_77-752

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.This case arises out of the National Labor Relations Board's exercise of jurisdiction over lay faculty members at two groups of Catholic high schools. We granted certiorari to consider two questions: (a) whether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act; and (b) if the Act authorizes such jurisdiction, does its exercise violate the guarantees of the Religion Clauses f the First Amendment? 434 U.S. 1061 (1978). Page 440 U. S. 492IOne group of schools is operated by the Catholic Bishop of Chicago, a corporation sole; the other group is operated by the Diocese of Fort Wayne-South Bend, Inc. The group operated by the Catholic Bishop of Chicago consists of two schools, Quigley North and Quigley South. [Footnote 1] Those schools are termed "minor seminaries" because of their role in educating high school students who may become priests. At one time, only students who manifested a positive and confirmed desire to be priests were admitted to the Quigley schools. In 1970, the requirement was changed so that students admitted to these schools need not show a definite inclination toward the priesthood. Now the students need only be recommended by their parish priest as having a potential for the priesthood or for Christian leadership. The schools continue to provide special religious instruction not offered in other Catholic secondary schools. The Quigley schools also offer essentially the same college preparatory curriculum as public secondary schools. Their students participate in a variety of extracurricular activities which include secular as well as religious events. The schools are recognized by the State and accredited by a regional educational organization. [Footnote 2]The Diocese of Fort Wayne-South Bend, Inc., has five high schools. [Footnote 3] Unlike the Quigley schools, the special recommendation Page 440 U. S. 493 of a priest is not a prerequisite for admission. Like the Quigley schools, however, these high schools seek to provide a traditional secular education, but oriented to the tenets of the Roman Catholic faith; religious training is also mandatory. These schools are similarly certified by the State. [Footnote 4]In 1974 and 1975, separate representation petitions were filed with the Board by interested union organizations for both the Quigley and the Fort Wayne-South Bend schools; representation was sought only for lay teachers. [Footnote 5] The schools challenged the assertion of jurisdiction on two grounds: (a) that they do not fall within the Board's discretionary jurisdictional criteria; and (b) that the Religion Clauses of the First Amendment preclude the Board's jurisdiction. The Board rejected the jurisdictional arguments on the basis of its decision in Roman Catholic Archdiocese of Baltimore, 216 N.L.R.B. 249 (1975). There the Board explained that its policy was to decline jurisdiction over religiously sponsored organizations "only when they are completely religious, not just religiously associated." Id. at 250. Because neither group of schools was found to fall within the Board's "completely religious" category, the Board ordered elections. Catholic Bishop of Chicago, 220 N.L.R.B. 359 (1975). [Footnote 6] Page 440 U. S. 494In the Board-supervised election at the Quigley schools, the Quigley Education Alliance, a union affiliated with the Illinois Education Association, prevailed and was certified as the exclusive bargaining representative for 46 lay teachers. In the Diocese of Fort Wayne-South Bend, the Community Alliance for Teachers of Catholic High Schools, a similar union organization, prevailed and was certified as the representative for the approximately 180 lay teachers. Notwithstanding the Board's order, the schools declined to recognize the unions or to bargain. The unions filed unfair labor practice complaints with the Board under §§ 8(a)(1) and (5) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. §§ 158(a)(1) and (5). The schools opposed the General Counsel's motion for summary judgment, again challenging the Board's exercise of jurisdiction over religious schools on both statutory and constitutional grounds.The Board reviewed the record of previous proceedings and concluded that all of the arguments had been raised or could have been raised in those earlier proceedings. Since the arguments had been rejected previously, the Board granted summary judgment, holding that it had properly exercised its statutory discretion in asserting jurisdiction over these schools. [Footnote 7] The Board concluded that the schools had violated the Act and ordered that they cease their unfair labor practices and that they bargain collectively with the unions. Catholic Page 440 U. S. 495 Bishop of Chicago, 224 N.L.R.B. 1221 (1976); Diocese of Fort Wayne-South Bend, Inc., 224 N.L.R.B. 1226 (1976).IIThe schools challenged the Board's orders in petitions to the Court of Appeals for the Seventh Circuit. That court denied enforcement of the Board's orders. 559 F.2d 1112 (1977). [Footnote 8] The court considered the Board's actions in relation to its discretion in choosing to extend its jurisdiction only to religiously affiliated schools that were not "completely religious." It concluded that the Board had not properly exercised its discretion, because the Board's distinction between "completely religious" and "merely religiously associated" failed to provide a workable guide for the exercise of discretion:"We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where 'completely religious' takes over or, on the other hand, ceases. In our opinion, the dichotomous 'completely religious -- merely religiously associated' standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e.g., [ 406 U. S. ] Yoder, . . . 406 U. S. 205 [(1972)]."Id. at 1118.The Court of Appeals recognized that the rejection of the Board's policy as to church-operated schools meant that the Board would extend its jurisdiction to all church-operated Page 440 U. S. 496 schools. The court therefore turned to the question of whether the Board could exercise that jurisdiction, consistent with constitutional limitations. It concluded that both the Free Exercise Clause and the Establishment Clause of the First Amendment foreclosed the Board's jurisdiction. It reasoned that, from the initial act of certifying a union as the bargaining agent for lay teachers, the Board's action would impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion. It analyzed the Board's action in this way:"At some point, factual inquiry by courts or agencies into such matters [separating secular from religious training] would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an 'integral part of the religious mission of the Catholic Church,' Lemon \[v. Kurtzman, 403 U. S. 602], 403 U. S. 616 [(1971)], courts and agencies would be hard-pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature."Ibid.The court distinguished local regulations which required fire inspections or state laws mandating attendance, reasoning that they did not"have the clear inhibiting potential upon the relationship between teachers and employers with which the present Board order is directly concerned."Id. at 1124. The court held that interference with management prerogatives, found acceptable in an ordinary commercial setting, was not acceptable in an area protected by the First Amendment."The real difficulty is found in the chilling aspect that the requirement of bargaining will impose on the exercise of the bishops' control of the religious mission of the schools."Ibid. Page 440 U. S. 497IIIThe Board's assertion of jurisdiction over private schools is, as we noted earlier, a relatively recent development. Indeed, in 1951, the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions because to do so would not effectuate the purposes of the Act. Trustees of Columbia University in the City of New York, 97 N.L.R.B. 424. In 1970, however, the Board pointed to what it saw as an increased involvement in commerce by educational institutions and concluded that this required a different position on jurisdiction. In Cornell University, 183 N.L.R.B. 329, the Board overruled its Columbia University decision. Cornell University was followed by the assertion of jurisdiction over nonprofit, private secondary schools. Shattuck School, 189 N.L.R.B. 886 (1971). See also Judson School, 209 N.L.R.B. 677 (1974). The Board now asserts jurisdiction over all private, nonprofit, educational institutions with gross annual revenues that meet its jurisdictional requirements whether they are secular or religious. 29 CFR § 103.1 (1978). See, e.g., Academia San Jorge, 234 N.L.R.B. 1181 (1978) (advisory opinion stating that Board would not assert jurisdiction over Catholic educational institution which did not meet jurisdictional standards); Windsor School, Inc., 199 N.L.R.B. 457, 200 N.L.R.B. 991 (1972) (declining jurisdiction where private, proprietary school did not meet jurisdictional amounts).That broad assertion of jurisdiction has not gone unchallenged. But the Board has rejected the contention that the Religion Clauses of the First Amendment bar the extension of its jurisdiction to church-operated schools. Where the Board has declined to exercise jurisdiction, it has done so only on the grounds of the employer's minimal impact on commerce. Thus, in Association of Hebrew Teachers of Metropolitan Detroit, 210 N.L.R.B. 1053 (1974), the Board did not assert jurisdiction over the Association which offered Page 440 U. S. 498 courses in Jewish culture in after-school classes, a nursery school, and a college. The Board termed the Association an "isolated instance of [an] atypical employer." Id. at 1058-1059. It explained:"Whether an employer falls within a given 'class' of enterprise depends upon those of its activities which are predominant and give the employing enterprise its character. . . . [T]he fact that an employer's activity . . . is dedicated to a sectarian religious purpose is not a sufficient reason for the Board to refrain from asserting jurisdiction."Id. at 1058. Cf. Board of Jewish Education of Greater Washington, D.C., 210 N.L.R.B. 1037 (1974). In the same year, the Board asserted jurisdiction over an Association chartered by the State of New York to operate diocesan high schools. Henry M. Hald High School Assn., 213 N.L.R.B. 415 (1974). It rejected the argument that its assertion of jurisdiction would produce excessive governmental entanglement with religion. In the Board's view, the Association had chosen to entangle itself with the secular world when it decided to hire lay teachers. Id. at 418 n. 7. [Footnote 9]When it ordered an election for the lay professional employees at five parochial high schools in Baltimore in 1975, the Board reiterated its belief that exercise of its jurisdiction is not contrary to the First Amendment:"[T]he Board's policy in the past has been to decline jurisdiction over similar institutions only when they are completely religious, not just religiously associated, and the Archdiocese concedes that instruction is not limited to religious subjects. That the Archdiocese seeks to provide an education based on Christian principles does not lead to a contrary conclusion. Most religiously associated institutions seek to operate in conformity with Page 440 U. S. 499 their religious tenets."Roman Catholic Archdiocese of Baltimore, 216 N.L.R.B. at 250The Board also rejected the First Amendment claims in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N.L.R.B. 1218, 1218 (1976):"Regulation of labor relations does not violate the First Amendment when it involves a minimal intrusion on religious conduct and is necessary to obtain [the Act's] objective."(Emphasis added.)The Board thus recognizes that its assertion of jurisdiction over teachers in religious schools constitutes some degree of intrusion into the administration of the affairs of church-operated schools. Implicit in the Board's distinction between schools that are "completely religious" and those "religiously associated" is also an acknowledgment of some degree of entanglement. Because that distinction was measured by a school's involvement with commerce, however, and not by its religious association, it is clear that the Board never envisioned any sort of religious litmus test for determining when to assert jurisdiction. Nevertheless, by expressing its traditional jurisdictional standards in First Amendment terms, the Board has plainly recognized that intrusion into this area could run afoul of the Religion Clauses, and hence preclude jurisdiction on constitutional grounds.IVThat there are constitutional limitations on the Board's actions has been repeatedly recognized by this Court even while acknowledging the broad scope of the grant of jurisdiction. The First Amendment, of course, is a limitation on the power of Congress. Thus, if we were to conclude that the Act granted the challenged jurisdiction over these teachers we would be required to decide whether that was constitutionally permissible under the Religion Clauses of the First Amendment. Page 440 U. S. 500Although the respondents press their claims under the Religion Clauses, the question we consider first is whether Congress intended the Board to have jurisdiction over teachers in church-operated schools. In a number of cases, the Court has heeded the essence of Mr. Chief Justice Marshall's admonition in Murray v. The Charming Betsy, 2 Cranch 64, 6 U. S. 118 (1804), by holding that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available. Moreover, the Court has followed this policy in the interpretation of the Act now before us and related statutes. In Machinists v. Street, 367 U. S. 740 (1961), for example, the Court considered claims that serious First Amendment questions would arise if the Railway Labor Act were construed to allow compulsory union dues to be used to support political candidates or causes not approved by some members. The Court looked to the language of the Act and the legislative history and concluded that they did not permit union dues to be used for such political purposes, thus avoiding "serious doubt of [the Act's] constitutionality." Id. at 367 U. S. 749. Similarly in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), a case involving the Board's assertion of jurisdiction over foreign seamen, the Court declined to read the National Labor Relations Act so as to give rise to a serious question of separation of powers which, in turn, would have implicated sensitive issues of the authority of the Executive over relations with foreign nations. The international implications of the case led the Court to describe it as involving "public questions particularly high in the scale of our national interest." Id. at 372 U. S. 17. Because of those questions, the Court held that, before sanctioning the Board's exercise of jurisdiction, "there must be present the affirmative intention of the Congress clearly expressed.'" Id. at 372 U. S. 21-22 (quoting Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 353 U. S. 147 (1957)). Page 440 U. S. 501The values enshrined in the First Amendment plainly rank high "in the scale of our national values." In keeping with the Court's prudential policy, it is incumbent on us to determine whether the Board's exercise of its jurisdiction here would give rise to serious constitutional questions. If so, we must first identify "the affirmative intention of the Congress clearly expressed" before concluding that the Act grants jurisdiction.VIn recent decisions involving aid to parochial schools, we have recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school. What was said of the schools in Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 617 (1971), is true of the schools in this case: "Religious authority necessarily pervades the school system." The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools. For example, in Lemon, supra at 403 U. S. 617, we wrote:"In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation."(Emphasis added.)Only recently, we again noted the importance of the teacher's function in a church school:"Whether the subject is 'remedial reading,' 'advanced reading,' or simply 'reading,' a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists."Meek v. Pittenger, 421 U. S. 349, 421 U. S. 370 (197). Cf. Page 440 U. S. 502 Wolman v. Walter, 433 U. S. 229, 433 U. S. 244 (1977). Good intentions by government -- or third parties -- can surely no more avoid entanglement with the religious mission' of the school in the setting of mandatory collective bargaining than in the well motivated legislative efforts consented to by the church-operated schools which we found unacceptable in Lemon, Meek, and Wolman.The Board argues that it can avoid excessive entanglement, since it will resolve only factual issues such as whether an anti-union animus motivated an employer's action. But at this stage of our consideration, we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.Moreover, it is already clear that the Board's actions will go beyond resolving factual issues. The Court of Appeals' opinion refers to charges of unfair labor practices filed against religious schools. 559 F.2d at 1125, 1126. The court observed that, in those cases, the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the Board, in may instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions. [Footnote 10]The Board's exercise of jurisdiction will have at least one other impact on church-operated schools. The Board will be called upon to decide what are "terms and conditions of Page 440 U. S. 503 employment," and therefore mandatory subjects of bargaining. See 29 U.S.C. § 158(d). Although the Board has not interpreted that phrase as it relates to educational institutions, similar state provisions provide insight into the effect of mandatory bargaining. The Oregon Court of Appeals noted that "nearly everything that goes on in the schools affects teachers, and is therefore arguably a condition of employment.'" Springfield Education Assn. v. Springfield School Dist. No.19, 24 Ore.App. 751, 759, 547 P.2d 647, 650 (1976).The Pennsylvania Supreme Court aptly summarized the effect of mandatory bargaining when it observed that the"introduction of a concept of mandatory collective bargaining, regardless of how narrowly the scope of negotiation is defined, necessarily represents an encroachment upon the former autonomous position of management."Pennsylvania Labor Relations Board v. State College Area School Dist., 461 Pa. 494, 504, 337 A.2d 262, 267 (1975). Cf. Clark County School Dist. v. Local Government Employee-Management Relations Board, 90 Nev. 442, 447, 530 P.2d 114, 117-118 (1974). See M. Lieberman & M. Moskow, Collective Negotiations for Teachers 221-247 (1966). Inevitably the Board's inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. What we said in Lemon, supra at 403 U. S. 616, applies as well here:"[P]arochial schools involve substantial religious activity and purpose.""The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid."(Footnote omitted.) Mr. Justice Douglas emphasized this in his concurring opinion in Lemon, noting "the admitted and obvious fact that the raison d'etre of parochial schools is the propagation of a religious faith." 403 U.S. at 403 U. S. 628. Page 440 U. S. 504The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow. We therefore turn to an examination of the National Labor Relations Act to decide whether it must be read to confer jurisdiction that would in turn require a decision on the constitutional claims raised by respondents.VIThere is no clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act. Admittedly, Congress defined the Board's jurisdiction in very broad terms; we must therefore examine the legislative history of the Act to determine whether Congress contemplated that the grant of jurisdiction would include teachers in such schools.In enacting the National Labor Relations Act in 1935, Congress sought to protect the right of American workers to bargain collectively. The concern that was repeated throughout the debates was the need to assure workers the right to organize to counterbalance the collective activities of employers which had been authorized by the National Industrial Recovery Act. But congressional attention focused on employment in private industry and on industrial recovery. See, e.g., 79 Cong.Rec. 7573 (1935) (remarks of Sen. Wagner), 2 National Labor Relations Board, Legislative History of the National Labor Relations Act, 1935, pp. 2341-2343 (1949).Our examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated schools. It is not without significance, however, that the Senate Committee on Education and Labor chose a college professor's dispute with the college as an example of Page 440 U. S. 505 employer-employee relations not covered by the Act. S.Rep. No. 573, 74th Cong., 1st Sess., 7 (1935), 2 Legislative History, supra, at 2307.Congress' next major consideration of the jurisdiction of the Board came during the passage of the Labor Management Relations Act of 1947 -- the Taft-Hartley Act. In that Act, Congress amended the definition of "employer" in § 2 of the original Act to exclude nonprofit hospitals. 61 Stat. 137, 29 U.S.C. § 152(2) (1970 ed.). There was some discussion of the scope of the Board's jurisdiction, but the consensus was that nonprofit institutions in general did not fall within the Board's jurisdiction, because they did not affect commerce. See H.R. 3020, 80th Cong., 1st Sess. (1947), 1 National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, p. 34 (1948) (hereinafter Leg.Hist.); H.R.Rep. No. 245, 80th Cong., 1st Sess., 12 (1947), 1 Leg.Hist. 303; H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 3, 32 (1947), 1 Leg.Hist. 507, 536; 93 Cong.Rec. 4997 (1947), 2 Leg.Hist. 1464 (remarks of Sens. Tydings and Taft). [Footnote 11]The most recent significant amendment to the Act was passed in 1974, removing the exemption of nonprofit hospitals. Pub.L. 93-360, 88 Stat. 395. The Board relies upon that amendment as showing that Congress approved the Board's exercise of jurisdiction over church-operated schools. A close examination of that legislative history, however, reveals nothing to indicate an affirmative intention that such schools be within the Board's jurisdiction. Since the Board did not assert jurisdiction over teachers in a church-operated Page 440 U. S. 506 school until after the 1974 amendment, nothing in the history of the amendment can be read as reflecting Congress' tacit approval of the Board's action.During the debate, there were expressions of concern about the effect of the bill on employees of religious hospitals whose religious beliefs would not permit them to join a union. 120 Cong.Rec. 12946, 16914 (1974), Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, 93d Cong., 2d Sess., 118, 331-332 (1974) (remarks of Sen. Ervin and Rep. Erlenborn). The result of those concerns was an amendment which reflects congressional sensitivity to First Amendment guarantees:"Any employee of a health care institution who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required, in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious charitable fund exempt from taxation under section 501(c)(3) of title 26, chosen by such employee from a list of at least three such funds, designated in a contract between such institution and a labor organization, or if the contract fails to designate such funds, then to any such fund chosen by the employee."29 U.S.C. § 169. The absence of an "affirmative intention of the Congress clearly expressed" fortifies our conclusion that Congress did not contemplate that the Board would require church-operated schools to grant recognition to unions as bargaining agents for their teachers.The Board relies heavily upon Associated Press v. NLRB, Page 440 U. S. 507 301 U. S. 103 (1937). There the Court held that the First Amendment was no bar to the application of the Act to the Associated Press, an organization engaged in collecting information and news throughout the world and distributing it to its members. Perceiving nothing to suggest that application of the Act would infringe First Amendment guarantees of press freedoms, the Court sustained Board jurisdiction. Id. at 301 U. S. 131-132. Here, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction over teachers in church-operated schools would implicate the guarantees of the Religion Clauses.Accordingly, in the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could, in turn, call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.Affirmed

U.S. Supreme CourtNLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)National Labor Relations Board v. Catholic Bishop of ChicagoNo. 77-752Argued October 30, 1978Decided March 21, 1979440 U.S. 490SyllabusThe National Labor Relations Board (NLRB) certified unions as bargaining agents for lay teachers in schools operated by respondents, which refused to recognize or bargain with the unions; the NLRB issued cease-and-desist orders against respondents, holding that it had properly assumed jurisdiction over the schools. Exercise of jurisdiction was asserted to be in line with its policy of declining jurisdiction only when schools are "completely religious" not just "religiously associated," as it found to be the case here, because the schools taught secular as well as religious subjects. On respondents' challenges to the NLRB orders, the Court of Appeals denied enforcement, holding that the NLRB standard failed to provide a workable guide for the exercise of its discretion, and that the NLRB's assumption of jurisdiction was foreclosed by the Religion Clauses of the First Amendment.Held: Schools operated by a church to teach both religious and secular subjects are not within the jurisdiction granted by the National Labor Relations Act, and the NLRB was therefore without authority to issue the orders against respondents. Pp. 440 U. S. 499-507.(a) There would be a significant risk of infringement of the Religion Clauses of the First Amendment if the Act conferred jurisdiction over church-operated schools. Cf. Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 617. Pp. 440 U. S. 501-504.(b) Neither the language of the statute nor its legislative history discloses any affirmative intention by Congress that church-operated schools be within the NLRB's jurisdiction, and, absent a clear expression of Congress' intent to bring teachers of church-operated schools within the NLRB's jurisdiction, the Court will not construe the Act in such a way as would call for the resolution of difficult and sensitive First Amendment questions. Pp. 440 U. S. 504-507.559 F.2d 1112, affirmed.BURGER, C.J., delivered the opinion of the Court, in which STEWART, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a Page 440 U. S. 491 dissenting opinion, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post, p. 440 U. S. 508.

1984_83-2097

JUSTICE BRENNAN delivered the opinion of the Court.The State of Florida's long-arm statute extends jurisdiction to "[a]ny person, whether or not a citizen or resident of this state," who, inter alia, "[b]reach[es] a contract in this state by failing to perform acts required by the contract to be performed in this state," so long as the cause of action Page 471 U. S. 464 arises from the alleged contractual breach. Fla.Stat. § 48.193 (1)(g) (Supp.1984). The United States District Court for the Southern District of Florida, sitting in diversity, relied on this provision in exercising personal jurisdiction over a Michigan resident who allegedly had breached a franchise agreement with a Florida corporation by failing to make required payments in Florida. The question presented is whether this exercise of long-arm jurisdiction offended "traditional conception[s] of fair play and substantial justice" embodied in the Due Process Clause of the Fourteenth Amendment. International Shoe Co. v. Washington, 326 U. S. 310, 320 (1945).IABurger King Corporation is a Florida corporation whose principal offices are in Miami. It is one of the world's largest restaurant organizations, with over 3,000 outlets in the 50 States, the Commonwealth of Puerto Rico, and 8 foreign nations. Burger King conducts approximately 80% of its business through a franchise operation that the company styles the "Burger King System" -- "a comprehensive restaurant format and operating system for the sale of uniform and quality food products." App. 46. [Footnote 1] Burger King licenses its franchisees to use its trademarks and service marks for a period of 20 years, and leases standardized restaurant facilities to them for the same term. In addition, franchisees acquire a variety of proprietary information concerning the "standards, specifications, procedures and methods for operating Page 471 U. S. 465 a Burger King Restaurant." Id. at 52. They also receive market research and advertising assistance; ongoing training in restaurant management; [Footnote 2] and accounting, cost-control, and inventory-control guidance. By permitting franchisees to tap into Burger King's established national reputation and to benefit from proven procedures for dispensing standardized fare, this system enables them to go into the restaurant business with significantly lowered barriers to entry. [Footnote 3]In exchange for these benefits, franchisees pay Burger King an initial $40,000 franchise fee and commit themselves to payment of monthly royalties, advertising and sales promotion fees, and rent computed in part from monthly gross sales. Franchisees also agree to submit to the national organization's exacting regulation of virtually every conceivable aspect of their operations. [Footnote 4] Burger King imposes these standards and undertakes its rigid regulation out of conviction that"[u]niformity of service, appearance, and quality of product is essential to the preservation of the Burger King image and the benefits accruing therefrom to both Franchisee and Franchisor."Id. at 31.Burger King oversees its franchise system through a two-tiered administrative structure. The governing contracts Page 471 U. S. 466 provide that the franchise relationship is established in Miami and governed by Florida law, and call for payment of all required fees and forwarding of all relevant notices to the Miami headquarters. [Footnote 5] The Miami headquarters sets policy and works directly with its franchisees in attempting to resolve major problems. See nn. 7 9 infra. Day-to-day monitoring of franchisees, however, is conducted through a network of 10 district offices which, in turn, report to the Miami headquarters.The instant litigation grows out of Burger King's termination of one of its franchisees, and is aptly described by the franchisee as "a divorce proceeding among commercial partners." 5 Record 4. The appellee John Rudzewicz, a Michigan citizen and resident, is the senior partner in a Detroit accounting firm. In 1978, he was approached by Brian MacShara, the son of a business acquaintance, who suggested that they jointly apply to Burger King for a franchise in the Detroit area. MacShara proposed to serve as the manager of the restaurant if Rudzewicz would put up the investment capital; in exchange, the two would evenly share the profits. Believing that MacShara's idea offered attractive investment and tax-deferral opportunities, Rudzewicz agreed to the venture. 6 id. at 438-439, 444, 460.Rudzewicz and MacShara jointly applied for a franchise to Burger King's Birmingham, Michigan, district office in the autumn of 1978. Their application was forwarded to Burger King's Miami headquarters, which entered into a preliminary agreement with them in February, 1979. During the ensuing four months, it was agreed that Rudzewicz and MacShara would assume operation of an existing facility in Drayton Plains, Michigan. MacShara attended the prescribed management courses in Miami during this period, see n. 2 supra, and the franchisees purchased $165,000 worth of restaurant equipment from Burger King's Davmor Industries division in Page 471 U. S. 467 Miami. Even before the final agreements were signed, however, the parties began to disagree over site-development fees, building design, computation of monthly rent, and whether the franchisees would be able to assign their liabilities to a corporation they had formed. [Footnote 6] During these disputes, Rudzewicz and MacShara negotiated both with the Birmingham district office and with the Miami headquarters. [Footnote 7] With some misgivings, Rudzewicz and MacShara finally obtained limited concessions from the Miami headquarters, [Footnote 8] signed the final agreements, and commenced operations in June, 1979. By signing the final agreements, Rudzewicz obligated himself personally to payments exceeding $1 million over the 20-year franchise relationship. Page 471 U. S. 468The Drayton Plains facility apparently enjoyed steady business during the summer of 1979, but patronage declined after a recession began later that year. Rudzewicz and MacShara soon fell far behind in their monthly payments to Miami. Headquarters sent notices of default, and an extended period of negotiations began among the franchisees, the Birmingham district office, and the Miami headquarters. After several Burger King officials in Miami had engaged in prolonged but ultimately unsuccessful negotiations with the franchisees by mail and by telephone, [Footnote 9] headquarters terminated the franchise and ordered Rudzewicz and MacShara to vacate the premises. They refused, and continued to occupy and operate the facility as a Burger King restaurant.BBurger King commenced the instant action in the United States District Court for the Southern District of Florida in May, 1981, invoking that court's diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) and its original jurisdiction over federal trademark disputes pursuant to § 1338(a). [Footnote 10] Burger King alleged that Rudzewicz and MacShara had breached their franchise obligations "within [the jurisdiction of] this district court" by failing to make the required payments "at plaintiff's place of business in Miami, Dade County, Florida," � 6, App. 121, and also charged that they were tortiously infringing Page 471 U. S. 469 its trademarks and service marks through their continued, unauthorized operation as a Burger King restaurant, �� 35-53, App. 130-135. Burger King sought damages, injunctive relief, and costs and attorney's fees. Rudzewicz and MacShara entered special appearances and argued, inter alia, that, because they were Michigan residents, and because Burger King's claim did not "arise" within the Southern District of Florida, the District Court lacked personal jurisdiction over them. The District Court denied their motions after a hearing, holding that, pursuant to Florida's long-arm statute,"a nonresident Burger King franchisee is subject to the personal jurisdiction of this Court in actions arising out of its franchise agreements."Id. at 138. Rudzewicz and MacShara then filed an answer and a counterclaim seeking damages for alleged violations by Burger King of Michigan's Franchise Investment Law, Mich.Comp.Laws § 445.1501 et seq. (1979).After a 3-day bench trial, the court again concluded that it had "jurisdiction over the subject matter and the parties to this cause." App. 159. Finding that Rudzewicz and MacShara had breached their franchise agreements with Burger King and had infringed Burger King's trademarks and service marks, the court entered judgment against them, jointly and severally, for $228,875 in contract damages. The court also ordered them "to immediately close Burger King Restaurant Number 775 from continued operation or to immediately give the keys and possession of said restaurant to Burger King Corporation," id. at 163, found that they had failed to prove any of the required elements of their counterclaim, and awarded costs and attorney's fees to Burger King.Rudzewicz appealed to the Court of Appeals for the Eleventh Circuit. [Footnote 11] A divided panel of that Circuit reversed the Page 471 U. S. 470 judgment, concluding that the District Court could not properly exercise personal jurisdiction over Rudzewicz pursuant to Fla.Stat. § 48.193(1)(g) (Supp.1984) because"the circumstances of the Drayton Plains franchise and the negotiations which led to it left Rudzewicz bereft of reasonable notice and financially unprepared for the prospect of franchise litigation in Florida."Burger King Corp. v. MacShara, 724 F.2d 1505, 1513 (1984). Accordingly, the panel majority concluded that "[j]urisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process." Ibid. .Burger King appealed the Eleventh Circuit's judgment to this Court pursuant to 28 U.S.C. § 1254(2), and we postponed probable jurisdiction. 469 U.S. 814 (1984). Because it is unclear whether the Eleventh Circuit actually held that Fla.Stat. § 48.193(1)(g) (Supp.1984) itself is unconstitutional as applied to the circumstances of this case, we conclude that jurisdiction by appeal does not properly lie, and therefore dismiss the appeal. [Footnote 12] Treating the jurisdictional Page 471 U. S. 471 statement as a petition for a writ of certiorari, see 28 U.S.C. § 2103, we grant the petition, and now reverse.IIAThe Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a Page 471 U. S. 472 forum with which he has established no meaningful "contacts, ties, or relations." International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 319. [Footnote 13] By requiring that individuals have "fair warning that a particular activity may subject [them] to the jurisdiction of foreign sovereign," Shaffer v. Heitner, 433 U. S. 186, 433 U. S. 218 (1977) (STEVENS, J., concurring in judgment), the Due Process Clause"gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit,"World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 444 U. S. 297 (1980).Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, [Footnote 14] this "fair warning" requirement is satisfied if the defendant has "purposefully directed" his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 465 U. S. 774 (1984), and the litigation results from alleged injuries that "arise out of or relate to" those activities, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U. S. 408, 466 U. S. 414 Page 471 U. S. 473 (1984). [Footnote 15] Thus"[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State"and those products subsequently injure forum consumers. World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 297-298. Similarly, a publisher who distributes magazines in a distant State may fairly be held accountable in that forum for damages resulting there from an allegedly defamatory story. Keeton v. Hustler Magazine, Inc., supra; see also Calder v. Jones, 465 U. S. 783 (1984) (suit against author and editor). And with respect to interstate contractual obligations, we have emphasized that parties who "reach out beyond one state and create continuing relationships and obligations with citizens of another state" are subject to regulation and sanctions in the other State for the consequences of their activities. Travelers Health Assn. v. Virginia, 339 U. S. 643, 339 U. S. 647 (1950). See also McGee v. International Life Insurance Co., 355 U. S. 220, 355 U. S. 222-223 (1957).We have noted several reasons why a forum legitimately may exercise personal jurisdiction over a nonresident who "purposefully directs" his activities toward forum residents. A State generally has a "manifest interest" in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors. Id. at 355 U. S. 223; see also Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 776. Moreover, where individuals "purposefully derive benefit" from their interstate activities, Kulko v. California Superior Court, Page 471 U. S. 474 436 U. S. 84, 436 U. S. 96 (1978), it may well be unfair to allow them to escape having to account in other States for consequences that arise proximately from such activities; the Due Process Clause may not readily be wielded as a territorial shield to avoid interstate obligations that have been voluntarily assumed. And because"modern transportation and communications have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity,"it usually will not be unfair to subject him to the burdens of litigating in another forum for disputes relating to such activity. McGee v. International Life Insurance Co., supra, at 355 U. S. 223.Notwithstanding these considerations, the constitutional touchstone remains whether the defendant purposefully established "minimum contacts" in the forum State. International Shoe Co. v. Washington, supra, at 326 U. S. 316. Although it has been argued that foreseeability of causing injury in another State should be sufficient to establish such contacts there when policy considerations so require, [Footnote 16] the Court has consistently held that this kind of foreseeability is not a "sufficient benchmark" for exercising personal jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 295. Instead,"the foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there."Id. at 444 U. S. 297. In defining when it is that a potential defendant should "reasonably anticipate" out-of-state litigation, the Court frequently has drawn from the reasoning of Hanson v. Denckla, 357 U. S. 235, 357 U.S. 253 (1958):"The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application Page 471 U. S. 475 of that rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws."This "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts, Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 774; World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 299, or of the "unilateral activity of another party or a third person," Helicopteros Nacionales de Colombia, S.A. v. Hall, supra, at 466 U. S. 417. [Footnote 17] Jurisdiction is proper, however, where the contacts proximately result from actions by the defendant himself that create a "substantial connection" with the forum State. McGee v. International Life Insurance Co., supra, at 355 U. S. 223; see also Kulko v. California Superior Court, supra, at 436 U. S. 94 n. 7. [Footnote 18] Thus where the defendant "deliberately" has Page 471 U. S. 476 engaged in significant activities within a State, Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 781, or has created "continuing obligations" between himself and residents of the forum, Travelers Health Assn. v. Virginia, 339 U.S. at 339 U. S. 648, he manifestly has availed himself of the privilege of conducting business there, and, because his activities are shielded by "the benefits and protections" of the forum's laws, it is presumptively not unreasonable to require him to submit to the burdens of litigation in that forum as well.Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum State. Although territorial presence frequently will enhance a potential defendant's affiliation with a State and reinforce the reasonable foreseeability of suit there, it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there. Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 774-775; see also Calder v. Jones, 465 U.S. at 465 U. S. 788-790; McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 222-223. Cf. Hoopeston Canning Co. v. Cullen, 318 U. S. 313, 318 U. S. 317 (1943)Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with "fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 320. Thus, Page 471 U. S. 477 courts in "appropriate case[s]" may evaluate "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate judicial system's interest in obtaining the most efficient resolution of controversies," and the "shared interest of the several States in furthering fundamental substantive social policies." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 292. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. See, e.g., Keeton v. Hustler Magazine, Inc., supra, at 465 U. S. 780; Calder v. Jones, supra, at 465 U. S. 788-789; McGee v. International Life Insurance Co., supra, at 355 U. S. 223-224. On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional. For example, the potential clash of the forum's law with the "fundamental substantive social policies" of another State may be accommodated through application of the forum's choice-of-law rules. [Footnote 19] Similarly, a defendant claiming substantial inconvenience may seek a change of venue. [Footnote 20] Nevertheless, minimum requirements inherent in the concept of "fair play and substantial Page 471 U. S. 478 justice" may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities. World-Wide Volkswagen Corp. v. Woodson, supra, at 444 U. S. 292; see also Restatement (Second) of Conflict of Laws §§ 36-37 (1971). As we previously have noted, jurisdictional rules may not be employed in such a way as to make litigation "so gravely difficult and inconvenient" that a party unfairly is at a "severe disadvantage" in comparison to his opponent. The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 407 U. S. 18 (1972) (re forum-selection provisions); McGee v. International Life Insurance Co., supra, at 355 U. S. 223-224.B(1)Applying these principles to the case at hand, we believe there is substantial record evidence supporting the District Court's conclusion that the assertion of personal jurisdiction over Rudzewicz in Florida for the alleged breach of his franchise agreement did not offend due process. At the outset, we note a continued division among lower courts respecting whether and to what extent a contract can constitute a "contact" for purposes of due process analysis. [Footnote 21] If the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot. The Court long ago rejected the notion that personal jurisdiction might turn on "mechanical" tests, International Shoe Co. v. Washington, supra, at 326 U. S. 319, or on "conceptualistic . . . theories of the place of contracting or of performance," Hoopeston Canning Co. v. Cullen, Page 471 U. S. 479 318 U.S. at 318 U. S. 316. Instead, we have emphasized the need for a "highly realistic" approach that recognizes that a "contract" is"ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction."Id. at 318 U. S. 316-317. It is these factors -- prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing -- that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.In this case, no physical ties to Florida can be attributed to Rudzewicz other than MacShara's brief training course in Miami. [Footnote 22] Rudzewicz did not maintain offices in Florida and, for all that appears from the record, has never even visited there. Yet this franchise dispute grew directly out of "a contract which had a substantial connection with that State." McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 223 (emphasis added). Eschewing the option of operating an independent local enterprise, Rudzewicz deliberately "reach[ed] out beyond" Michigan and negotiated with a Florida corporation for the purchase of a long-term franchise and Page 471 U. S. 480 the manifold benefits that would derive from affiliation with a nationwide organization. Travelers Health Assn. v. Virginia, 339 U.S. at 339 U. S. 647. Upon approval, he entered into a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts with Burger King in Florida. In light of Rudzewicz' voluntary acceptance of the long-term and exacting regulation of his business from Burger King's Miami headquarters, the "quality and nature" of his relationship to the company in Florida can in no sense be viewed as "random," "fortuitous," or "attenuated." Hanson v. Denckla, 357 U.S. at 357 U.S. 253; Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 774; World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 299. Rudzewicz' refusal to make the contractually required payments in Miami, and his continued use of Burger King's trademarks and confidential business information after his termination, caused foreseeable injuries to the corporation in Florida. For these reasons it was, at the very least, presumptively reasonable for Rudzewicz to be called to account there for such injuries.The Court of Appeals concluded, however, that, in light of the supervision emanating from Burger King's district office in Birmingham, Rudzewicz reasonably believed that "the Michigan office was, for all intents and purposes, the embodiment of Burger King," and that he therefore had no "reason to anticipate a Burger King suit outside of Michigan." 724 F.2d at 1511. See also post at 471 U. S. 488-489 (STEVENS, J., dissenting). This reasoning overlooks substantial record evidence indicating that Rudzewicz most certainly knew that he was affiliating himself with an enterprise based primarily in Florida. The contract documents themselves emphasize that Burger King's operations are conducted and supervised from the Miami headquarters, that all relevant notices and payments must be sent there, and that the agreements were made in and enforced from Miami. See n 5, supra. Moreover, the parties' actual course of dealing repeatedly confirmed that decisionmaking authority was vested in the Miami headquarters, Page 471 U. S. 481 and that the district office served largely as an intermediate link between the headquarters and the franchisees. When problems arose over building design, site-development fees, rent computation, and the defaulted payments, Rudzewicz and MacShara learned that the Michigan office was powerless to resolve their disputes, and could only channel their communications to Miami. Throughout these disputes, the Miami headquarters and the Michigan franchisees carried on a continuous course of direct communications by mail and by telephone, and it was the Miami headquarters that made the key negotiating decisions out of which the instant litigation arose. See nn. 7 9 supra.Moreover, we believe the Court of Appeals gave insufficient weight to provisions in the various franchise documents providing that all disputes would be governed by Florida law. The franchise agreement, for example, stated:"This Agreement shall become valid when executed and accepted by BKC at Miami, Florida; it shall be deemed made and entered into in the State of Florida and shall be governed and construed under and in accordance with the laws of the State of Florida. The choice of law designation does not require that all suits concerning this Agreement be filed in Florida."App. 72. See also n 5, supra. The Court of Appeals reasoned that choice-of-law provisions are irrelevant to the question of personal jurisdiction, relying on Hanson v. Denckla for the proposition that "the center of gravity for choice-of-law purposes does not necessarily confer the sovereign prerogative to assert jurisdiction." 724 F.2d at 1511-1512, n. 10, citing 357 U.S. at 357 U. S. 254. This reasoning misperceives the import of the quoted proposition. The Court in Hanson and subsequent cases has emphasized that choice-of-law analysis -- which focuses on all elements of a transaction, and not simply on the defendant's conduct -- is distinct from minimum-contacts jurisdictional analysis -- which focuses at the threshold Page 471 U. S. 482 solely on the defendant's purposeful connection to the forum. [Footnote 23] Nothing in our cases, however, suggests that a choice-of-law provision should be ignored in considering whether a defendant has "purposefully invoked the benefits and protections of a State's laws" for jurisdictional purposes. Although such a provision, standing alone, would be insufficient to confer jurisdiction, we believe that, when combined with the 20-year interdependent relationship Rudzewicz established with Burger King's Miami headquarters, it reinforced his deliberate affiliation with the forum State and the reasonable foreseeability of possible litigation there. As Judge Johnson argued in his dissent below, Rudzewicz "purposefully availed himself of the benefits and protections of Florida's laws" by entering into contracts expressly providing that those laws would govern franchise disputes. 724 F.2d at 1513. [Footnote 24](2)Nor has Rudzewicz pointed to other factors that can be said persuasively to outweigh the considerations discussed above, and to establish the unconstitutionality of Florida's assertion of jurisdiction. We cannot conclude that Florida had no "legitimate interest in holding [Rudzewicz] answerable Page 471 U. S. 483 on a claim related to" the contacts he had established in that State. Keeton v. Hustler Magazine, Inc., 465 U.S. at 465 U. S. 776; see also McGee v. International Life Insurance Co., 355 U.S. at 465 U. S. 223 (noting that State frequently will have a "manifest interest in providing effective means of redress for its residents"). [Footnote 25] Moreover, although Rudzewicz has argued at some length that Michigan's Franchise Investment Law, Mich.Comp.Laws § 445.1501 et seq. (1979), governs many aspects of this franchise relationship, he has not demonstrated how Michigan's acknowledged interest might possibly render jurisdiction in Florida unconstitutional. [Footnote 26] Finally, the Court of Appeals' assertion that the Florida litigation "severely impaired [Rudzewicz'] ability to call Michigan witnesses who might be essential to his defense and counterclaim," 724 F.2d at 1512-1513, is wholly without support in the record. [Footnote 27] And even to the extent that it is inconvenient Page 471 U. S. 484 for a party who has minimum contacts with a forum to litigate there, such considerations most frequently can be accommodated through a change of venue. See n 20, supra. Although the Court has suggested that inconvenience may at some point become so substantial as to achieve constitutional magnitude, McGee v. International Life Insurance Co., supra, at 355 U. S. 223, this is not such a case.The Court of Appeals also concluded, however, that the parties' dealings involved "a characteristic disparity of bargaining power" and "elements of surprise," and that Rudzewicz "lacked fair notice" of the potential for litigation in Florida because the contractual provisions suggesting to the contrary were merely "boilerplate declarations in a lengthy printed contract." 724 F.2d at 1511-1512, and n. 10. See also post at 471 U. S. 489-490 (STEVENS, J., dissenting). Rudzewicz presented many of these arguments to the District Court, contending that Burger King was guilty of misrepresentation, fraud, and duress; that it gave insufficient notice in its dealings with him; and that the contract was one of adhesion. See 4 Record 687-691. After a 3-day bench trial, the District Court found that Burger King had made no misrepresentations, that Rudzewicz and MacShara "were and are experienced and sophisticated businessmen," and that "at no time" did they "ac[t] under economic duress or disadvantage imposed by" Burger King. App. 157-158. See also 7 Record 648-649. Federal Rule of Civil Procedure 52(a) requires that "[f]indings of fact shall not be set aside unless clearly erroneous," and neither Rudzewicz nor the Court of Appeals has pointed to record evidence that would support a "definite and firm conviction" that the District Court's findings are mistaken. United States v. United States Gypsum Co., 333 U. S. 364, 333 U. S. 395 (1948). See also Page 471 U. S. 485 Anderson v. Bessemer City, 470 U. S. 564, 470 U. S. 573-576 (1985). To the contrary, Rudzewicz was represented by counsel throughout these complex transactions and, as Judge Johnson observed in dissent below, was himself an experienced accountant"who for five months conducted negotiations with Burger King over the terms of the franchise and lease agreements, and who obligated himself personally to contracts requiring over time payments that exceeded $1 million."724 F.2d at 1514. Rudzewicz was able to secure a modest reduction in rent and other concessions from Miami headquarters, see nn. 8 9 supra; moreover, to the extent that Burger King's terms were inflexible, Rudzewicz presumably decided that the advantages of affiliating with a national organization provided sufficient commercial benefits to offset the detriments.IIINotwithstanding these considerations, the Court of Appeals apparently believed that it was necessary to reject jurisdiction in this case as a prophylactic measure, reasoning that an affirmance of the District Court's judgment would result in the exercise of jurisdiction over "out-of-state consumers to collect payments due on modest personal purchases" and would "sow the seeds of default judgments against franchisees owing smaller debts." 724 F.2d at 1511. We share the Court of Appeals' broader concerns, and therefore reject any talismanic jurisdictional formulas; "the Page 471 U. S. 486 facts of each case must [always] be weighed" in determining whether personal jurisdiction would comport with "fair play and substantial justice." [Footnote 28] Kulko v. California Superior Court, 436 U.S. at 436 U. S. 92. [Footnote 29] The "quality and nature" of an interstate transaction may sometimes be so "random," "fortuitous," or "attenuated" [Footnote 30] that it cannot fairly be said that the potential defendant "should reasonably anticipate being haled into court" in another jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 444 U. S. 297; see also n 18, supra. We also have emphasized that jurisdiction may not be grounded on a contract whose terms have been obtained through "fraud, undue influence, or overweening bargaining power," and whose application would render litigation "so gravely difficult and inconvenient that [a party] will for all practical purposes be deprived of his day in court." The Bremen v. Zapata Off-Shore Co., 407 U.S. at 407 U. S. 12, 407 U. S. 18. Cf. Fuentes v. Shevin, 407 U. S. 67, 407 U. S. 94-96 (1972); National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 375 U. S. 329 (1964) (Black, J., dissenting) (jurisdictional rules may not be employed against small consumers so as to "crippl[e] their defense"). Just as the Due Process Clause allows flexibility in ensuring that commercial actors are not effectively "judgment proof" for the consequences of obligations they voluntarily assume in other States, McGee v. International Life Insurance Co., 355 U.S. at 355 U. S. 223, so too does it prevent rules that would unfairly enable them to obtain default judgments against unwitting customers. Cf. United States v. Rumely, 345 U. S. 41, 345 U. S. 44 (1953) (courts must not be "blind'" to what "`[a]ll others can see and understand'"). Page 471 U. S. 487For the reasons set forth above, however, these dangers are not present in the instant case. Because Rudzewicz established a substantial and continuing relationship with Burger King's Miami headquarters, received fair notice from the contract documents and the course of dealing that he might be subject to suit in Florida, and has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair, we conclude that the District Court's exercise of jurisdiction pursuant to Fla.Stat. § 48.193(1)(g) (Supp.1984) did not offend due process. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBurger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)Burger King Corp. v. RudzewiczNo. 83-2097Argued January 8, 1985Decided May 20, 1985471 U.S. 462SyllabusAppellant is a Florida corporation whose principal offices are in Miami. It conducts most of its restaurant business through a franchise operation, under which franchisees are licensed to use appellant's trademarks and service marks in leased standardized restaurant facilities for a period of 20 years. The governing contracts provide that the franchise relationship is established in Miami and governed by Florida law, and call for payment of all required monthly fees and forwarding of all relevant notices to the Miami headquarters. The Miami headquarters sets policy and works directly with the franchisees in attempting to resolve major problems. Day-to-day monitoring of franchisees, however, is conducted through district offices that, in turn, report to the Miami headquarters. Appellee is a Michigan resident who, along with another Michigan resident, entered into a 20-year franchise contract with appellant to operate a restaurant in Michigan. Subsequently, when the restaurant's patronage declined, the franchisees fell behind in their monthly payments. After extended negotiations among the franchisees, the Michigan district office, and the Miami headquarters proved unsuccessful in solving the problem, headquarters terminated the franchise and ordered the franchisees to vacate the premises. They refused, and continued to operate the restaurant. Appellant then brought a diversity action in Federal District Court in Florida, alleging that the franchisees had breached their franchise obligations and requesting damages and injunctive relief. The franchisees claimed that, because they were Michigan residents and because appellant's claim did not "arise" within Florida, the District Court lacked personal jurisdiction over them. But the court held that the franchisees were subject to personal jurisdiction pursuant to Florida's long-arm statute, which extends jurisdiction to any person, whether or not a citizen or resident of the State, who breaches a contract in the State by failing to perform acts that the contract requires to be performed there. Thereafter, the court entered judgment against the franchisees on the merits. The Court of Appeals reversed, holding that "[j]urisdiction under these circumstances would offend the fundamental fairness which is the touchstone of due process."Held: The District Court's exercise of jurisdiction pursuant to Florida's long-arm statute did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 471 U. S. 471-487. Page 471 U. S. 463(a) A forum may assert specific jurisdiction over a nonresident defendant where an alleged injury arises out of or relates to actions by the defendant himself that are purposeful directed toward forum residents, and where jurisdiction would not otherwise offend "fair play and substantial justice." Jurisdiction in these circumstances may not be avoided merely because the defendant did not physically enter the forum. Pp. 471 U. S. 471-478.(b) An individual's contract with an out-of-state party cannot alone automatically establish sufficient minimum contacts in the other party's home forum. Instead, the prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing, must be evaluated to determine whether a defendant purposefully established minimum contacts within the forum. Pp. 471 U. S. 478-479.(c) Here, appellee established a substantial and continuing relationship with appellant's Miami headquarters, and received fair notice from the contract documents and the course of dealings that he might be subject to suit in Florida. The District Court found that appellee is an "experienced and sophisticated" businessman who did not act under economic duress or disadvantage imposed by appellant, and appellee has pointed to no other factors that would establish the unconstitutionality of Florida's assertion of jurisdiction. Pp. 471 U. S. 479-487.724 F.2d 1505, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and MARSHALL, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 471 U. S. 487. POWELL, J., took no part in the consideration or decision of the case.

1986_85-6461

JUSTICE WHITE delivered the opinion of the Court.The Ohio Code provides that"[e]very person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof by a preponderance of the evidence, for an affirmative defense, is upon the accused."Ohio Rev.Code Ann. § 2901.05(A)(1982). An affirmative defense is one involving"an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence."Ohio Rev.Code Ann. § 2901.05(C)(2)(1982). The Ohio courts have "long determined that self-defense is an affirmative defense," 21 Ohio St.3d 91, 93, 488 N.E.2d 166, 168 (1986), and that the defendant has the burden of proving it as required by § 2901.05(A).As defined by the trial court in its instructions in this case, the elements of self-defense that the defendant must prove are that (1) the defendant was not at fault in creating the situation giving rise to the argument; (2) the defendant had an honest belief that she was in imminent danger of death or great bodily harm, and that her only means of escape from such danger was in the use of such force; and (3) the defendant did not violate any duty to retreat or avoid danger. App. 19. The question before us is whether the Due Process Clause of the Fourteenth Amendment forbids placing the burden of proving self-defense on the defendant when she is charged by the State of Ohio with committing the crime of aggravated murder, which, as relevant to this case, is defined by the Revised Code of Ohio as "purposely, and with prior calculation and design, caus[ing] the death of another." Ohio Rev.Code Ann. § 2903.01 (1982).The facts of the case, taken from the opinions of the courts below, may be succinctly stated. On July 21, 1983, petitioner Earline Martin and her husband, Walter Martin, Page 480 U. S. 231 argued over grocery money. Petitioner claimed that her husband struck her in the head during the argument. Petitioner's version of what then transpired was that she went upstairs, put on a robe, and later came back down with her husband's gun, which she intended to dispose of. Her husband saw something in her hand and questioned her about it. He came at her, and she lost her head and fired the gun at him. Five or six shots were fired, three of them striking and killing Mr. Martin. She was charged with and tried for aggravated murder. She pleaded self-defense, and testified in her own defense. The judge charged the jury with respect to the elements of the crime and of self-defense, and rejected petitioner's Due Process Clause challenge to the charge placing on her the burden of proving self-defense. The jury found her guilty.Both the Ohio Court of Appeals and the Supreme Court of Ohio affirmed the conviction. Both rejected the constitutional challenge to the instruction requiring petitioner to prove self-defense. The latter court, relying upon our opinion in Patterson v. New York, 432 U. S. 197 (1977), concluded that the State was required to prove the three elements of aggravated murder, but that Patterson did not require it to disprove self-defense, which is a separate issue that did not require Mrs. Martin to disprove any element of the offense with which she was charged. The court said,"the state proved beyond a reasonable doubt that appellant purposely, and with prior calculation and design, caused the death of her husband. Appellant did not dispute the existence of these elements, but rather sought to justify her actions on grounds she acted in self-defense."21 Ohio St.3d at 94, 488 N.E.2d at 168. There was thus no infirmity in her conviction. We granted certiorari, 475 U.S. 1119 (1986), and affirm the decision of the Supreme Court of Ohio.In re Winship, 397 U. S. 358, 397 U. S. 364 (1970), declared that the Due Process Clause"protects the accused against conviction except upon proof beyond a reasonable doubt of every fact Page 480 U. S. 232 necessary to constitute the crime with which he is charged."A few years later, we held that Winship's mandate was fully satisfied where the State of New York had proved beyond reasonable doubt each of the elements of murder, but placed on the defendant the burden of proving the affirmative defense of extreme emotional disturbance, which, if proved, would have reduced the crime from murder to manslaughter. Patterson v. New York, supra. We there emphasized the preeminent role of the States in preventing and dealing with crime, and the reluctance of the Court to disturb a State's decision with respect to the definition of criminal conduct and the procedures by which the criminal laws are to be enforced in the courts, including the burden of producing evidence and allocating the burden of persuasion. 432 U.S. at 432 U. S. 201-202. New York had the authority to define murder as the intentional killing of another person. It had chosen, however, to reduce the crime to manslaughter if the defendant proved by a preponderance of the evidence that he had acted under the influence of extreme emotional distress. To convict of murder, the jury was required to find beyond a reasonable doubt, based on all the evidence, including that related to the defendant's mental state at the time of the crime, each of the elements of murder, and also to conclude that the defendant had not proved his affirmative defense. The jury convicted Patterson, and we held there was no violation of the Fourteenth Amendment as construed in Winship. Referring to Leland v. Oregon, 343 U. S. 790 (1952), and Rivera v. Delaware, 429 U. S. 877 (1976), we added that New York "did no more than Leland and Rivera permitted it to do without violating the Due Process Clause," and declined to reconsider those cases. 432 U.S. at 432 U. S. 206, 432 U. S. 207. It was also observed that"the fact that a majority of the States have now assumed the burden of disproving affirmative defenses -- for whatever reasons -- [does not] mean that those States that strike a different balance are in violation of the Constitution."Id. at 432 U. S. 211. Page 480 U. S. 233As in Patterson, the jury was here instructed that, to convict, it must find, in light of all the evidence, that each of the elements of the crime of aggravated murder has been proved by the State beyond reasonable doubt, and that the burden of proof with respect to these elements did not shift. To find guilt, the jury had to be convinced that none of the evidence, whether offered by the State or by Martin in connection with her plea of self-defense, raised a reasonable doubt that Martin had killed her husband, that she had the specific purpose and intent to cause his death, or that she had done so with prior calculation and design. It was also told, however, that it could acquit if it found by a preponderance of the evidence that Martin had not precipitated the confrontation, that she had an honest belief that she was in imminent danger of death or great bodily harm, and that she had satisfied any duty to retreat or avoid danger. The jury convicted Martin.We agree with the State and its Supreme Court that this conviction did not violate the Due Process Clause. The State did not exceed its authority in defining the crime of murder as purposely causing the death of another with prior calculation or design. It did not seek to shift to Martin the burden of proving any of those elements, and the jury's verdict reflects that none of her self-defense evidence raised a reasonable doubt about the State's proof that she purposefully killed with prior calculation and design. She nevertheless had the opportunity, under state law and the instructions given, to justify the killing and show herself to be blameless by proving that she acted in self-defense. The jury thought she had failed to do so, and Ohio is as entitled to punish Martin as one guilty of murder as New York was to punish Patterson.It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance Page 480 U. S. 234 standard. Such an instruction would relieve the State of its burden and plainly run afoul of Winship's mandate. 397 U.S. at 397 U. S. 364. The instructions in this case could be clearer in this respect, but, when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State's proof of the elements of the crime.We are thus not moved by assertions that the elements of aggravated murder and self-defense overlap in the sense that evidence to prove the latter will often tend to negate the former. It may be that most encounters in which self-defense is claimed arise suddenly, and involve no prior plan or specific purpose to take life. In those cases, evidence offered to support the defense may negate a purposeful killing by prior calculation and design, but Ohio does not shift to the defendant the burden of disproving any element of the state's case. When the prosecution has made out a prima facie case and survives a motion to acquit, the jury may nevertheless not convict if the evidence offered by the defendant raises any reasonable doubt about the existence of any fact necessary for the finding of guilt. Evidence creating a reasonable doubt could easily fall far short of proving self-defense by a preponderance of the evidence. Of course, if such doubt is not raised in the jury's mind and each juror is convinced that the defendant purposely and with prior calculation and design took life, the killing will still be excused if the elements of the defense are satisfactorily established. We note here, but need not rely on, the observation of the Supreme Court of Ohio that"[a]ppellant did not dispute the existence of [the elements of aggravated murder], but rather sought to justify her actions on grounds she acted in self-defense."21 Ohio St.3d at 94, 488 N.E.2d at 168. * Page 480 U. S. 235Petitioner submits that there can be no conviction under Ohio law unless the defendant's conduct is unlawful, and that, because self-defense renders lawful what would otherwise be a crime, unlawfulness is an element of the offense that the state must prove by disproving self-defense. This argument founders on state law, for it has been rejected by the Ohio Supreme Court and by the Court of Appeals for the Sixth Circuit. White v. Arn, 788 F.2d 338, 346-347 (1986); State v. Morris, 8 Ohio App.3d 12, 18-19, 455 N.E.2d 1352, 1359-1360 (1982). It is true that unlawfulness is essential for conviction, but the Ohio courts hold that the unlawfulness in cases like this is the conduct satisfying the elements of aggravated murder -- an interpretation of state law that we are not in a position to dispute. The same is true of the claim that it is necessary to prove a "criminal" intent to convict for serious crimes, which cannot occur if self-defense is shown: the necessary mental state for aggravated murder under Ohio law is the specific purpose to take life pursuant to prior calculation and design. See White v. Arn, supra, at 346.As we noted in Patterson, the common law rule was that affirmative defenses, including self-defense, were matters for the defendant to prove."This was the rule when the Fifth Amendment was adopted, and it was the American rule when the Fourteenth Amendment was ratified."432 U.S. at 432 U. S. 202. Indeed, well into this century, a number of States followed the common law rule and required a defendant to shoulder the burden of proving that he acted in self-defense. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale Page 480 U. S. 236 L.J. 880, 882, and n. 10 (1968). We are aware that all but two of the States, Ohio and South Carolina, have abandoned the common law rule and require the prosecution to prove the absence of self-defense when it is properly raised by the defendant. But the question remains whether those States are in violation of the Constitution; and, as we observed in Patterson, that question is not answered by cataloging the practices of other States. We are no more convinced that the Ohio practice of requiring self-defense to be proved by the defendant is unconstitutional than we are that the Constitution requires the prosecution to prove the sanity of a defendant who pleads not guilty by reason of insanity. We have had the opportunity to depart from Leland v. Oregon, 343 U. S. 790 (1952), but have refused to do so. Rivera v. Delaware, 429 U. S. 877 (1976). These cases were important to the Patterson decision, and they, along with Patterson, are authority for our decision today.The judgment of the Ohio Supreme Court is accordinglyAffirmed

U.S. Supreme CourtMartin v. Ohio, 480 U.S. 228 (1987)Martin v. OhioNo. 85-6461Argued December 2, 1986Decided February 25, 1987480 U.S. 228SyllabusUnder the Ohio Revised Code (Code), the burden of proving the elements of a criminal offense is upon the prosecution, but, for an affirmative defense, the burden of proof by a preponderance of the evidence is placed on the accused. Self-defense is an affirmative defense under Ohio law, and therefore must be proved by the defendant. Petitioner was charged by Ohio with aggravated murder, which is defined as "purposely, and with prior calculation and design, causing the death of another." She pleaded self-defense, and testified that she had shot and killed her husband when he came at her following an argument during which he had struck her. As to the crime itself, the jury was instructed (1) that, to convict, it must find, in light of all the evidence, that each of the elements of aggravated murder was proved by the State beyond reasonable doubt, and that the burden of proof with respect to those elements did not shift; and (2) that, to find guilt, it must be convinced that none of the evidence, whether offered by the State or by petitioner in connection with her self-defense plea, raised a reasonable doubt that she had killed her husband, that she had the specific purpose and intent to cause his death, or that she had done so with prior calculation and design. However, as to self-defense, the jury was instructed that it could acquit if it found by a preponderance of the evidence that petitioner had proved (1) that she had not precipitated the confrontation with her husband; (2) that she honestly believed she was in imminent danger of death or great bodily harm and that her only means of escape was to use force; and (3) that she had satisfied any duty to retreat or avoid danger. The jury found her guilty, and both the Ohio Court of Appeals and Supreme Court affirmed the conviction, rejecting petitioner's Due Process Clause challenge, which was based on the charge's placing on her the self-defense burden of proof. In reaching its decision, the State Supreme Court relied on Patterson v. New York, 432 U. S. 197.Held:1. Neither Ohio law nor the above instructions violate the Due Process Clause of the Fourteenth Amendment by shifting to petitioner the State's burden of proving the elements of the crime. The instructions, when read as a whole, do not improperly suggest that self-defense evidence could not be considered in determining whether there was reasonable doubt about the sufficiency of the State's proof of the crime's elements. Page 480 U. S. 229 Furthermore, simply because evidence offered to support self-defense might negate a purposeful killing by prior calculation and design does not mean that elements of the crime and self-defense impermissibly overlap, since evidence creating a reasonable doubt about any fact necessary for a finding of guilt could easily fall far short of proving self-defense by a preponderance of the evidence, but, on the other hand, a killing will be excused if self-defense is satisfactorily established even if there is no reasonable doubt in the jury's mind that the defendant is guilty. Pp. 480 U. S. 233-234.2. It is not a violation of the Due Process Clause for Ohio to place the burden of proving self-defense on a defendant charged with committing aggravated murder. There is no merit to petitioner's argument that it is necessary under Ohio law for the State to disprove self-defense, since both unlawfulness and criminal intent are elements of serious offenses, while self-defense renders lawful that which would otherwise be a crime, and negates a showing of criminal intent. The Court will follow Ohio courts that have rejected this argument, holding that unlawfulness in such cases is the conduct satisfying the elements of aggravated murder, and that the necessary mental state for this crime is the specific purpose to take life pursuant to prior calculation and design. Furthermore, the mere fact that all but two States have abandoned the common law rule that affirmative defenses, including self-defense, must be proved by the defendant does not render that rule unconstitutional. The Court will follow Patterson and other of its decisions which allowed States to fashion their own affirmative defense burden of proof rules. Pp. 480 U. S. 235-23621 Ohio St.3d 91, 488 N.E.2d 166, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, and SCALIA, JJ., joined. POWELL, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, and in Parts I and III of which BLACKMUN, J., joined, post, p. 480 U. S. 236. Page 480 U. S. 230

1958_94

MR. JUSTICE DOUGLAS delivered the opinion of the Court.We are asked in this case to hold that an Illinois statute [Footnote 1] requiring the use of a certain type of rear fender Page 359 U. S. 522 mudguard on trucks and trailers operated on the highways of that State conflicts with the Commerce Clause of the Constitution. The statutory specification for this type of mudguard provides that the guard shall contour the rear wheel, with the inside surface being relatively parallel to the top 90 degrees of the rear 180 degrees of the whole surface. [Footnote 2] The surface of the guard must extend downward to within 10 inches from the ground when the truck is loaded to its maximum legal capacity. The guards must be wide enough to cover the width of the protected tire, must be installed not more than 6 inches from the tire surface when the vehicle is loaded Page 359 U. S. 523 to maximum capacity, and must have a lip or flange on its outer edge of not less than 2 inches. [Footnote 3]Appellees, interstate motor carriers holding certificates from the Interstate Commerce Commission, challenged the constitutionality of the Illinois Act. A specially constituted three-judge District Court concluded that it unduly and unreasonably burdened and obstructed interstate commerce because it made the conventional or straight mudflap, which is legal in at least 45 States, illegal in Illinois, and because the statute, taken together with a Rule of the Arkansas Commerce Commission [Footnote 4] requiring straight mudflaps, rendered the use of the same motor vehicle equipment in both States impossible. The statute was declared to be violative of the Commerce Clause, and appellants were enjoined from enforcing it. 159 F. Supp. 385. An appeal was taken, and we noted probable jurisdiction. 358 U.S. 808.The power of the State to regulate the use of its highways is broad and pervasive. We have recognized the peculiarly local nature of this subject of safety, and have upheld state statutes applicable alike to interstate and intrastate commerce, despite the fact that they may have an impact on interstate commerce. South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177; Maurer v. Hamilton, 309 U. S. 598; Sproles v. Binford, 286 U. S. 374. The regulation of highways"is akin to quarantine Page 359 U. S. 524 measures, game laws, and like local regulations of rivers, harbors, piers, and docks, with respect to which the state has exceptional scope for the exercise of its regulatory power, and which, Congress not acting, have been sustained even though they materially interfere with interstate commerce."Southern Pacific Co. v. Arizona, 325 U. S. 761, 325 U. S. 783.These safety measures carry a strong presumption of validity when challenged in court. If there are alternative ways of solving a problem, we do not sit to determine which of them is best suited to achieve a valid state objective. Policy decisions are for the state legislature, absent federal entry into the field. [Footnote 5] Unless we can conclude on the whole record that"the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it"(Southern Pacific Co. v. Arizona, supra, pp. 325 U. S. 775-776) we must uphold the statute.The District Court found that,"since it is impossible for a carrier operating in interstate commerce to determine which of its equipment will be used in a particular area, or on a particular day, or days, carriers operating into or through Illinois . . . will be required to equip all their trailers in accordance with the requirements of the Illinois Splash Guard statute."With two possible exceptions, Page 359 U. S. 525 the mudflaps required in those States which have mudguard regulations would not meet the standards required by the Illinois statute. The cost of installing the contour mudguards is $30 or more per vehicle. The District Court found that the initial cost of installing those mudguards on all the trucks owned by the appellees ranged from $4,500 to $45,840. There was also evidence in the record to indicate that the cost of maintenance and replacement of these guards is substantial.Illinois introduced evidence seeking to establish that contour mudguards had a decided safety factor in that they prevented the throwing of debris into the faces of drivers of passing cars and into the windshields of a following vehicle. But the District Court, in its opinion, stated that it was"conclusively shown that the contour mud flap possesses no advantages over the conventional or straight mud flap previously required in Illinois and presently required in most of the states"(159 F.Supp. at 388), and that "there is rather convincing testimony that use of the contour flap creates hazards previously unknown to those using the highways." Id. at 390. These hazards were found to be occasioned by the fact that this new type of mudguard tended to cause an accumulation of heat in the brake drum, thus decreasing the effectiveness of brakes, and by the fact that they were susceptible of being hit and bumped when the trucks were backed up, and of falling off on the highway.These findings on cost and on safety are not the end of our problem. Local regulation of the weight of trucks using the highways upheld in Sproles v. Binford, supra, also involved increased financial burdens for interstate carriers. State control of the width and weight of motor trucks and trailers sustained in South Carolina Highway Dept. v. Barnwell Bros., supra, involved nice questions of judgment concerning the need of those regulations so far as the issue of safety was concerned. That case also presented Page 359 U. S. 526 the problem whether interstate motor carriers, who were required to replace all equipment or keep out of the State, suffered an unconstitutional restraint on interstate commerce. The matter of safety was said to be one essentially for the legislative judgment, and the burden of redesigning or replacing equipment was said to be a proper price to exact from interstate and intrastate motor carriers alike. And the same conclusion was reached in Maurer v. Hamilton, supra, where a state law prohibited any motor carrier from carrying any other vehicle above the cab of the carrier vehicle or over the head of the operator of that vehicle. Cost taken into consideration with other factors might be relevant in some cases to the issue of burden on commerce. But it has assumed no such proportions here. If we had here only a question whether the cost of adjusting an interstate operation to these new local safety regulations prescribed by Illinois unduly burdened interstate commerce, we would have to sustain the law under the authority of the Sproles, Barnwell, and Maurer cases. The same result would obtain if we had to resolve the much discussed issues of safety presented in this case.This case presents a different issue. The equipment in the Sproles, Barnwell, and Maurer cases could pass muster in any State, so far as the records in those cases reveal. We were not faced there with the question whether one State could prescribe standards for interstate carriers that would conflict with the standards of another State, making it necessary, say, for an interstate carrier to shift its cargo to differently designed vehicles once another state line was reached. We had a related problem in Southern Pacific Co. v. Arizona, supra, where the Court invalidated a statute of Arizona prescribing a maximum length of 70 cars for freight trains moving through that State. More closely in point is Morgan v. Virginia, 328 U. S. 373, where a local law required a reseating of passengers on interstate Page 359 U. S. 527 busses entering Virginia in order to comply with a local segregation law. Diverse seating arrangements for people of different races imposed by several States interfered, we concluded, with "the need for national uniformity in the regulations for interstate travel." Id. at 328 U. S. 386. Those cases indicate the dimensions of our present problem.An order of the Arkansas Commerce Commission, already mentioned, [Footnote 6] requires that trailers operating in that State be equipped with straight or conventional mudflaps. Vehicles equipped to meet the standards of the Illinois statute would not comply with Arkansas standards, and vice versa. Thus, if a trailer is to be operated in both States, mudguards would have to be interchanged, causing a significant delay in an operation where prompt movement may be of the essence. It was found that from two to four hours of labor are required to install or remove a contour mudguard. Moreover, the contour guard is attached to the trailer by welding, and if the trailer is conveying a cargo of explosives (e.g., for the United States Government), it would be exceedingly dangerous to attempt to weld on a contour mudguard without unloading the trailer.It was also found that the Illinois statute seriously interferes with the "interline" operations of motor carriers -- that is to say, with the interchanging of trailers between an originating carrier and another carrier when the latter serves an area not served by the former. These "interline" operations provide a speedy through service for the shipper. Interlining contemplates the physical transfer of the entire trailer; there is no unloading and reloading of the cargo. The interlining process is particularly vital in connection with shipment of perishables, which would spoil if unloaded before reaching their destination, or with the movement of explosives carried Page 359 U. S. 528 under seal. Of course, if the originating carrier never operated in Illinois, it would not be expected to equip its trailers with contour mudguards. Yet if an interchanged trailer of that carrier were hauled to or through Illinois, the statute would require that it contain contour guards. Since carriers which operate in and through Illinois cannot compel the originating carriers to equip their trailers with contour guards, they may be forced to cease interlining with those who do not meet the Illinois requirements. Over 60 percent of the business of 5 of the 6 plaintiffs is interline traffic. For the other, it constitutes 30 percent. All of the plaintiffs operate extensively in interstate commerce, and the annual mileage in Illinois of none of them exceeds 7 percent of total mileage.This, in summary, is the rather massive showing of burden on interstate commerce which appellees made at the hearing.Appellants did not attempt to rebut the appellees' showing that the statute in question severely burdens interstate commerce. Appellants' showing was aimed at establishing that contour mudguards prevented the throwing of debris into the faces of drivers of passing cars and into the windshields of a following vehicle. They concluded that, because the Illinois statute is a reasonable exercise of the police power, a federal court is precluded from weighing the relative merits of the contour mudguard against any other kind of mudguard, and must sustain the validity of the statute notwithstanding the extent of the burden it imposes on interstate commerce. They rely in the main on South Carolina Highway Dept. v. Barnwell Bros., supra. There is language in that opinion which, read in isolation from such later decisions as Southern Pacific Co. v. Arizona, supra, and Morgan v. Virginia, supra, would suggest that no showing of burden on interstate commerce is sufficient to invalidate local Page 359 U. S. 529 safety regulations in absence of some element of discrimination against interstate commerce.The various exercises by the States of their police power stand, however, on an equal footing. All are entitled to the same presumption of validity when challenged under the Due Process Clause of the Fourteenth Amendment. Lincoln Union v. Northwestern Co., 335 U. S. 525; Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421; Williamson v. Lee Optical Co., 348 U. S. 483. Similarly, the various state regulatory statutes are of equal dignity when measured against the Commerce Clause. Local regulations which would pass muster under the Due Process Clause might nonetheless fail to survive other challenges to constitutionality that bring the Supremacy Clause into play. Like any local law that conflicts with federal regulatory measures (California Comm'n v. United States, 355 U. S. 534; Service Storage & Transfer Co. v. Virginia, 359 U. S. 171), state regulations that run afoul of the policy of free trade reflected in the Commerce Clause must also bow.This is one of those cases -- few in number -- where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce. This conclusion is especially underlined by the deleterious effect which the Illinois law will have on the "interline" operation of interstate motor carriers. The conflict between the Arkansas regulation and the Illinois regulation also suggests that this regulation of mudguards is not one of those matters "admitting of diversity of treatment, according to the special requirements of local conditions," to use the words of Chief Justice Hughes in Sproles v. Binford, supra, at 286 U. S. 390. A State which insists on a design out of line with the requirements of almost all the other States may sometimes place a great burden of delay and inconvenience on those interstate motor carriers Page 359 U. S. 530 entering or crossing its territory. Such a new safety device -- out of line with the requirements of the other States -- may be so compelling that the innovating State need not be the one to give way. But the present showing -- balanced against the clear burden on commerce -- is far too inconclusive to make this mudguard meet that test. We deal not with absolutes, but with questions of degree. The state legislatures plainly have great leeway in providing safety regulations for all vehicles -- interstate as well as local. Our decisions so hold. Yet the heavy burden which the Illinois mudguard law places on the interstate movement of trucks and trailers seems to us to pass the permissible limits even for safety regulations.Affirmed

U.S. Supreme CourtBibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)Bibb v. Navajo Freight Lines, Inc.No. 94Argued March 30-31, 1959Decided May 25, 1959359 U.S. 520SyllabusAs applied to interstate motor carriers operating under certificates of public convenience and necessity issued by the Interstate Commerce Commission, the Illinois statute here involved which requires trucks and trailers operating on that State's highways to be equipped with a specified type of rear fender mudguard which would be illegal in Arkansas, which is different from those permitted in at least 45 other States, and which would seriously interfere with the "interline" operations of motor carriers, is invalid because it unduly and unreasonably burdens interstate commerce in violation of Art. I, § 8 of the Constitution. Pp. 359 U. S. 521-530.(a) Even state safety regulations must yield when they run afoul of the policy of free trade reflected in the Commerce Clause. Pp. 359 U. S. 523-524, 359 U. S. 528-529.(b) Interchanging mudguards on trucks and trailers at the border of Illinois is a time-consuming task, and the necessity to use welding might mean that some trucks or trailers would have to be unloaded and loaded again -- all of which adds up to a serious burden on interstate commerce not justified by a compelling need for this new safety measure. Pp. 359 U. S. 527-528.(c) The record in this case shows that this is one of those exceptional cases where a state safety regulation in the exercise of the police power places such a heavy burden on interstate commerce, uncompensated by compelling advantages of safety, that it violates the Commerce Clause. Pp. 359 U. S. 529-530.159 F. Supp. 385, affirmed. Page 359 U. S. 521

1984_84-262

JUSTICE STEVENS delivered the opinion of the Court.In 1928, Mountain States Telephone and Telegraph Company purchased an easement from the Pueblo of Santa Ana for a telephone line. Mountain States contends that the conveyance of this easement was valid under § 17 of the Pueblo Lands Act of 1924, 43 Stat. 641, because it was "first approved by the Secretary of the Interior." [Footnote 1] The Pueblo contends that § 17 only authorizes such transfers "as may hereafter be provided by Congress," and that Congress never provided legislation authorizing the conveyance of Pueblo lands with the approval of the Secretary. Both constructions find some support in the language of § 17. Page 472 U. S. 240ICongress enacted the 1924 legislation"to provide for the final adjudication and settlement of a very complicated and difficult series of conflicting titles affecting lands claimed by the Pueblo Indians of New Mexico. [Footnote 2]"The Committee Reports review the unique and "interesting history of the Pueblo Indians," [Footnote 3] and explain why special remedial legislation was necessary."These Indians were found by Coronado and the first Spanish explorers in 1541, many of them residing in villages and occupying the same lands that the Pueblo Indians now occupy. [Footnote 4]"From the earliest days, the Spanish conquerors recognized the Pueblos' rights in the lands that they still occupy, [Footnote 5] and their ownership of these lands was confirmed in land grants from the King of Spain. Later, the independent Government of Mexico extended limited civil and political rights to the Pueblo Indians, and confirmed them in the ownership of their lands.The United States acquired the territory that is now New Mexico in 1848 under the Treaty of Guadalupe-Hidalgo. [Footnote 6] During the period between 1848 and 1910, when New Mexico became a State, inhabitants of that territory -- and members of the bar who advised them -- generally believed that the Pueblo Indians had the same unrestricted power to dispose of their lands as non-Indians whose title had originated in Spanish grants. This view was supported by decisions of the Page 472 U. S. 241 Supreme Court of the Territory of New Mexico, [Footnote 7] and by this Court's square holding in United States v. Joseph, 94 U. S. 614 (1877), [Footnote 8] that the Pueblo Indians were not an "Indian tribe" protected by the Nonintercourse Act. [Footnote 9] As a result, it Page 472 U. S. 242 was thought that the Pueblo Indians could convey good title to their lands notwithstanding the Act's prohibition of any "purchase, grant, lease, or other conveyance of lands . . . from any . . . tribe of Indians." 4 Stat. 730, 25 U.S.C. § 177.The prevailing opinion concerning the unique status of the Pueblo Indians was drawn into question as a result of the attempt by federal authorities to regulate the liquor trade with the Pueblos. They originally brought charges under an 1897 criminal statute prohibiting the sale of liquor to any "Indian." [Footnote 10] Relying on Joseph, however, the Territorial Supreme Court held, in 1907, that the Pueblos were not "Indians" within the meaning of the statute. [Footnote 11] In response, the New Mexico Enabling Act of 1910 expressly required that the new State's Constitution prohibit"the introduction of liquors into Indian country, which term shall also include all lands now owned or occupied by the Pueblo Indians of New Mexico. [Footnote 12]"In United States v. Sandoval, 231 U. S. 28 (1913), the Court noted that whatever doubts there previously were about the applicability of the Indian liquor statute to the Pueblos, "Congress, evidently wishing to make sure of a different result in the future, expressly declared" in the Enabling Act that "it should include them." 231 U.S. at 231 U. S. 38.The narrow question decided in the Sandoval case was that the dependent status of the Pueblo Indians was such that Congress could expressly prohibit the introduction of intoxicating liquors into their lands under its power "To regulate Commerce . . . with the Indian Tribes." U.S.Const., Art. I, § 8, cl. 3. In reaching that decision, however, the Court Page 472 U. S. 243 rejected the factual premises that had supported its judgment in Joseph, [Footnote 13] and suggested that"the observations there made respecting the Pueblos were evidently based upon statements in the opinion of the territorial court, then under review, which are at variance with other recognized sources of information, now available, and with the long-continued action of the legislative and executive departments."231 U.S. at 231 U. S. 49. The Court's disapproval of Joseph strongly implied that the restraints on alienation contained in the Nonintercourse Act -- as well as the liquor statute -- might apply to the Pueblos. As a result, the validity of all non-Indian claims to Pueblo lands was placed in serious doubt.Relying on the rule established in Joseph, 3,000 non-Indians had acquired putative ownership of parcels of real estate located inside the boundaries of the Pueblo land grants. [Footnote 14] The Court's decision in Sandoval cast a pall over all these titles by suggesting that the Pueblos had been wrongfully dispossessed of their lands, and that they might have the power to eject the non-Indian settlers. [Footnote 15] After Page 472 U. S. 244 conducting extensive hearings on the problem, [Footnote 16] Congress drafted and enacted the Pueblo Lands Act of 1924. The stated purpose of the Act was to "settle the complicated questions of title and to secure for the Indians all of the lands to which they are equitably entitled." S.Rep. No. 492, 68th Cong., 1st Sess., 5 (1924).IIUnder the Act, a Public Lands Board, composed of the Secretary of the Interior, the Attorney General, and a third person to be appointed by the President of the United States, was established to determine conflicting claims to the Pueblo lands. § 2, 43 Stat. 636. The Board was instructed to issue a report setting forth the metes and bounds of the lands of each Pueblo that were found not to be extinguished under the rules established in the Act. Ibid. Continuous, open, and notorious adverse possession by non-Indian claimants, coupled with the payment of taxes from 1889 to the date of enactment in 1924, or from 1902 to 1924 if possession was under color of title, sufficed to extinguish a Pueblo's title. § 4. [Footnote 17] Page 472 U. S. 245 The Board's reports were to be implemented by suits to quiet title in the United States District Court for the District of New Mexico. §§ 1, 3.The Act also directed the Board to award the Pueblos compensation for the value of any rights that were extinguished if they "could have been at any time recovered for said Indians by the United States by seasonable prosecution." § 6. Settlers who had occupied their lands in good faith, but whose claims were rejected, might receive compensation for the value of any improvements they had erected on their lands, or for the full value of their lands if they had purchased those lands and entered them before 1912 under a deed purporting to convey title. §§ 7, 15.After the Board determined who owned each parcel of land, the Act foresaw that some consolidation of each Pueblo's land holdings might occur. The Board was directed to identify any parcels adjacent to a Pueblo settlement that should be purchased from non-Indian owners for transfer to the Pueblo. § 8. In addition, § 16 of the Act authorized the Secretary of the Interior, with consent of the Pueblo, to sell any lands owned by the Pueblo that were"situate among lands adjudicated or otherwise determined in favor of non-Indian Page 472 U. S. 246 claimants and apart from the main body of the Indian land. [Footnote 18]"The foregoing provisions of the Pueblo Lands Act were all designed to settle the consequences of past transactions. In contrast, the section we must construe in this case -- § 17 -- was entirely concerned with transactions in Pueblo lands that might occur in the future. It provides:"No right, title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has not been extinguished as hereinbefore determined shall hereafter be acquired or initiated by virtue of the laws of the State of New Mexico, or in any other manner except as may hereafter be provided by Congress, and no sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior."43 Stat. 641-642 (emphasis added). Page 472 U. S. 247 The question to be decided here is whether the second clause -- the language following the word "and" -- indicates that a Pueblo may convey good title to its lands with the approval of the Secretary of the Interior.IIIIn 1905, Mountain States' predecessor allegedly acquired a right-of-way and constructed a telephone line across land owned by the Pueblo of Santa Ana. App. 8. Presumably, the 1905 conveyance would have been invalid under the Nonintercourse Act. See n 17, supra. In all events, in 1927, the United States, acting as guardian for the Pueblo of Santa Ana, brought an action in the United States District Court for the District of New Mexico to quiet title to the lands of that Pueblo.While the litigation was pending, the Pueblo entered into a right-of-way agreement with Mountain States granting it an easement "to construct, maintain and operate a telephone and telegraph pole line" on the land now in dispute. App. 39. [Footnote 19] The agreement was forwarded to the Secretary of the Interior by the Bureau of Indian Affairs with the recommendation that it be approved under § 17. Id. at 181-183. This agreement was approved, and the approval was received, and endorsed on the right-of-way agreement. Id. at 43. On the Government's motion, [Footnote 20] id. at 36, the District Court thereafter dismissed Mountain States from the quiet title Page 472 U. S. 248 action on the ground that it had"secured good and sufficient title to the right of way and premises in controversy . . . in accordance with the provisions of Section 17 of the Pueblo Lands Act. [Footnote 21]"Mountain States removed the telephone line in 1980. On October 10 of that year, the Pueblo brought this action claiming trespass damages for the period prior to the removal of the line. The District Court granted partial summary judgment for the Pueblo on the issue of liability, holding that the grant of the right-of-way in 1928 was not authorized by § 17. Id. at 86-92.The Court of Appeals allowed an interlocutory appeal under 28 U.S.C. § 1292(b), and affirmed. 734 F.2d. 1402 (CA10 1984). The court held that Pueblo lands were protected by the Nonintercourse Act prior to 1924, and that § 17 of the Pueblo Lands Act did not authorize any conveyance of such lands. It reasoned:"The two clauses of § 17 of the Pueblo Lands Act are joined by the conjunctive 'and.' To us that means exactly what it says. No alienation of the Pueblo lands shall be made 'except as may hereafter be provided by Congress' and no such conveyance 'shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior.' Two things are required. First, the lands must be conveyed in a manner provided by Congress. Second, the Secretary of the Interior must approve. As to the first, at the time of the agreement between the Pueblo and [Mountain States], Congress had provided nothing. Hence, the first condition was not met. The fact that Congress had provided Page 472 U. S. 249 no method makes the approval of the Secretary meaningless. The operation of the second clause depends on compliance with the first clause."Id. at 1406. The Court of Appeals considered and rejected Mountain States' reliance on the legislative history of the 1924 Act and its construction by the Secretary of the Interior.Our concern that the Court of Appeals' interpretation of the Act might have a significant effect on other titles acquired pursuant to § 17 led us to grant certiorari. 469 U.S. 879 (1984). We now reverse.IVThe word "hereafter" in the first clause of § 17 supports the Court of Appeals' interpretation of the Act. Read literally, the statute seems to state unequivocally that no interest in Pueblo lands can be acquired "except as may hereafter be provided by Congress" -- or, stated somewhat differently, until Congress enacts yet another statute concerning the lands of the Pueblo Indians of New Mexico.The problem with this construction of the statute is that the requirement of the Secretary's approval in the second clause of § 17 would be a nullity until Congress acts. Even if a later Congress did enact another statute authorizing the alienation of Pueblo lands, that Congress would be entirely free to accept or reject that requirement. Neither the Pueblo nor the Court of Appeals has offered any plausible reason for attributing this futile design to the 68th Congress. In light of "the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative," Colautti v. Frankln, 439 U. S. 379, 439 U. S. 392 (1979), the second clause of § 17 cannot be read as limiting the power of Congress to legislate in the "hereafter." [Footnote 22] Page 472 U. S. 250The Court of Appeals' literal interpretation of the first clause of § 17 would also nullify the effect of § 16. See n 18, supra. The design of the Pueblo Lands Act indicates that Congress thought some consolidation of Pueblo land holdings might be desirable in connection with the claims settlement program to be promptly implemented by the Pueblo Lands Board. See supra at 472 U. S. 245-246. To this end, § 16 purports to authorize conveyances of Pueblo lands with the consent of the governing authorities of the Pueblo and the approval of the Secretary of the Interior. If the Court of Appeals' literal construction of § 17 were accepted, the consolidation of properties foreseen by § 16 could have been implemented only as Congress might thereafter provide. It is inconceivable that Congress would have inserted § 16 in the comprehensive settlement scheme provided in the Act if it did not expect it to be effective forthwith.Finally, the practical effect of the Court of Appeals' interpretation is to apply the requirements of the Nonintercourse Act to voluntary transfers of Pueblo lands. In 1924, Congress logically could have adopted any of three approaches to voluntary transfers. It could have left the matter to be decided by the courts; applied the rule of the Nonintercourse Act; or adopted a new rule of law. A review of the structure of the statute convinces us that Congress followed the last course.In arguing that § 17 simply extended the provisions of the Nonintercourse Act to the Pueblos, the Pueblo relies on language in the first clause of the section. However, it is the second -- not the first -- clause of § 17 that closely resembles the language and structure of the Nonintercourse Act:Section 17:"[N]o sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any Page 472 U. S. 251 pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior."Nonintercourse Act:"[N]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."The language is slightly -- but significantly -- altered to provide for approval by the Secretary of the Interior, instead of ratification by Congress.In any case, if Congress had intended to apply the Nonintercourse Act to these lands, it is difficult to understand why it did not say so in simple language. When Congress considered it appropriate in the Act to extend generally applicable Indian statutes to the Pueblos, it did so with concise language directed to that end. [Footnote 23] Indeed, in view of subsequent events, Congress might have achieved that result simply by omitting § 17 from the Act and leaving the matter to the courts. See n 17, supra. In our view, it is much more likely that Congress intended to authorize a different procedure for Pueblo lands in view of their unique history -- a history that is discussed at some length in the Committee Reports. [Footnote 24] Page 472 U. S. 252VThere is another reading of the statute that better harmonizes the two clauses of § 17 with the structure of the entire Act and with "its contemporary legal context." [Footnote 25] After the Joseph decision, it was generally assumed that questions of title to Pueblo lands were to be answered by reference to New Mexico law, rather than to federal law. In 1924, Congress was legislating without the benefit of a clear holding from this Court that the Pueblos had been completely assimilated to the status of Indian tribes whose land titles were protected by federal law. Sandoval had established that the Indian liquor law applied to the Tribe, and had strongly implied that the Nonintercourse Act would also apply; but Congress surely wanted to make clear that state law, for the future, was entirely preempted in this area, and that Congress had assumed complete jurisdiction over these lands. The first clause of § 17 is fairly read as a flat prohibition against reliance on New Mexico law in connection with future transactions involving Pueblo lands. After 1924, alienation of those lands, voluntary or involuntary, was only to occur if sanctioned by federal law.While the first clause of § 17 refers generally to the acquisition of any "right, title, or interest in . . . lands of the Pueblo Indians," the second clause refers to any "sale, grant, lease . . . or other conveyance of lands." This language plainly refers to transfers of land freely made by a Pueblo. The second clause of § 17 is logically interpreted as providing a firm command, as a matter of federal law, that no future conveyance should be valid without the approval of the Secretary of the Interior. The language suggests that Congress assumed that the Secretary of the Interior could adequately protect the interests of the Pueblos in connection with future land transactions. This construction is supported by the language of § 16 allowing for the consolidation of Pueblo lands Page 472 U. S. 253 with the consent of the Pueblo and if "the Secretary of the Interior deems it to be for the best interest of the Indians." [Footnote 26]This interpretation of § 17 gives both clauses a meaning that is consistent with the remainder of the statute and with the historical situation of the Pueblos. [Footnote 27] It is consistent with the limited legislative history available, [Footnote 28] and is supported by Page 472 U. S. 254 the contemporaneous opinion of the Secretary of the Interior and the Federal District Judge who placed a stamp of approval on this transaction and numerous others in the years following the enactment of the Pueblo Lands Act in 1924. [Footnote 29] The uniform contemporaneous view of the Executive Officer responsible for administering the statute and the District Court with exclusive jurisdiction over the quiet title actions brought under the Pueblo Lands Act [Footnote 30] "is entitled to very great respect." [Footnote 31] These individuals were far more likely to Page 472 U. S. 255 have had an understanding of the actual intent of Congress than judges who must consider the legal implications of the transaction over half a century after it occurred.The judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtMountain States Tel. v. Santana Ana, 472 U.S. 237 (1985)Mountain States Telephone & Telegraph Co.v. Pueblo of Santa AnaNo. 84-262Argued February 20, 1985Decided June 10, 1985472 U.S. 237SyllabusThe Pueblo Lands Act of 1924 was enacted to adjudicate and settle conflicting titles affecting lands claimed by respondent Pueblo Indian Tribe. Section 17 of the Act provides:"No right, title, or interest in or to the lands of the Pueblo Indians of New Mexico to which their title has not been extinguished as hereinbefore determined shall hereafter be acquired or initiated by virtue of the laws of the State of New Mexico, or in any other manner except as may hereafter be provided by Congress, and no sale, grant, lease of any character, or other conveyance of lands, or any title or claim thereto, made by any pueblo as a community, or any Pueblo Indian living in a community of Pueblo Indians, in the State of New Mexico, shall be of any validity in law or in equity unless the same be first approved by the Secretary of the Interior."In 1928, while an action by the United States, as guardian for respondent, to quiet title to respondent's lands was pending in Federal District Court, the Secretary of the Interior (Secretary) approved an agreement between petitioner and respondent granting petitioner an easement for a telephone line on land owned by respondent. As a result, the District Court dismissed petitioner (whose predecessor had allegedly acquired a right-of-way) from the quiet title action on the ground that it had acquired a valid title to the easement. After petitioner removed the telephone line in 1980, respondent brought an action in Federal District Court, claiming trespass damages for the period prior to the removal of the line on the asserted ground that the 1928 conveyance was not authorized by § 17 because Congress had not enacted legislation approving it. The District Court granted partial summary judgment for respondent on the issue of liability, holding that the 1928 conveyance was not authorized by § 17. The Court of Appeals affirmed, holding that respondent's lands were protected by the Nonintercourse Act, which prohibits any purchase, grant, lease, or other conveyance of lands from any Indian tribe, and that § 17 did not authorize any conveyance of such lands. The court reasoned that, since the two clauses of § 17 are joined by the conjunctive "and," two things were required to make a conveyance of respondent's lands valid -- first, the lands must be conveyed in a manner provided Page 472 U. S. 238 by Congress and, second, the Secretary must approve -- and that, since Congress had provided nothing with respect to the 1928 agreement, the first requirement was not met, and hence the Secretary's approval was meaningless.Held: The conveyance of the easement was valid under § 17 of the Pueblo Lands Act. Pp. 472 U. S. 249-255.(a) While the word "hereafter" in the first clause of § 17 supports the Court of Appeals' interpretation of the Act, such interpretation renders the requirement of the Secretary's approval a nullity until Congress acts. In light of the canon of statutory construction that a statute should be interpreted so as not to render one part inoperative, the second clause of § 17 cannot be read as limiting Congress' power to legislate in the "hereafter." The Court of Appeals' interpretation of § 17 would also nullify the effect of § 16 of the Act, which authorizes the Secretary, with respondent's consent, to sell any of respondent's lands that are located among lands adjudicated or otherwise determined in favor of non-Indian claimants and apart from the main body of the Indian lands as part of the claim settlement program established by the Act. Moreover, the practical effect of the Court of Appeals' interpretation is to apply the requirement of the Nonintercourse Act to voluntary transfers of respondent's lands. A review of the structure of the Pueblo Lands Act leads to the conclusion that Congress, when it enacted that Act, rather than leaving the matter of voluntary transfers to be decided by the courts or applying the rule of the Nonintercourse Act, adopted a new rule of law in view of the unique history of respondent's lands. Pp. 472 U. S. 249-251.(b) To harmonize § 17's two clauses with the Act's entire structure and with "its contemporary legal context," the first clause should be read as a flat prohibition against reliance on New Mexico law in connection with future transactions involving respondent's lands, and to make voluntary or involuntary alienation of those lands after 1924 occur only if sanctioned by federal law. And the second clause should be interpreted as providing a firm command, as a matter of federal law, that no future conveyance should be valid without the Secretary's approval. This interpretation of § 17 gives both clauses a meaning that is consistent with the remainder of the Act, with respondent's historical situation, and with the legislative history, and is supported by the Secretary's contemporaneous opinion and by the District Judge who gave his stamp of approval to the transaction originally and other similar ones after enactment of the Pueblo Lands Act. Pp. 472 U. S. 252-255.734 F.2d 1402, reversed. Page 472 U. S. 239STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 472 U. S. 255. POWELL, J., took no part in the decision of the case.

1991_90-1029

or service can never be a relevant market contravenes cases of this Court indicating that one brand of a product can constitute a separate market in some instances. The proper market definition in this case can be determined only after a factual inquiry into the commercial realities faced by Kodak equipment owners. Pp. 481-482.(b) As to the second element of a § 2 claim, the willful use of monopoly power, respondents have presented evidence that Kodak took exclusionary action to maintain its parts monopoly and used its control over parts to strengthen its monopoly share of the service market. Thus, liability turns on whether valid business reasons can explain Kodak's actions. However, none of its asserted business justifications-a commitment to quality service, a need to control inventory costs, and a desire to prevent ISO's from free-riding on its capital investment-are sufficient to prove that it is entitled to a judgment as a matter of law. Pp. 482-486.903 F.2d 612, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, KENNEDY, and SOUTER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which O'CONNOR and THOMAS, JJ., joined, post, p. 486.Donn P. Pickett argued the cause for petitioner. With him on the briefs were Daniel M. Wall, Alfred C. Pfeiffer, Jr., and Jonathan W Romeyn.Assistant Attorney General Rill argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Deputy Solicitor General Wallace, Christopher J. Wright, Catherine G. O'Sullivan, and Robert B. Nicholson.James A. Hennefer argued the cause for respondents.With him on the brief were A. Kirk McKenzie, Douglas E. Rosenthal, Jonathan M. Jacobson, and Elinor R. Hoffmann. **Briefs of amici curiae urging reversal were filed for the Computer and Business Equipment Manufacturers Association by Simon Lazarus III; for Digital Equipment Corp. et al. by Kurt W Melchior, Robert A. Skitol, James A. Meyers, Marcia Howe Adams, Ivor Gary Armistead III, Ronald A. Stern, Stephen Wasinger, James W Olson, Garter G. Phillips, Ralph I. Miller, and Florinda J. Iascone; for the Motor Vehicle Manufacturers Association of the United States, Inc., by Thomas B. Leary, William H.454JUSTICE BLACKMUN delivered the opinion of the Court. This is yet another case that concerns the standard for summary judgment in an antitrust controversy. TheCrabtree, and Charles H. Lockwood II; and for the National Electrical Manufacturers Association by James S. Dittmar and James L. Messenger.Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Simon Karas, and Elizabeth H. Watts and Marc B. Bandman, Assistant Attorneys General, James H. Evans, Attorney General of Alabama, and Marc Givhan, Assistant Attorney General, Charles E. Cole, Attorney General of Alaska, and James Forbes, Assistant Attorney General, Grant Woods, Attorney General of Arizona, and Jeri K. Auther, Assistant Attorney General, Winston Bryant, Attorney General of Arkansas, and Royce Griffin, Deputy Attorney General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Sanford N. Gruskin, Assistant Attorney General, and Kathleen E. Foote, Deputy Attorney General, Richard Blumenthal, Attorney General of Connecticut, and Robert M. Langer, Assistant Attorney General, Robert A. Butterworth, Attorney General of Florida, and Jerome W Hoffman, Assistant Attorney General, Warren Price III, Attorney General of Hawaii, Robert A. Marks, Supervising Deputy Attorney General, and Ted Clause, Deputy Attorney General, Larry EchoHawk, Attorney General of Idaho, Roland W Burris, Attorney General of Illinois, Rosalyn Kaplan, Solicitor General, and Christine Rosso, Senior Assistant Attorney General, Bonnie J. Campbell, Attorney General of Iowa, and John R. Perkins, Deputy Attorney General, Robert T. Stephan, Attorney General of Kansas, and Mary Ann Heckman, Assistant Attorney General, Frederic J. Cowan, Attorney General of Kentucky, and James M. Ringo, Assistant Attorney General, William J. Guste, Jr., Attorney General of Louisiana, and Anne F. Benoit, Assistant Attorney General, Michael E. Carpenter, Attorney General of Maine, and Stephen L. Wessler, Deputy Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Robert N. McDonald and Ellen S. Cooper, Assistant Attorneys General, Scott Harshbarger, Attorney General of Massachusetts, and George K. Weber, Assistant Attorney General, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Thomas F. Pursell, Deputy Attorney General, and James P. Spencer and Susan C. Gretz, Special Assistant Attorneys General, Frankie Sue Del Pappa, Attorney General of Nevada, and Rob Kirkman, Deputy Attorney General, Robert J. Del Tufo, Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General, Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solici-455principal issue here is whether a defendant's lack of market power in the primary equipment market precludes-as a matter of law-the possibility of market power in derivative aftermarkets.Petitioner Eastman Kodak Company manufactures and sells photocopiers and micrographic equipment. Kodak also sells service and replacement parts for its equipment. Respondents are 18 independent service organizations (ISO's) that in the early 1980's began servicing Kodak copying and micrographic equipment. Kodak subsequently adopted policies to limit the availability of parts to ISO's and to make it more difficult for ISO's to compete with Kodak in servicing Kodak equipment.tor General, and George W Sampson, Assistant Attorney General, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, and K. D. Sturgis, Assistant Attorney General, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Mark Tobey, Assistant Attorney General, R. Paul Van Dam, Attorney General of Utah, and Arthur M. Strong, Assistant Attorney General, Jeffrey L. Amestoy, Attorney General of Vermont, and Geoff Yudien, Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, and Carol A. Smith, Assistant Attorney General, and Mario J. Palumbo, Attorney General of West Virginia, and Donna S. Quesenberry, Assistant Attorney General; for the Automotive Warehouse Distributors Association et al. by Donald A. Randall, Louis R. Marchese, Robert J. Verdisco, and Basil J. Mezines; for Bell Atlantic Business Systems Services, Inc., by Richard G. Taranto, Joel I. Klein, and John M. Kelleher; for Grumman Corporation by Patrick Q Killian; for the National Association of State Purchasing Officials et al. by Richard D. M onkman; for the National Office Machine Dealers Association et al. by Mark P. Cohen; for the National Retail Federation by Michael J. Altier; for Public Citizen by Alan B. Morrison; for State Farm Mutual Automobile Insurance Co. et al. by Melvin Spaeth, James F. Fitzpatrick, and Melvin C. Garbow.Briefs of amici curiae were filed for the California State Electronics Association et al. by Richard I. Fine; for Computer Service Network International by Ronald S. Katz; and for the National Electronics Sales and Service Dealers Association by Ronald S. Katz.456Respondents instituted this action in the United States District Court for the Northern District of California, alleging that Kodak's policies were unlawful under both § 1 and § 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1 and 2 (1988 ed., Supp. II). After truncated discovery, the District Court granted summary judgment for Kodak. The Court of Appeals for the Ninth Circuit reversed. The appellate court found that respondents had presented sufficient evidence to raise a genuine issue concerning Kodak's market power in the service and parts markets. It rejected Kodak's contention that lack of market power in service and parts must be assumed when such power is absent in the equipment market. Because of the importance of the issue, we granted certiorari. 501 U. S. 1216 (1991).I ABecause this case comes to us on petitioner Kodak's motion for summary judgment, "[t]he evidence of [respondents] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986). Mindful that respondents' version of any disputed issue of fact thus is presumed correct, we begin with the factual basis of respondents' claims. See Arizona v. Maricopa County Medical Society, 457 U. S. 332, 339 (1982).Kodak manufactures and sells complex business machines-as relevant here, high-volume photocopiers and micrographic equipment.1 Kodak equipment is unique; micro-1 Kodak's micrographic equipment includes four different product areas.The first is capture products such as microfilmers and electronic scanners, which compact an image and capture it on microfilm. The second is equipment such as microfilm viewers and viewer/printers. This equipment is used to retrieve the images. The third is Computer Output Microform (COM) recorders, which are data-processing peripherals that record457graphic software programs that operate on Kodak machines, for example, are not compatible with competitors' machines. See App. 424-425, 487-489, 537. Kodak parts are not compatible with other manufacturers' equipment, and vice versa. See id., at 432,413-415. Kodak equipment, although expensive when new, has little resale value. See id., at 358-359, 424-425,427-428,467,505-506,519-521.Kodak provides service and parts for its machines to its customers. It produces some of the parts itself; the rest are made to order for Kodak by independent original-equipment manufacturers (OEM's). See id., at 429, 465, 490, 496. Kodak does not sell a complete system of original equipment, lifetime service, and lifetime parts for a single price. Instead, Kodak provides service after the initial warranty period either through annual service contracts, which include all necessary parts, or on a per-call basis. See id., at 98-99; Brief for Petitioner 3. It charges, through negotiations and bidding, different prices for equipment, service, and parts for different customers. See App. 420-421, 536. Kodak provides 80% to 95% of the service for Kodak machines. See id., at 430.Beginning in the early 1980's, ISO's began repairing and servicing Kodak equipment. They also sold parts and reconditioned and sold used Kodak equipment. Their customers were federal, state, and local government agencies, banks, insurance companies, industrial enterprises, and providers of specialized copy and microfilming services. See id., at 417, 419-421, 492-493, 499, 516, 539. ISO's provide service at a price substantially lower than Kodak does. See id., at 414, 451, 453-454, 469, 474-475, 488, 493, 536-537; Lodging 133. Some customers found that the ISO service was of higher quality. See App. 425-426, 537-538.computer-generated data onto microfilm. The fourth is Computer Assisted Retrieval (CAR) systems, which utilize computers to locate and retrieve micrographic images. See App. 156-158.458Some ISO customers purchase their own parts and hire ISO's only for service. See Lodging 144-147. Others choose ISO's to supply both service and parts. See id., at 133. ISO's keep an inventory of parts, purchased from Kodak or other sources, primarily the OEM's.2 See App. 99, 415-416, 490.In 1985 and 1986, Kodak implemented a policy of selling replacement parts for micrographic and copying machines only to buyers of Kodak equipment who use Kodak service or repair their own machines. See Brief for Petitioner 6; App. 91-92, 98-100, 140-141, 171-172, 190, 442-447, 455456, 483-484.As part of the same policy, Kodak sought to limit ISO access to other sources of Kodak parts. Kodak and the OEM's agreed that the OEM's would not sell parts that fit Kodak equipment to anyone other than Kodak. See id., at 417, 428-429, 447, 468, 474, 496. Kodak also pressured Kodak equipment owners and independent parts distributors not to sell Kodak parts to ISO's. See id., at 419-420, 428-429, 483484, 517-518, 589-590. In addition, Kodak took steps to restrict the availability of used machines. See id., at 427-428, 465-466, 510-511, 520.Kodak intended, through these policies, to make it more difficult for ISO's to sell service for Kodak machines. See id., at 106-107, 171,516. It succeeded. ISO's were unable to obtain parts from reliable sources, see id., at 429, 468, 496, and many were forced out of business, while others lost substantial revenue. See id., at 422, 458-459, 464, 468, 475477, 482-484, 495-496, 501, 521. Customers were forced to switch to Kodak service even though they preferred ISO service. See id., at 420-422.2 In addition to the OEM's, other sources of Kodak parts include (1) brokers who would buy parts from Kodak, or strip used Kodak equipment to obtain the useful parts and resell them, (2) customers who buy parts from Kodak and make them available to ISO's, and (3) used equipment to be stripped for parts. See id., at 419, 517; Brief for Petitioner 38.459BIn 1987, the ISO's filed the present action in the District Court, alleging, inter alia, that Kodak had unlawfully tied the sale of service for Kodak machines to the sale of parts, in violation of § 1 of the Sherman Act, and had unlawfully monopolized and attempted to monopolize the sale of service for Kodak machines, in violation of § 2 of that Act.3Kodak filed a motion for summary judgment before respondents had initiated discovery. The District Court permitted respondents to file one set of interrogatories and one set of requests for production of documents and to take six depositions. Without a hearing, the District Court granted summary judgment in favor of Kodak. App. to Pet. for Cert.29B.As to the § 1 claim, the court found that respondents had provided no evidence of a tying arrangement between Kodak equipment and service or parts. See id., at 32B-33B. The court, however, did not address respondents' § 1 claim that is at issue here. Respondents allege a tying arrangement not between Kodak equipment and service, but between Kodak parts and service. As to the § 2 claim, the District Court concluded that although Kodak had a "natural monopoly over the market for parts it sells under its name," a unilateral refusal to sell those parts to ISO's did not violate § 2.3 Section 1 of the Sherman Act states in relevant part: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U. S. C. § 1 (1988 ed., Supp. II).Section 2 of the Sherman Act states: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court." 15 U. S. C. § 2 (1988 ed., Supp. II).460The Court of Appeals for the Ninth Circuit, by a divided vote, reversed. 903 F.2d 612 (1990). With respect to the § 1 claim, the court first found that whether service and parts were distinct markets and whether a tying arrangement existed between them were disputed issues of fact. Id., at 615-616. Having found that a tying arrangement might exist, the Court of Appeals considered a question not decided by the District Court: Was there "an issue of material fact as to whether Kodak has sufficient economic power in the tying product market [parts] to restrain competition appreciably in the tied product market [service]." Id., at 616. The court agreed with Kodak that competition in the equipment market might prevent Kodak from possessing power in the parts market, but refused to uphold the District Court's grant of summary judgment "on this theoretical basis" because "market imperfections can keep economic theories about how consumers will act from mirroring reality." Id., at 617. Noting that the District Court had not considered the market power issue, and that the record was not fully developed through discovery, the court declined to require respondents to conduct market analysis or to pinpoint specific imperfections in order to withstand summary judgment.4 "It is enough that [respondents] have presented evidence of actual events from which a reasonable trier of fact could conclude that ... competition in the [equipment] market does not, in reality, curb Kodak's power in the parts market." Ibid.4 Specifically, the Court of Appeals explained that the District Court had denied the request for further discovery made by respondents in their opposition to Kodak's summary judgment motion: "For example, [respondents] requested to depose two ISO customers who allegedly would not sign accurate statements concerning Kodak's market power in the parts market. Not finding it necessary to reach the market power issue in its decision, the district court, of course, had no reason to grant this request." 903 F. 2d, at 617, n. 4.461The court then considered the three business justifications Kodak proffered for its restrictive parts policy: (1) to guard against inadequate service, (2) to lower inventory costs, and (3) to prevent ISO's from free-riding on Kodak's investment in the copier and micrographic industry. The court concluded that the trier of fact might find the product quality and inventory reasons to be pretextual and that there was a less restrictive alternative for achieving Kodak's qualityrelated goals. Id., at 618-619. The court also found Kodak's third justification, preventing ISO's from profiting on Kodak's investments in the equipment markets, legally insufficient. Id., at 619.As to the § 2 claim, the Court of Appeals concluded that sufficient evidence existed to support a finding that Kodak's implementation of its parts policy was "anticompetitive" and "exclusionary" and "involved a specific intent to monopolize." Id., at 620. It held that the ISO's had come forward with sufficient evidence, for summary judgment purposes, to disprove Kodak's business justifications. Ibid.The dissent in the Court of Appeals, with respect to the § 1 claim, accepted Kodak's argument that evidence of competition in the equipment market "necessarily precludes power in the derivative market." Id., at 622 (emphasis in original). With respect to the § 2 monopolization claim, the dissent concluded that, entirely apart from market power considerations, Kodak was entitled to summary judgment on the basis of its first business justification because it had "submitted extensive and undisputed evidence of a marketing strategy based on high-quality service." Id., at 623.IIA tying arrangement is "an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier." Northern Pacific R. Co. v. United States, 356 U. S. 1, 5-6462(1958). Such an arrangement violates § 1 of the Sherman Act if the seller has "appreciable economic power" in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U. S. 495, 503 (1969).Kodak did not dispute that its arrangement affects a substantial volume of interstate commerce. It, however, did challenge whether its activities constituted a "tying arrangement" and whether Kodak exercised "appreciable economic power" in the tying market. We consider these issues in turn.AFor respondents to defeat a motion for summary judgment on their claim of a tying arrangement, a reasonable trier of fact must be able to find, first, that service and parts are two distinct products, and, second, that Kodak has tied the sale of the two products.For service and parts to be considered two distinct products, there must be sufficient consumer demand so that it is efficient for a firm to provide service separately from parts. Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U. S. 2, 21-22 (1984). Evidence in the record indicates that service and parts have been sold separately in the past and still are sold separately to self-service equipment owners.5 Indeed, the development of the entire high-technology service industry is evidence of the efficiency of a separate market for service.65 The Court of Appeals found: "Kodak's policy of allowing customers to purchase parts on condition that they agree to service their own machines suggests that the demand for parts can be separated from the demand for service." Id., at 616.6 Amicus briefs filed by various service organizations attest to the magnitude of the service business. See, e. g., Brieffor Computer Service Network International as Amicus Curiae; Brief for National Electronics Sales and Service Dealers Association as Amicus Curiae; Brief for Cali-463Kodak insists that because there is no demand for parts separate from service, there cannot be separate markets for service and parts. Brief for Petitioner 15, n. 3. By that logic, we would be forced to conclude that there can never be separate markets, for example, for cameras and film, computers and software, or automobiles and tires. That is an assumption we are unwilling to make. "We have often found arrangements involving functionally linked products at least one of which is useless without the other to be prohibited tying devices." Jefferson Parish, 466 U. 8., at 19, n.30.Kodak's assertion also appears to be incorrect as a factual matter. At least some consumers would purchase service without parts, because some service does not require parts, and some consumers, those who self-service for example, would purchase parts without service.7 Enough doubt is cast on Kodak's claim of a unified market that it should be resolved by the trier of fact.Finally, respondents have presented sufficient evidence of a tie between service and parts. The record indicates that Kodak would sell parts to third parties only if they agreed not to buy service from 180's.8fornia State Electronics Association et al. as Amici Curiae; Brief for N ational Office Machine Dealers et al. as Amici Curiae.7 The dissent suggests that parts and service are not separate products for tying purposes because all service may involve installation of parts. Post, at 494-495, n. 2. Because the record does not support this factual assertion, under the approach of both the Court and the concurrence in Jefferson Parish Hospital Dist. No.2 v. Hyde, 466 U. S. 2 (1984), Kodak is not entitled to summary judgment on whether parts and service are distinct markets.8 In a footnote, Kodak contends that this practice is only a unilateral refusal to deal, which does not violate the antitrust laws. See Brief for Petitioner 15, n. 4. Assuming, arguendo, that Kodak's refusal to sell parts to any company providing service can be characterized as a unilateral refusal to deal, its alleged sale of parts to third parties on condition that they buy service from Kodak is not. See 903 F. 2d, at 619.464BHaving found sufficient evidence of a tying arrangement, we consider the other necessary feature of an illegal tying arrangement: appreciable economic power in the tying market. Market power is the power "to force a purchaser to do something that he would not do in a competitive market." Jefferson Parish, 466 U. S., at 14.9 It has been defined as "the ability of a single seller to raise price and restrict output." Fortner, 394 U. S., at 503; United States v. E. 1. du Pont de Nemours & Co., 351 U. S. 377, 391 (1956). The existence of such power ordinarily is inferred from the seller's possession of a predominant share of the market. Jefferson Parish, 466 U. S., at 17; United States v. Grinnell Corp., 384 U. S. 563, 571 (1966); Times-Picayune Publishing Co. v. United States, 345 U. S. 594, 611-613 (1953).1Respondents contend that Kodak has more than sufficient power in the parts market to force unwanted purchases of the tied market, service. Respondents provide evidence that certain parts are available exclusively through Kodak. Respondents also assert that Kodak has control over the availability of parts it does not manufacture. According to respondents' evidence, Kodak has prohibited independent manufacturers from selling Kodak parts to ISO's, pressured Kodak equipment owners and independent parts distributors to deny ISO's the purchase of Kodak parts, and taken steps to restrict the availability of used machines.9 "[T]he essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. When such 'forcing' is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated." Jefferson Parish, 466 U. S., at 12.465Respondents also allege that Kodak's control over the parts market has excluded service competition, boosted service prices, and forced unwilling consumption of Kodak service. Respondents offer evidence that consumers have switched to Kodak service even though they preferred ISO service, that Kodak service was of higher price and lower quality than the preferred ISO service, and that ISO's were driven out of business by Kodak's policies. Under our prior precedents, this evidence would be sufficient to entitle respondents to a trial on their claim of market power.2Kodak counters that even if it concedes monopoly share of the relevant parts market, it cannot actually exercise the necessary market power for a Sherman Act violation. This is so, according to Kodak, because competition exists in the equipment market.lO Kodak argues that it could not have10 In their brief and at oral argument, respondents argued that Kodak's market share figures for high-volume copy machines, CAR systems, and micrographic-capture equipment demonstrate Kodak's market power in the equipment market. Brief for Respondents 16-18, 32-33; Tr. of Oral Arg.28-31.In the Court of Appeals, however, respondents did not contest Kodak's assertion that its market shares indicated a competitive equipment market. The Court of Appeals believed that respondents "do not dispute Kodak's assertion that it lacks market power in the [equipment] markets." 903 F. 2d, at 616, n. 3. Nor did respondents question Kodak's asserted lack of market power in their brief in opposition to the petition for certiorari, although they acknowledged that Kodak's entire case rested on its understanding that respondents were not disputing the existence of competition in the equipment market. Brief in Opposition 8.Recognizing that on summary judgment we may examine the record de novo without relying on the lower courts' understanding, United States v. Diebold, Inc., 369 U. S. 654, 655 (1962), respondents now ask us to decline to reach the merits of the questions presented in the petition, and instead to affirm the Ninth Circuit's judgment based on the factual dispute over market power in the equipment market. We decline respondents' invitation. We stated in Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985):"Our decision to grant certiorari represents a commitment of scarce judi-466the ability to raise prices of service and parts above the level that would be charged in a competitive market because any increase in profits from a higher price in the aftermarkets at least would be offset by a corresponding loss in profits from lower equipment sales as consumers began purchasing equipment with more attractive service costs.Kodak does not present any actual data on the equipment, service, or parts markets. Instead, it urges the adoption of a substantive legal rule that "equipment competition precludes any finding of monopoly power in derivative aftermarkets." Brief for Petitioner 33. Kodak argues that such a rule would satisfy its burden as the moving party of showing "that there is no genuine issue as to any material fact" on the market power issueY See Fed. Rule Civ. Proc. 56(c).Legal presumptions that rest on formalistic distinctions rather than actual market realities are generally disfavoredcial resources with a view to deciding the merits of one or more of the questions presented in the petition." Because respondents failed to bring their objections to the premise underlying the questions presented to our attention in their opposition to the petition for certiorari, we decide those questions based on the same premise as the Court of Appeals, namely, that competition exists in the equipment market.11 Kodak argues that such a rule would be per se, with no opportunity for respondents to rebut the conclusion that market power is lacking in the parts market. See Brief for Petitioner 30-31 ("There is nothing that respondents could prove that would overcome Kodak's conceded lack of market power"); id., at 30 (discovery is "pointless" once the "dispositive fact" of lack of market power in the equipment market is conceded); id., at 22 (Kodak's lack of market power in the equipment market "dooms any attempt to extract monopoly profits" even in an allegedly imperfect market); id., at 25 (it is "impossible" for Kodak to make more total profit by overcharging its existing customers for service).As an apparent second-best alternative, Kodak suggests elsewhere in its brief that the rule would permit a defendant to meet its summary judgment burden under Federal Rule of Civil Procedure 56(c); the burden would then shift to the plaintiffs to "prove ... that there is specific reason to believe that normal economic reasoning does not apply." Brief for Petitioner 30. This is the United States' position. See Brief for United States as Amicus Curiae 10-11.467in antitrust law. This Court has preferred to resolve antitrust claims on a case-by-case basis, focusing on the "particular facts disclosed by the record." Maple Flooring Manufacturers Assn. v. United States, 268 U. S. 563, 579 (1925); Du Pont, 351 U. S., at 395, n. 22; Continental T. V:, Inc. v. GTE Sylvania Inc., 433 U. S. 36, 70 (1977) (WHITE, J., concurring in judgment).12 In determining the existence of market power, and specifically the "responsiveness of the sales of one product to price changes of the other," Du Pont, 351 U. S., at 400; see also id., at 394-395, and 400-401, this Court has examined closely the economic reality of the market at issue.13Kodak contends that there is no need to examine the facts when the issue is market power in the aftermarkets. A legal presumption against a finding of market power is warranted in this situation, according to Kodak, because the existence of market power in the service and parts markets absent power in the equipment market "simply makes no economic sense," and the absence of a legal presumption would deter procompetitive behavior. Matsushita, 475 U. S., at 587; id., at 594-595.Kodak analogizes this case to Matsushita, where a group of American corporations that manufactured or sold consumer electronic products alleged that their 21 Japanese counterparts were engaging in a 20- year conspiracy to price12 See generally Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723-726 (1988); FTC v. Indiana Federation of Dentists, 476 U. S. 447, 458-459 (1986); National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 100-104 (1984); Continental T. v., Inc. v. GTE Sylvania Inc., 433 U. S., at 59.13 See, e. g., Jefferson Parish, 466 U. S., at 26-29; United States v. Connecticut National Bank, 418 U. S. 656, 661-666 (1974); United States v. Grinnell Corp., 384 U. S. 563, 571-576 (1966); International Boxing Club of New York, Inc. v. United States, 358 U. S. 242, 250-251 (1959); see also Jefferson Parish, 466 U. S., at 37, n. 6 (O'CONNOR, J., concurring) (citing cases and describing the careful consideration the Court gives to the particular facts when determining market power).468below cost in the United States in the hope of expanding their market share sometime in the future. After several years of detailed discovery, the defendants moved for summary judgment. Id., at 577-582. Because the defendants had every incentive not to engage in the alleged conduct which required them to sustain losses for decades with no foreseeable profits, the Court found an "absence of any rational motive to conspire." Id., at 597. In that context, the Court determined that the plaintiffs' theory of predatory pricing made no practical sense, was "speculative," and was not "reasonable." Id., at 588, 590, 593, 595, 597. Accordingly, the Court held that a reasonable jury could not return a verdict for the plaintiffs and that summary judgment would be appropriate against them unless they came forward with more persuasive evidence to support their theory. Id., at 587-588, 595-598.The Court's requirement in Matsushita that the plaintiffs' claims make economic sense did not introduce a special burden on plaintiffs facing summary judgment in antitrust cases. The Court did not hold that if the moving party enunciates any economic theory supporting its behavior, regardless of its accuracy in reflecting the actual market, it is entitled to summary judgment. Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision.14 If the plaintiff's theory is eco-14 See, e. g., Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986) ("[S]ummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"); Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 768 (1984) (to survive summary judgment there must be evidence that "reasonably tends to prove" plaintiff's theory); First National Bank of Arizona v. Cities Service Co., 391 U. S. 253, 288-289 (1968) (defendant meets his burden under Rule 56(c) when he "conclusively show[s] that the facts upon which [the plaintiff] relied to support his allegation were not susceptible of the interpretation which he sought to give them"); Eastman Kodak Co. of New York v. Southern Photo Materials Co., 273 U. S. 359,375 (1927). See also H. L. Hayden469nomically senseless, no reasonable jury could find in its favor, and summary judgment should be granted.Kodak, then, bears a substantial burden in showing that it is entitled to summary judgment. It must show that despite evidence of increased prices and excluded competition, an inference of market power is unreasonable. To determine whether Kodak has met that burden, we must unravel the factual assumptions underlying its proposed rule that lack of power in the equipment market necessarily precludes power in the aftermarkets.The extent to which one market prevents exploitation of another market depends on the extent to which consumers will change their consumption of one product in response to a price change in another, i. e., the "cross-elasticity of demand." See Du Pont, 351 U. S., at 400; P. Areeda & L. Kaplow, Antitrust Analysis, 342(c) (4th ed. 1988).15 Ko-Co. of New York, Inc. v. Siemens Medical Systems, Inc., 879 F.2d 1005, 1012 (CA2 1989) ("[O]nly reasonable inferences can be drawn from the evidence in favor of the nonmoving party") (emphasis in original); Arnold Pontiac-GMC, Inc. v. Budd Baer, Inc., 826 F.2d 1335, 1339 (CA3 1987) (Matsushita directs us "'to consider whether the inference of conspiracy is reasonable' "); Instructional Systems Development Corp. v. Aetna Casualty & Surety Co., 817 F.2d 639, 646 (CAlO 1987) (summary judgment not appropriate under Matsushita when defendants "could reasonably have been economically motivated").15 What constrains the defendant's ability to raise prices in the service market is "the elasticity of demand faced by the defendant-the degree to which its sales fall ... as its price rises." Areeda & Kaplow' 342(c), p.576.Courts usually have considered the relationship between price in one market and demand in another in defining the relevant market. Because market power is often inferred from market share, market definition generally determines the result of the case. Pitofsky, New Definitions of Relevant Market and the Assault on Antitrust, 90 Colum. L. Rev. 1805, 18061813 (1990). Kodak chose to focus on market power directly rather than arguing that the relationship between equipment and service and parts is such that the three should be included in the same market definition. Whether considered in the conceptual category of "market definition" or "market power," the ultimate inquiry is the same-whether competition470dak's proposed rule rests on a factual assumption about the cross-elasticity of demand in the equipment and aftermarkets: "If Kodak raised its parts or service prices above competitive levels, potential customers would simply stop buying Kodak equipment. Perhaps Kodak would be able to increase short term profits through such a strategy, but at a devastating cost to its long term interests." 16 Brief for Petitioner 12. Kodak argues that the Court should accept, as a matter of law, this "basic economic realit[y]," id., at 24, that competition in the equipment market necessarily prevents market power in the aftermarketsPEven if Kodak could not raise the price of service and parts one cent without losing equipment sales, that fact would not disprove market power in the aftermarkets. The sales of even a monopolist are reduced when it sells goods at a monopoly price, but the higher price more than compensates for the loss in sales. Areeda & Kaplow" 112 and 340(a). Kodak's claim that charging more for service and parts would be "a short-run game," Brief for Petitioner 26, is based on the false dichotomy that there are only two pricesin the equipment market will significantly restrain power in the service and parts markets.16 The United States as amicus curiae in support of Kodak echoes this argument: "The ISOs' claims are implausible because Kodak lacks market power in the markets for its copier and micrographic equipment. Buyers of such equipment regard an increase in the price of parts or service as an increase in the price of the equipment, and sellers recognize that the revenues from sales of parts and service are attributable to sales of the equipment. In such circumstances, it is not apparent how an equipment manufacturer such as Kodak could exercise power in the aftermarkets for parts and service." Brief for United States as Amicus Curiae 8.17 It is clearly true, as the United States claims, that Kodak "cannot set service or parts prices without regard to the impact on the market for equipment." Id., at 20. The fact that the cross-elasticity of demand is not zero proves nothing; the disputed issue is how much of an impact an increase in parts and service prices has on equipment sales and on Kodak's profits.471that can be charged-a competitive price or a ruinous one. But there could easily be a middle, optimum price at which the increased revenues from the higher priced sales of service and parts would more than compensate for the lower revenues from lost equipment sales. The fact that the equipment market imposes a restraint on prices in the aftermarkets by no means disproves the existence of power in those markets. See Areeda & Kaplow' 340(b) ("[T]he existence of significant substitution in the event of further price increases or even at the current price does not tell us whether the defendant already exercises significant market power") (emphasis in original). Thus, contrary to Kodak's assertion, there is no immutable physical law-no "basic economic reality"-insisting that competition in the equipment market cannot coexist with market power in the aftermarkets.We next consider the more narrowly drawn question: Does Kodak's theory describe actual market behavior so accurately that respondents' assertion of Kodak market power in the aftermarkets, if not impossible, is at least unreasonable? 18 Cf. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986).18 Although Kodak repeatedly relies on Continental T. V. as support for its factual assertion that the equipment market will prevent exploitation of the service and parts markets, the case is inapposite. In Continental T. v., the Court found that a manufacturer's policy restricting the number of retailers that were permitted to sell its product could have a procompetitive effect. See 433 U. S., at 55. The Court also noted that any negative effect of exploitation of the intrabrand market (the competition between retailers of the same product) would be checked by competition in the interbrand market (competition over the same generic product) because consumers would substitute a different brand of the same product. Unlike Continental T. v., this case does not concern vertical relationships between parties on different levels of the same distribution chain. In the relevant market, service, Kodak and the ISO's are direct competitors; their relationship is horizontal. The interbrand competition at issue here is competition over the provision of service. Despite petitioner's best effort,472To review Kodak's theory, it contends that higher service prices will lead to a disastrous drop in equipment sales. Presumably, the theory's corollary is to the effect that low service prices lead to a dramatic increase in equipment sales. According to the theory, one would have expected Kodak to take advantage of lower priced ISO service as an opportunity to expand equipment sales. Instead, Kodak adopted a restrictive sales policy consciously designed to eliminate the lower priced ISO service, an act that would be expected to devastate either Kodak's equipment sales or Kodak's faith in its theory. Yet, according to the record, it has done neither. Service prices have risen for Kodak customers, but there is no evidence or assertion that Kodak equipment sales have dropped.Kodak and the United States attempt to reconcile Kodak's theory with the contrary actual results by describing a "marketing strategy of spreading over time the total cost to the buyer of Kodak equipment." Brief for United States as Amicus Curiae 18; see also Brief for Petitioner 18. In other words, Kodak could charge subcompetitive prices for equipment and make up the difference with supracompetitive prices for service, resulting in an overall competitive price. This pricing strategy would provide an explanation for the theory's descriptive failings-if Kodak in fact had adopted it. But Kodak never has asserted that it prices its equipment or parts subcompetitively and recoups its profits through service. Instead, it claims that it prices its equipment comparably to its competitors and intends that both its equipment sales and service divisions be profitable. See App. 159-161, 170, 178, 188. Moreover, this hypothetical pricing strategy is inconsistent with Kodak's policy toward its self-service customers. If Kodak were underpricing its equipment, hoping to lock in customers and recover its losses in the servicerepeating the mantra "interbrand competition" does not transform this case into one over an agreement the manufacturer has with its dealers that would fall under the rubric of Continental T. V.473market, it could not afford to sell customers parts without service. In sum, Kodak's theory does not explain the actual market behavior revealed in the record.Respondents offer a forceful reason why Kodak's theory, although perhaps intuitively appealing, may not accurately explain the behavior of the primary and derivative markets for complex durable goods: the existence of significant information and switching costs. These costs could create a less responsive connection between service and parts prices and equipment sales.For the service-market price to affect equipment demand, consumers must inform themselves of the total cost of the "package" -equipment, service, and parts-at the time of purchase; that is, consumers must engage in accurate lifecycle pricing.19 Life-cycle pricing of complex, durable equipment is difficult and costly. In order to arrive at an accurate price, a consumer must acquire a substantial amount of raw data and undertake sophisticated analysis. The necessary information would include data on price, quality, and availability of products needed to operate, upgrade, or enhance the initial equipment, as well as service and repair costs, including estimates of breakdown frequency, nature of repairs, price of service and parts, length of "downtime," and losses incurred from downtime.20Much of this information is difficult-some of it impossible-to acquire at the time of purchase. During the life of a product, companies may change the service and parts prices, and develop products with more advanced features, a19 See Craswell, Tying Requirements in Competitive Markets: The Consumer Protection Issues, 62 B. U. L. Rev. 661, 676 (1982); Beales, Craswell, & Salop, The Efficient Regulation of Consumer Information, 24 J. Law & Econ. 491, 509-511 (1981); Jefferson Parish, 466 U. S., at 15.20 In addition, of course, in order to price accurately the equipment, a consumer would need initial purchase information such as prices, features, quality, and available warranties for different machinery with different capabilities, and residual value information such as the longevity of product use and its potential resale or trade-in value.474decreased need for repair, or new warranties. In addition, the information is likely to be customer specific; lifecycle costs will vary from customer to customer with the type of equipment, degrees of equipment use, and costs of downtime.Kodak acknowledges the cost of information, but suggests, again without evidentiary support, that customer information needs will be satisfied by competitors in the equipment markets. Brief for Petitioner 26, n. 11. It is a question of fact, however, whether competitors would provide the necessary information. A competitor in the equipment market may not have reliable information about the lifecycle costs of complex equipment it does not service or the needs of customers it does not serve. Even if competitors had the relevant information, it is not clear that their interests would be advanced by providing such information to consumers. See 2 P. Areeda & D. Turner, Antitrust Law' J"OJ"bl (1978).21Moreover, even if consumers were capable of acquiring and processing the complex body of information, they may choose not to do so. Acquiring the information is expensive. If the costs of service are small relative to the equipment price, or if consumers are more concerned about equipment capabilities than service costs, they may not find it cost efficient to21 To inform consumers about Kodak, the competitor must be willing to forgo the opportunity to reap supracompetitive prices in its own service and parts markets. The competitor may anticipate that charging lower service and parts prices and informing consumers about Kodak in the hopes of gaining future equipment sales will cause Kodak to lower the price on its service and parts, canceling any gains in equipment sales to the competitor and leaving both worse off. Thus, in an equipment market with relatively few sellers, competitors may find it more profitable to adopt Kodak's service and parts policy than to inform the consumers. See 2 Areeda & Turner, Antitrust Law' 404bl; App. 177 (Kodak, Xerox, and IBM together have nearly 100% of relevant market).Even in a market with many sellers, anyone competitor may not have sufficient incentive to inform consumers because the increased patronage attributable to the corrected consumer beliefs will be shared among other competitors. Beales, Craswell, & Salop, 24 J. Law & Econ., at 503-504, 506.475compile the information. Similarly, some consumers, such as the Federal Government, have purchasing systems that make it difficult to consider the complete cost of the "package" at the time of purchase. State and local governments often treat service as an operating expense and equipment as a capital expense, delegating each to a different department. These governmental entities do not lifecycle price, but rather choose the lowest price in each market. See Brief for N ational Association of State Purchasing Officials et al. as Amici Curiae; Brief for State of Ohio et al. as Amici Curiae; App. 429-430.As Kodak notes, there likely will be some large-volume, sophisticated purchasers who will undertake the comparative studies and insist, in return for their patronage, that Kodak charge them competitive lifecycle prices. Kodak contends that these knowledgeable customers will hold down the package price for all other customers. Brief for Petitioner 23, n. 9. There are reasons, however, to doubt that sophisticated purchasers will ensure that competitive prices are charged to unsophisticated purchasers, too. As an initial matter, if the number of sophisticated customers is relatively small, the amount of profits to be gained by supracompetitive pricing in the service market could make it profitable to let the knowledgeable consumers take their business elsewhere. More importantly, if a company is able to price discriminate between sophisticated and unsophisticated consumers, the sophisticated will be unable to prevent the exploitation of the uninformed. A seller could easily price discriminate by varying the equipment/parts/service package, developing different warranties, or offering price discounts on different components.Given the potentially high cost of information and the possibility that a seller may be able to price discriminate between knowledgeable and unsophisticated consumers, it makes little sense to assume, in the absence of any evidentiary support, that equipment-purchasing decisions are based476on an accurate assessment of the total cost of equipment, service, and parts over the lifetime of the machine.22Indeed, respondents have presented evidence that Kodak practices price discrimination by selling parts to customers who service their own equipment, but refusing to sell parts to customers who hire third-party service companies. Companies that have their own service staff are likely to be highvolume users, the same companies for whom it is most likely to be economically worthwhile to acquire the complex information needed for comparative lifecycle pricing.A second factor undermining Kodak's claim that supracompetitive prices in the service market lead to ruinous losses in equipment sales is the cost to current owners of switching to a different product. See Areeda & Turner' 519a.23 If the cost of switching is high, consumers who already have purchased the equipment, and are thus "locked in," will tolerate some level of service-price increases before changing equipment brands. Under this scenario, a seller profitably could maintain supracompetitive prices in the aftermarket if the switching costs were high relative to the increase in service prices, and the number of locked-in customers were high relative to the number of new purchasers.Moreover, if the seller can price discriminate between its locked-in customers and potential new customers, this strategy is even more likely to prove profitable. The seller could simply charge new customers below-marginal cost on the equipment and recoup the charges in service, or offer pack-22 See Salop & Stiglitz, Bargains and Ripoffs: A Model of Monopolistically Competitive Price Dispersion, 44 Rev. Econ. Studies 493 (1977); Salop, Information and Market Structure-Information and Monopolistic Competition, 66 Am. Econ. Rev. 240 (1976); Stigler, The Economics of Information, 69 J. Pol. Econ. 213 (1961).23 A firm can exact leverage whenever other equipment is not a ready substitute. F. Scherer & D. Ross, Industrial Market Structure and Economic Performance 16-17 (3d ed. 1990).477ages with lifetime warranties or long-term service agreements that are not available to locked-in customers.Respondents have offered evidence that the heavy initial outlay for Kodak equipment, combined with the required support material that works only with Kodak equipment, makes switching costs very high for existing Kodak customers. And Kodak's own evidence confirms that it varies the package price of equipment/parts/service for different customers.In sum, there is a question of fact whether information costs and switching costs foil the simple assumption that the equipment and service markets act as pure complements to one another.24We conclude, then, that Kodak has failed to demonstrate that respondents' inference of market power in the service and parts markets is unreasonable, and that, consequently, Kodak is entitled to summary judgment. It is clearly reasonable to infer that Kodak has market power to raise prices and drive out competition in the aftermarkets, since respondents offer direct evidence that Kodak did SO.25 It is also plausible, as discussed above, to infer that Kodak chose to gain immediate profits by exerting that market power where locked-in customers, high information costs, and discriminatory pricing limited and perhaps eliminated any long-24 The dissent disagrees based on its hypothetical case of a tie between equipment and service. "The only thing lacking" to bring this case within the hypothetical case, states the dissent, "is concrete evidence that the restrictive parts policy was ... generally known." Post, at 492. But the dissent's "only thing lacking" is the crucial thing lacking-evidence. Whether a tie between parts and service should be treated identically to a tie between equipment and service, as the dissent and Kodak argue, depends on whether the equipment market prevents the exertion of market power in the parts market. Far from being "anomalous," post, at 492-493, requiring Kodak to provide evidence on this factual question is completely consistent with our prior precedent. See, e. g., n. 13, supra.25 Cf. Instructional Systems, 817 F. 2d, at 646 (finding the conspiracy reasonable under Matsushita because its goals were in fact achieved).478term loss. Viewing the evidence in the light most favorable to respondents, their allegations of market power "mak[e] ... economic sense." Cf. Matsushita, 475 U. S., at 587.Nor are we persuaded by Kodak's contention that it is entitled to a legal presumption on the lack of market power because, as in Matsushita, there is a significant risk of deterring procompetitive conduct. Plaintiffs in Matsushita attempted to prove the antitrust conspiracy "through evidence of rebates and other price-cutting activities." Id., at 594. Because cutting prices to increase business is "the very essence of competition," the Court was concerned that mistaken inferences would be "especially costly" and would "chill the very conduct the antitrust laws are designed to protect." Ibid. See also Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 763 (1984) (permitting inference of concerted action would "deter or penalize perfectly legitimate conduct"). But the facts in this case are just the opposite. The alleged conduct-higher service prices and market foreclosure-is facially anticompetitive and exactly the harm that antitrust laws aim to prevent. In this situation, Matsushita does not create any presumption in favor of summary judgment for the defendant.Kodak contends that, despite the appearance of anticompetitiveness, its behavior actually favors competition because its ability to pursue innovative marketing plans will allow it to compete more effectively in the equipment market. Brief for Petitioner 40-41. A pricing strategy based on lower equipment prices and higher aftermarket prices could enhance equipment sales by making it easier for the buyer to finance the initial purchase.26 It is undisputed that competition is enhanced when a firm is able to offer various marketing options, including bundling of support and maintenance service with the sale of equipment. Nor do such ac-26 It bears repeating that in this case Kodak has never claimed that it is in fact pursuing such a pricing strategy.479tions run afoul of the antitrust laws.27 But the procompetitive effect of the specific conduct challenged here, eliminating all consumer parts and service options, is far less clear.28We need not decide whether Kodak's behavior has any procompetitive effects and, if so, whether they outweigh the anticompetitive effects. We note only that Kodak's service and parts policy is simply not one that appears always or almost always to enhance competition, and therefore to warrant a legal presumption without any evidence of its actual economic impact. In this case, when we weigh the risk of deterring procompetitive behavior by proceeding to trial against the risk that illegal behavior will go unpunished, the balance tips against summary judgment. Cf. Matsushita, 475 U. S., at 594-595.For the foregoing reasons, we hold that Kodak has not met the requirements of Federal Rule of Civil Procedure 56(c). We therefore affirm the denial of summary judgment on respondents' § 1 claim.2927 See Jefferson Parish, 466 U. S., at 12 ("Buyers often find package sales attractive; a seller's decision to offer such packages can merely be an attempt to compete effectively-conduct that is entirely consistent with the Sherman Act"). See also Yates & DiResta, Software Support and Hardware Maintenance Practices: Tying Considerations, The Computer Lawyer, Vol. 8, No.6, p. 17 (1991) (describing various service and parts policies that enhance quality and sales but do not violate the antitrust laws).28 Two of the largest consumers of service and parts contend that they are worse off when the equipment manufacturer also controls service and parts. See Brief for State Farm Mutual Automobile Insurance Co. et al. as Amici Curiae; Brief for State of Ohio et al. as Amici Curiae.29 The dissent urges a radical departure in this Court's antitrust law. It argues that because Kodak has only an "inherent" monopoly in parts for its equipment, post, at 489-490, the antitrust laws do not apply to its efforts to expand that power into other markets. The dissent's proposal to grant per se immunity to manufacturers competing in the service market would exempt a vast and growing sector of the economy from antitrust laws. Leaving aside the question whether the Court has the authority to480IIIRespondents also claim that they have presented genuine issues for trial as to whether Kodak has monopolized, or at-make such a policy decision, there is no support for it in our jurisprudence or the evidence in this case.Even assuming, despite the absence of any proof from the dissent, that all manufacturers possess some inherent market power in the parts market, it is not clear why that should immunize them from the antitrust laws in another market. The Court has held many times that power gained through some natural and legal advantage such as a patent, copyright, or business acumen can give rise to liability if "a seller exploits his dominant position in one market to expand his empire into the next." TimesPicayune Publishing Co. v. United States, 345 U. S. 594, 611 (1953); see, e. g., Northern Pacific R. Co. v. United States, 356 U. S. 1 (1958); United States v. Paramount Pictures, Inc., 334 U. S. 131 (1948); Leitch Mfg. Co. v. Barber Co., 302 U. S. 458, 463 (1938). Moreover, on the occasions when the Court has considered tying in derivative aftermarkets by manufacturers, it has not adopted any exception to the usual antitrust analysis, treating derivative aftermarkets as it has every other separate market. See International Salt Co. v. United States, 332 U. S. 392 (1947); International Business Machines Corp. v. United States, 298 U. S. 131 (1936); United Shoe Machinery Corp. v. United States, 258 U. S. 451 (1922). Our past decisions are reason enough to reject the dissent's proposal. See Patterson v. McLean Credit Union, 491 U. S. 164,172-173 (1989) ("Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done").Nor does the record in this case support the dissent's proposed exemption for aftermarkets. The dissent urges its exemption because the tie here "does not permit the manufacturer to project power over a class of consumers distinct from that which it is already able to exploit (and fully) without the inconvenience of the tie." Post, at 498. Beyond the dissent's obvious difficulty in explaining why Kodak would adopt this expensive tying policy if it could achieve the same profits more conveniently through some other means, respondents offer an alternative theory, supported by the record, that suggests Kodak is able to exploit some customers who in the absence of the tie would be protected from increases in parts prices by knowledgeable customers. See supra, at 475-476.At bottom, whatever the ultimate merits of the dissent's theory, at this point it is mere conjecture. Neither Kodak nor the dissent have provided481tempted to monopolize, the service and parts markets in violation of § 2 of the Sherman Act. "The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." United States v. Grinnell Corp., 384 U. S., at 570-571.AThe existence of the first element, possession of monopoly power, is easily resolved. As has been noted, respondents have presented a triable claim that service and parts are separate markets, and that Kodak has the "power to control prices or exclude competition" in service and parts. Du Pont, 351 U. S., at 391. Monopoly power under § 2 requires, of course, something greater than market power under § 1. See Fortner, 394 U. S., at 502. Respondents' evidence that Kodak controls nearly 100% of the parts market and 80% to 95% of the service market, with no readily available substitutes, is, however, sufficient to survive summary judgment under the more stringent monopoly standard of § 2. See National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 112 (1984). Cf. United States v. Grinnell Corp., 384 U. S., at 571 (87% of the market is a monopoly); American Tobacco Co. v. United States, 328 U. S. 781, 797 (1946) (over two-thirds of the market is a monopoly).Kodak also contends that, as a matter of law, a single brand of a product or service can never be a relevant market under the Sherman Act. We disagree. The relevant mar-any evidence refuting respondents' theory of forced unwanted purchases at higher prices and price discrimination. While it may be, as the dissent predicts, that the equipment market will prevent any harms to consumers in the aftermarkets, the dissent never makes plain why the Court should accept that theory on faith rather than requiring the usual evidence needed to win a summary judgment motion.482ket for antitrust purposes is determined by the choices available to Kodak equipment owners. See Jefferson Parish, 466 U. S., at 19. Because service and parts for Kodak equipment are not interchangeable with other manufacturers' service and parts, the relevant market from the Kodak equipment owner's perspective is composed of only those companies that service Kodak machines. See Du Pont, 351 U. S., at 404 ("The market is composed of products that have reasonable interchangeability").3o This Court's prior cases support the proposition that in some instances one brand of a product can constitute a separate market. See National Collegiate Athletic Assn., 468 U. S., at 101-102, 111-112; International Boxing Club of New York, Inc. v. United States, 358 U. S. 242, 249-252 (1959); International Business Machines Corp. v. United States, 298 U. S. 131 (1936).31 The proper market definition in this case can be determined only after a factual inquiry into the "commercial realities" faced by consumers. United States v. Grinnell Corp., 384 U. S., at 572.BThe second element of a § 2 claim is the use of monopoly power "to foreclose competition, to gain a competitive advan-30 Kodak erroneously contends that this Court in Du Pont rejected the notion that a relevant market could be limited to one brand. Brief for Petitioner 33. The Court simply held in Du Pont that one brand does not necessarily constitute a relevant market if substitutes are available. 351 U. S., at 393. See also Boxing Club, 358 U. S., at 249-250. Here respondents contend there are no substitutes.31 Other courts have limited the market to parts for a particular brand of equipment. See, e. g., International Logistics Group, Ltd. v. Chrysler Corp., 884 F.2d 904, 905, 908 (CA6 1989) (parts for Chrysler cars is the relevant market), cert. denied, 494 U. S. 1066 (1990); Dimidowich v. Bell & Howell, 803 F.2d 1473, 1480-1481, n. 3 (CA9 1986), modified, 810 F.2d 1517 (1987) (service for Bell & Howell equipment is the relevant market); In re General Motors Corp., 99 F. T. C. 464, 554, 584 (1982) (crash parts for General Motors cars is the relevant market); Heatransfer Corp. v. Volkswagenwerk A. G., 553 F.2d 964 (CA5 1977) (air conditioners for Volkswagens is the relevant market), cert. denied, 434 U. S. 1087 (1978).483tage, or to destroy a competitor." United States v. Griffith, 334 U. S. 100, 107 (1948). If Kodak adopted its parts and service policies as part of a scheme of willful acquisition or maintenance of monopoly power, it will have violated § 2. Grinnell Corp., 384 U. S., at 570-571; United States v. Aluminum Co. of America, 148 F.2d 416, 432 (CA2 1945); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, 600-605 (1985).32As recounted at length above, respondents have presented evidence that Kodak took exclusionary action to maintain its parts monopoly and used its control over parts to strengthen its monopoly share of the Kodak service market. Liability turns, then, on whether "valid business reasons" can explain Kodak's actions. Id., at 605; United States v. Aluminum Co. of America, 148 F. 2d, at 432. Kodak contends that it has three valid business justifications for its actions: "(1) to promote interbrand equipment competition by allowing Kodak to stress the quality of its service; (2) to improve asset management by reducing Kodak's inventory costs; and (3) to prevent ISOs from free-riding on Kodak's capital investment in equipment, parts and service." Brief for Petitioner 6. Factual questions exist, however, about the validity and sufficiency of each claimed justification, making summary judgment inappropriate.Kodak first asserts that by preventing customers from using ISO's, "it [can] best maintain high quality service for its sophisticated equipment" and avoid being "blamed for an equipment malfunction, even if the problem is the result of improper diagnosis, maintenance or repair by an ISO." Id., at 6-7. Respondents have offered evidence that ISO's provide quality service and are preferred by some Kodak equipment owners. This is sufficient to raise a genuine issue of32 It is true that as a general matter a firm can refuse to deal with its competitors. But such a right is not absolute; it exists only if there are legitimate competitive reasons for the refusal. See Aspen Skiing Co., 472 U. S., at 602-605.484fact. See International Business Machines Corp. v. United States, 298 U. S., at 139-140 (rejecting IBM's claim that it had to control the cards used in its machines to avoid "injury to the reputation of the machines and the good will of" IBM in the absence of proof that other companies could not make quality cards); International Salt Co. v. United States, 332 U. S. 392, 397-398 (1947) (rejecting International Salt's claim that it had to control the supply of salt to protect its leased machines in the absence of proof that competitors could not supply salt of equal quality).Moreover, there are other reasons to question Kodak's proffered motive of commitment to quality service; its quality justification appears inconsistent with its thesis that consumers are knowledgeable enough to lifecycle price, and its self-service policy. Kodak claims the exclusive-service contract is warranted because customers would otherwise blame Kodak equipment for breakdowns resulting from inferior ISO service. Thus, Kodak simultaneously claims that its customers are sophisticated enough to make complex and subtle life cycle-pricing decisions, and yet too obtuse to distinguish which breakdowns are due to bad equipment and which are due to bad service. Kodak has failed to offer any reason why informational sophistication should be present in one circumstance and absent in the other. In addition, because self-service customers are just as likely as others to blame Kodak equipment for breakdowns resulting from (their own) inferior service, Kodak's willingness to allow self-service casts doubt on its quality claim. In sum, we agree with the Court of Appeals that respondents "have presented evidence from which a reasonable trier of fact could conclude that Kodak's first reason is pretextual." 903 F.2d, at 618.There is also a triable issue of fact on Kodak's second justification-controlling inventory costs. As respondents argue, Kodak's actions appear inconsistent with any need to control inventory costs. Presumably, the inventory of parts485needed to repair Kodak machines turns only on breakdown rates, and those rates should be the same whether Kodak or ISO's perform the repair. More importantly, the justification fails to explain respondents' evidence that Kodak forced OEM's, equipment owners, and parts brokers not to sell parts to ISO's, actions that would have no effect on Kodak's inventory costs.Nor does Kodak's final justification entitle it to summary judgment on respondents' § 2 claim. Kodak claims that its policies prevent ISO's from "exploit[ing] the investment Kodak has made in product development, manufacturing and equipment sales in order to take away Kodak's service revenues." Brief for Petitioner 7-8. Kodak does not dispute that respondents invest substantially in the service market, with training of repair workers and investment in parts inventory. Instead, according to Kodak, the ISO's are freeriding because they have failed to enter the equipment and parts markets. This understanding of free-riding has no support in our case law.33 To the contrary, as the Court of Appeals noted, one of the evils proscribed by the antitrust laws is the creation of entry barriers to potential competitors by requiring them to enter two markets simultaneously. Jefferson Parish, 466 U. S., at 14; Fortner, 394 U. S., at 509.None of Kodak's asserted business justifications, then, are sufficient to prove that Kodak is "entitled to a judgment as33Kodak claims that both Continental T. V. and Monsanto support its free-rider argument. Neither is applicable. In both Continental T. V., 433 U. S., at 55, and Monsanto, 465 U. S., at 762-763, the Court accepted free-riding as a justification because without restrictions a manufacturer would not be able to induce competent and aggressive retailers to make the kind of investment of capital and labor necessary to distribute the product. In Continental T. V. the relevant market level was retail sale of televisions and in Monsanto retail sales of herbicides. Some retailers were investing in those markets; others were not, relying, instead, on the investment of the other retailers. To be applicable to this case, the ISO's would have to be relying on Kodak's investment in the service market; that, however, is not Kodak's argument.486SCALIA, J., dissentinga matter of law" on respondents' § 2 claim. Fed. Rule Civ. Proc. 56(c).IVIn the end, of course, Kodak's arguments may prove to be correct. It may be that its parts, service, and equipment are components of one unified market, or that the equipment market does discipline the aftermarkets so that all three are priced competitively overall, or that any anticompetitive effects of Kodak's behavior are outweighed by its competitive effects. But we cannot reach these conclusions as a matter of law on a record this sparse. Accordingly, the judgment of the Court of Appeals denying summary judgment is affirmed.It is so ordered

OCTOBER TERM, 1991SyllabusEASTMAN KODAK CO. v. IMAGE TECHNICAL SERVICES, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 90-1029. Argued December 10, 1991-Decided June 8, 1992After respondent independent service organizations (ISO's) began servicing copying and micrographic equipment manufactured by petitioner Eastman Kodak Co., Kodak adopted policies to limit the availability to ISO's of replacement parts for its equipment and to make it more difficult for ISO's to compete with it in servicing such equipment. Respondents then filed this action, alleging, inter alia, that Kodak had unlawfully tied the sale of service for its machines to the sale of parts, in violation of § 1 of the Sherman Act, and had unlawfully monopolized and attempted to monopolize the sale of service and parts for such machines, in violation of § 2 of that Act. The District Court granted summary judgment for Kodak, but the Court of Appeals reversed. Among other things, the appellate court found that respondents had presented sufficient evidence to raise a genuine issue concerning Kodak's market power in the service and parts markets, and rejected Kodak's contention that lack of market power in service and parts must be assumed when such power is absent in the equipment market.Held:1. Kodak has not met the requirements of Federal Rule of Civil Procedure 56(c) for an award of summary judgment on the § 1 claim. Pp. 461-479.(a) A tying arrangement-i. e., an agreement by a party to sell one product on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier-violates § 1 only if the seller has appreciable economic power in the tying product market. Pp.461-462.(b) Respondents have presented sufficient evidence of a tying arrangement to defeat a summary judgment motion. A reasonable trier of fact could find, first, that service and parts are two distinct products in light of evidence indicating that each has been, and continues in some circumstances to be, sold separately, and, second, that Kodak has tied the sale of the two products in light of evidence indicating that it would sell parts to third parties only if they agreed not to buy service from ISO's. Pp. 462-463.452Syllabus(c) For purposes of determining appreciable economic power in the tying market, this Court's precedents have defined market power as the power to force a purchaser to do something that he would not do in a competitive market, and have ordinarily inferred the existence of such power from the seller's possession of a predominant share of the market. P.464.(d) Respondents would be entitled under such precedents to a trial on their claim that Kodak has sufficient power in the parts market to force unwanted purchases of the tied service market, based on evidence indicating that Kodak has control over the availability of parts and that such control has excluded service competition, boosted service prices, and forced unwilling consumption of Kodak service. Pp. 464-465.(e) Kodak has not satisfied its substantial burden of showing that, despite such evidence, an inference of market power is unreasonable. Kodak's theory that its lack of market power in the primary equipment market precludes-as a matter of law-the possibility of market power in the derivative aftermarkets rests on the factual assumption that if it raised its parts or service prices above competitive levels, potential customers would simply stop buying its equipment. Kodak's theory does not accurately describe actual market behavior, since there is no evidence or assertion that its equipment sales dropped after it raised its service prices. Respondents offer a forceful reason for this discrepancy: the existence of significant information and switching costs that could create a less responsive connection between aftermarket prices and equipment sales. It is plausible to infer from respondents' evidence that Kodak chose to gain immediate profits by exerting market power where locked-in customers, high information costs, and discriminatory pricing limited, and perhaps eliminated, any long-term loss. Pp.465-478.(f) Nor is this Court persuaded by Kodak's contention that it is entitled to a legal presumption on the lack of market power because there is a significant risk of deterring procompetitive conduct. Because Kodak's service and parts policy is not one that appears always, or almost always, to enhance competition, the balance tips against summary judgment. Pp.478-479.2. Respondents have presented genuine issues for trial as to whether Kodak has monopolized, or attempted to monopolize, the service and parts markets in violation of § 2. Pp. 480-486.(a) Respondents' evidence that Kodak controls nearly 100% of the parts market and 80% to 95% of the service market, with no readily available substitutes, is sufficient to survive summary judgment on the first element of the monopoly offense, the possession of monopoly power. Kodak's contention that, as a matter of law, a single brand of a product453Full Text of Opinion

1962_76

MR. JUSTICE WHITE delivered the opinion of the Court.Upon a special verdict of the jury, the Common Pleas Court of Cuyahoga County, Ohio, entered judgment awarding damages to petitioner in this Federal Employers' Liability Act [Footnote 1] suit. The Court of Appeals reversed, 173 N.E.2d 382, and the Ohio Supreme Court refused further appellate review, 172 Ohio St. 488, 178 N.E.2d 597, making the decision of the intermediate appellate court the final judgment rendered by the state courts. This Court granted certiorari, 369 U.S. 848, to consider the question whether the decision below improperly invaded the jury's function. We have concluded that the decision below is erroneous, and must be reversed.Petitioner was a spotting crew foreman working on or about August 10, 1954, along the respondent railroad's right of way in the Cuyahoga River "flats" section of Cleveland, Ohio. At the particular stretch of roadbed where petitioner was working on that afternoon, there had been for many years a pool of stagnant water, in and about which were dead and decayed rats and pigeons, or portions thereof. Insects had been seen on, over, and about this stagnant pool, and the evidence showed, as the Court of Appeals stated, that respondent had long been aware of the fetid condition of this pool. 173 N.E.2d at 383. While he was temporarily working near the pool, petitioner experienced a bite on his left leg just above the knee. He grasped the spot with his hand and felt an object under his trousers which seemed to be a large insect and which, when he crushed it, dropped out of his trouser leg. The wound subsequently became infected. The infection failed to respond to medical treatment, and worsened progressively until it spread throughout petitioner's body, creating pus-forming lesions and eventually necessitating the amputation of both his legs. None of the Page 372 U. S. 110 doctors who treated and studied petitioner's case could explain the etiology of his present condition, although some of them diagnosed or characterized it as "pyodermagangrenosa, secondary to insect bite." See id. at 384.The Federal Employers' Liability Act makes railroads liable in damages to any employee suffering"injury or death resulting in whole or in part from the negligence of . . . [the] carrier, or by reason of any defect or insufficiency, due to its negligence, in its . . . roadbed . . . or other equipment."45 U.S.C. § 51. In his complaint, petitioner alleged respondent's negligence both in permitting the stagnant pool to accumulate dead vermin and attract insects, and in its furnishing a defective and unsafe place for petitioner's work. The respondent denied any negligence, and contended that, if petitioner's serious injuries resulted from an insect bite sustained while working on railroad property, such consequences "were beyond the realm of reasonable probability or foreseeability, with the result that no duty arose" to exercise due care to protect petitioner "from any such risk." 173 N.E.2d at 384.After a lengthy trial, the court, pursuant to the State's special verdict statute, Ohio Rev.Code, § 2315.15, under which no general verdict is rendered by the jury, submitted some two dozen interrogatories to the jury and charged them as to what it deemed the applicable law of negligence. The special verdict of the jury, to the extent that it is relevant here, follows (answers italicized):"10. On approximately August 10, 1954, was plaintiff bitten by an insect? Yes.""* * * *" "13. Did the defendant B & O, provide the plaintiff Mr. Gallick a reasonably safe place to work under the facts and circumstances existing at the time? Jury can't decide on this question.""14. [D]id the defendant B & O know that, by permitting the accumulation of said pool of stagnant Page 372 U. S. 111 water, dead pigeons, dead rats, bugs, and vermin would be attracted to said area? Yes.""15. If the answer to 14 is yes, did the defendant B & O know that its employees would have to work in this area? Yes.""16. Was the defendant negligent in one or more of the particulars alleged in the petition? Yes.""17. If the answer to Question 16 is yes, indicate in the words of the petition the acts or omissions which constitute defendant's negligence. There existed a pool of stagnant water on the premises in the possession of and under the control of defendant into which was accumulated dead pigeons, rats, and various forms of bugs and vermin.""18. Was the illness or diseases from which Mr. Gallick now suffers caused in whole or in part by an insect bite sustained by him on defendant B & O's premises? Yes.""19. Were the injuries to the plaintiff proximately caused . . . by . . . the acts or omissions of the defendant? Yes.""20. [W]as there any reason for the defendant B & O to anticipate that such [maintaining stagnant, infested pool] would or might probably result in a mishap or an injury? No.""21. Is there a proximate causal relationship to the stagnant water, the dead rats, the dead pigeons, the insect bite, and the present physical condition of the plaintiff? Yes.""22. If the answer to Question 21 is yes, was it within the realm of reasonable probability or foreseeability of the defendant B & O to appreciate this proximate causal relationship between the stagnant water, the dead rats, the dead pigeons, the insect bite and the present physical condition of the plaintiff? No. "Page 372 U. S. 112The trial court entered judgment for petitioner, and respondent appealed, assigning as error various trial rulings, none of which the Court of Appeals found "prejudicial to the rights of the appellant," except the fundamental one, in the court's view, that judgment for respondent should have been entered on a directed verdict because the trial evidence was insufficient to support a judgment for petitioner. [Footnote 2] The court said that the evidence showed that an insect bit petitioner and caused his severe injuries. It also found that "to maintain for a period of years a stagnant, vermin-infested pool of water on and over which insects gather," on property where the railroad's employees were required to work "could furnish the gravamen of an offense [sic] under the Federal Employers' Liability Act." 173 N.E.2d at 387. The court emphasized, however, that there was no"direct evidence that the existence of the unidentified bug at the time and place had any connection with the stagnant and infested pool,"or had become infected by the pool with the substance that caused petitioner's infection, evidence which would negative the alternative possibility that the insect had emanated from"the nearby putrid mouth of the Cuyahoga River, or from weeds, or unsanitary places situated on property not owned or controlled by the railroad."The Court of Appeals therefore deemed the evidence merely "a series of guesses and speculations . . . a chain of causation too tenuous . . . to support a conclusion of liability." Id. at 388."[W]e have a chain of possibilities that the negligence of the defendant might have shared in subjecting the plaintiff to damage and injury, but the proof of a legal causal connection between the negligence and the damage falls short of Page 372 U. S. 113 that required for the consideration of a jury."Ibid. Accordingly, it reversed the judgment of the Court of Common Pleas and entered final judgment for respondent.IWe think that the Court of Appeals improperly invaded the function and province of the jury in this Federal Employers' Liability Act case. According to the Court of Appeals, the break in the causal chain that turned it into a mere "series of guesses and speculations" was the want of evidence from which the jury could properly conclude that respondent's fetid pool had had something to do with the insect that bit petitioner. The only question was whether or not the insect was from or had been attracted by the pool. We hold that the record shows sufficient evidence to warrant the jury's conclusion that petitioner's injuries were caused by the acts or omissions of respondent.As the Court of Appeals stated, "insects were seen on, over and about this stagnant pool." According to petitioner's undisputed testimony, he stood near the pool for about a half a minute; then he started to walk away, and was bitten on the leg after he took a few steps, perhaps one or two seconds later. Petitioner also testified, on cross-examination, that he had at times seen insects of about the same size as that which bit him crawling over the dead rats and pigeons in the stagnant pool. And, on cross-examination by respondent, two medical witnesses testified that stagnant, rat-infested pools breed and attract insects. [Footnote 3] Moreover, the jury specifically found that the pool accumulated and attracted bugs and vermin. Page 372 U. S. 114The Court of Appeals erred in demanding either "direct evidence that the existence of the unidentified bug at the time and place had any connection with the stagnant and infested pool" or else more substantial circumstantial evidence than that adduced here"that the pool created conditions and influences which helped to incubate of furnish an environment for the bug . . . or that the insect, having traveled from other areas, became contaminated or infected by the pool."173 N.E.2d at 388. Under the ruling cases in this Court, the evidence present was sufficient to raise an issue for the jury's determination as to whether the insect emanated from the pool.In Tennant v. Peoria & P.U. R. Co., 321 U. S. 29, one of the leading cases, the Court granted certiorari "because of important problems as to petitioner's right to a jury determination of the issue of causation." There was no direct evidence of how the decedent was killed. There was evidence that the respondent railroad had been negligent or careless in failing to ring a warning bell before moving an engine, and evidence that the victim was killed by being run over by a train. The question of how the victim met his death was susceptible to various answers, all somewhat conjectural because of the want of direct evidence, some of which supported petitioner's claims and others respondent's. The Court of Appeals set aside a jury verdict for petitioner for failure of the evidence to make out proximate cause, but this Court reversed:"It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that Page 372 U. S. 115 the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the factfinding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U. S. 554, 135 U. S. 571-572; Tiller v. Atlantic Coast Line R. Co., supra, 318 U. S. 68; Bailey v. Central Vermont Ry., 319 U. S. 350, 319 U. S. 353-354. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable."321 U.S. at 321 U. S. 35.Later Federal Employers' Liability Act cases involving sufficiency of the evidence on causation where several explanations are plausible follow the teaching of the Tennant case. In Schulz v. Pennsylvania R. Co., 350 U. S. 523, a tug fireman was drowned in undetermined circumstances arising from his "work on . . . dark, icy and undermanned boats"; the lower court said: "There is some evidence of negligence, and there is an accidental death. But there is not a shred of evidence connecting the two." This Court held that there was sufficient evidence of causation to require submission of the case to the jury. Lavender v. Kurn, 327 U. S. 645, was another Federal Employers' Liability Act case in which it was uncertain which of various alternative explanations Page 372 U. S. 116 for the cause of the injury was correct. Petitioner's theory was that a mail-hook protruding from a train had hit the victim, while respondent's theory was that an unknown murderer was responsible. Both theories were plausible; the jury found for petitioner, but the lower Court reversed for insufficient evidence. This court reversed on the ground that the lower appellate court had committed "an undue invasion of the jury's historic function."These cases, as does the instant case, all involved the question of whether there was evidence that any employer negligence caused the harm, or, more precisely, enough to justify a jury's determination that employer negligence had played any role in producing the harm. In the more recent case, Rogers v. Missouri Pac. R. Co., 352 U. S. 500, one of the questions was whether, given the antecedent negligence or carelessness of the employer in maintaining a roadside surface with loose, slippery gravel instead of a firm, flat footing, the causal impact of such neglectfulness was negatived by the subsequent or concurrent negligence of the employee in failing to pay attention to what he was supposed to be doing. Although the context is thus somewhat dissimilar to the present one, the language used in the opinion is most apposite:"Under this statute, the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part . . . in producing the injury. . . . It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes. . . . Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury Page 372 U. S. 117 or death. Judges are to fix their sights primarily to make that appraisal, and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities."352 U.S. at 352 U. S. 506-507.The facts before the jury fall within this standard and the Court of Appeals therefore erred in refusing to accept the jury's verdict.IIAlthough we have concluded that the jury could properly find that there was a causal relationship between the railroad's negligence and petitioner's injuries, that does not end the case. [Footnote 4] Respondent makes the further argument that the judgment under review may be sustained on the alternative ground, not accepted by the Court of Appeals, that the injury was not reasonably foreseeable, and that therefore there was no negligence.We agree with respondent that reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence. Inman v. Baltimore & O. R. Co., 361 U. S. 138, 361 U. S. 140; see Brady v. Southern R. Co., 320 U. S. 476, 320 U. S. 483-484; Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 318 U. S. 67; Ringhiser v. Chesapeake & O. R. Co., 354 U. S. 901, 903, 354 U. S. 905 (dissenting opinions); Rogers v. Missouri Pac. R. Co., 352 U. S. 500, 352 U. S. 503; cf. Morales v. City of Galveston, 370 U. S. 165, 370 U. S. 171; Dalehite v. United States, 346 U. S. 15, 346 U. S. 42. [Footnote 5] But this requirement has been satisfied in the Page 372 U. S. 118 present case by the jury's findings (Nos. 10, 14-19, 21) of negligence in maintaining the filthy pool of water. The jury had been instructed that negligence is the failure to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances, [Footnote 6] and that defendant's duty was measured by what a reasonably prudent person would anticipate as resulting from a particular condition -- "defendant's duties are measured by what is reasonably foreseeable under like circumstances" -- by what "in the light of the facts then known, should or could reasonably have been anticipated." [Footnote 7] Thus, when the jury found these facts: petitioner was bitten by an insect; the insect bite caused illness or disease and led to petitioner's present physical condition; the stagnant pool attracted bugs and vermin and was responsible for the insect bite and the injuries to petitioner; and respondent knew that the accumulation of the pool of water would attract bugs and Page 372 U. S. 119 vermin to the area -- it is clear that the jury concluded that respondent should have realized the increased likelihood of an insect's biting petitioner while he was working in the vicinity of the pool.Respondent places reliance, however, upon two special interrogatories returned by the jury. In one, No. 22, the jury found that respondent could not foresee that the stagnant pool would set into being a chain of events that would culminate in petitioner's present physical condition -- loss of two limbs, widespread ulcerations, and permanent disability. In the other, No. 20, the jury found that respondent did not have reason to anticipate that its maintenance of the pool "would or might probably result in a mishap or an injury." It is said that interrogatories Nos. 20 and 22 are findings of no foreseeability, and that there is therefore a fatal inconsistency among the jury's findings, and that they cancel one another out, necessitating a judgment for the defendant, or at least a new trial. See Freightways, Inc. v. Stafford, 217 F.2d 831, 835 (C.A.8th Cir.); Fed.Rules Civ.Proc. 49(b). See also Larrissey v. Norwalk Lines, 155 Ohio St. 207, 214-215, 98 N.E.2d 419, 423-424; Klever v. Reid Bros., 151 Ohio St. 467, 476, 86 N.E.2d 608, 612. But it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them: "Where there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way." Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U. S. 355, 369 U. S. 364. We therefore must attempt to reconcile the jury's findings, by exegesis if necessary, as in Arnold v. Panhandle & S.F. R. Co., 353 U. S. 360; McVey v. Phillips Petroleum Co., 288 F.2d 53 (C.A.5th Cir.); Morris v. Pennsylvania R. Co., 187 F.2d 837 (C.A.2d Cir.) (collecting authorities), before we are free to disregard the jury's special verdict and remand the case for a new trial. Page 372 U. S. 120We do not believe that the conclusion of fatal inconsistency is compelled by these findings. In the first place, the jury might not have equated a foreseeable insect bite with a mishap or injury. The trial judge more than once in his instructions separated an "insect bite" from "injury," "infection," "illness" or "disease." The answer to Question 20 thus might mean simply that, while an insect bits was foreseeable, there was no reason to anticipate a "mishap" or "injury" from such a bite. This answer therefore falls in the same category as the jury's response to Question 22, where the jury found that there was no reasonably foreseeable causal relationship between the insect bite and the present physical condition of the plaintiff. It is widely held that, for a defendant to be liable for consequential damages, he need not foresee the particular consequences of his negligent acts: assuming the existence of a threshold tort against the person, then whatever damages flow from it are recoverable. See, e.g., Boal v. Electric Battery Co., 98 F.2d 815, 819 (C.A.3d Cir.); Koehler v. Waukesha Milk Co., 190 Wis. 52, 57-63, 208 N.W. 901, 903-905 (collecting authorities); Restatement, Torts, § 435; 2 Harper and James, Torts, 1139-1140; Prosser, Torts, 260 (2d ed.); Seavey, Mr. Justice Cardozo and the Law of Torts, 48 Yale L.J. 390, 402-403. [Footnote 8] And we have no doubt that, under a statute, where the tortfeasor is liable for death or injuries in producing which his Page 372 U. S. 121 "negligence played any part, even the slightest" (Rogers v. Missouri Pac. R. Co., 352 U. S. 500, 352 U. S. 506) such a tortfeasor must compensate his victim for even the improbable or unexpectedly severe consequences of his wrongful act. Cf. Kernan v. American Dredging Co., 355 U. S. 426; Coray v. Southern Pac. Co., 335 U. S. 520; Lillie v. Thompson, 332 U. S. 459. The answers to these two interrogatories are therefore not controlling for Federal Employers' Liability Act purposes.In the second place, in deciding whether respondent had reason to anticipate and foresee any harm to petitioner, the trial court instructed the jury to take into account "the past experience respecting the location and conditions in question" and the fact"that no occurrence of the kind here alleged either occurred, or was known by defendant to have occurred, at or near this place before August of 1954. [Footnote 9]"The jury thus might have determined that, since there had been no similar incidents at this pool in the past, the respondent had no specific "reason" for anticipating a mishap or injury to petitioner -- a far too narrow a concept of foreseeable harm to negative negligence under the Federal Employers' Liability Act. Thus, there is a second and independent ground for the court to have put aside No. 20 as immaterial. Looking at No. 20 in the context of the charge and the total context of the special verdict, see McVey v. Phillips Petroleum Co., 288 F.2d 53, 59 (C.A.5th Cir.); Halprin v. Mora, 231 F.2d 197, 201 Page 372 U. S. 122 (C.A.3d Cir.), we cannot assign it sufficient weight to warrant overturning the judgment of the trial court entered pursuant to the jury's special verdict.We have examined respondent's other contentions and found them without merit, including the contention that there was insufficient evidence to support the finding of negligence. The Court of Appeals erred in depriving petitioner of the judgment entered upon the special verdict of the jury. Arnold v. Panhandle & S.F. R. Co., 353 U. S. 360. The judgment of the Ohio Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtGallick v. Baltimore & Ohio R. Co., 372 U.S. 108 (1963)Gallick v. Baltimore & Ohio R. Co.No. 76Argued December 10, 1962Decided February 18, 1963372 U.S. 108SyllabusWhile working on a railroad near a stagnant, vermin-infested pool of water, petitioner suffered an insect bite which became infected and ultimately resulted in the loss of both of his legs. He sued the railroad in a state court under the Federal Employers' Liability Act, alleging that the railroad was negligent in maintaining a stagnant pool that attracted vermin and insects. Upon a special verdict of the jury, the trial court entered judgment awarding damages to petitioner. The state appellate court reversed on the ground that proof of a causal connection between the negligence and damage fell short of that required for the consideration of a jury.Held: the state appellate court improperly invaded the function and province of the jury, and its judgment is reversed. Pp. 372 U. S. 109-122.(a) The record contains sufficient evidence to warrant the jury's conclusion that petitioner's injuries were caused by the acts or omissions of the railroad, and the state appellate court erred in refusing to accept the jury's verdict. Pp. 372 U. S. 113-117.(b) Reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence, but this requirement was satisfied in the present case by the jury's findings of negligence in maintaining the filthy pool of water. Pp. 372 U. S. 117-119.(c) There was no fatal inconsistency in the jury's findings. Pp. 372 U. S. 119-122.173 N.E.2d 382, reversed. Page 372 U. S. 109

1997_96-1370

completed the steps necessary to perfect its interest, so that a creditor may invoke the enabling loan exception only by satisfying state-law perfection requirements within the 20day period provided by the federal statute.IOn August 17, 1994, Diane Beasley purchased a 1994 Ford and gave petitioner, Fidelity Financial Services, Inc., a promissory note for the purchase price, secured by the new car. Twenty-one days later, on September 7, 1994, Fidelity mailed the application necessary to perfect its security interest addressed to the Missouri Department of Revenue. See Mo. Rev. Stat. § 301.600(2) (1994).1Two months after that, Beasley sought relief under Chapter 7 of the Bankruptcy Code. After the proceeding had been converted to one under Chapter 13, respondent, Richard V. Fink, the trustee of Beasley's bankruptcy estate, moved to set aside Fidelity's security interest. He argued that the lien was a voidable preference, the enabling loan exception being inapposite because Fidelity had failed to perfect its interest within 20 days after Beasley received the car. Fidelity responded that Missouri law treats a lien on a motor vehicle as having been "perfected" on the date of its creation (in this case, within the 20-day period), if the creditor files the necessary documents within 30 days after the debtor takes possession. Mo. Rev. Stat. § 301.600(2) (1994).The Bankruptcy Court set aside the lien as a voidable preference, holding that Missouri's relation-back provision1 Whether the mailing was sufficient to perfect the interest is an issue of state law not raised by this case. In speaking below of acts necessary to perfect a security interest under state law, we mean whatever acts must be done to effect perfection under the terms of the applicable state statute, whether those be acts of a creditor or acts of a governmental employee delivering or responding to a creditor's application. As will be seen, the time within which those acts must be done is governed by federal, not state, law, when the issue is the voidability of a preference under the Bankruptcy Code.214could not extend the 20-day perfection period imposed by § 547(c)(3)(B). In re Beasley, 183 B. R. 857 (Bkrtcy. Ct. WD Mo. 1995). Fidelity appealed to the United States District Court for the Western District of Missouri, which affirmed on substantially the same grounds, as did the Court of Appeals for the Eighth Circuit, holding a transfer to be perfected "when the transferee takes the last step required by state law to perfect its security interest." 102 F.3d 334, 335 (1996) (per curiam) (internal quotation marks omitted).We granted certiorari, 520 U. S. 1209 (1997), to resolve a conflict among the Circuits over the question when a transfer is "perfected" under § 547(c)(3)(B).2 We affirm.IIWithout regard to whether Fidelity's lien is a preference under § 547(b), Fink cannot avoid the lien if it falls within the enabling loan exception of § 547(c)(3), one requirement of which is that the transfer of the interest securing the lien be "perfected on or before 20 days after the debtor receives possession." 11 U. S. C. § 547(c)(3)(B). Perfection turns on the definition provided by § 547(e)(1)(B), that "a transfer of ... property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee."Like the Courts of Appeals that have adopted its position, see n. 2, supra, Fidelity sees in subsection (c)(3)(B) not only a federal guarantee that a creditor will have 20 days to act, but also a reflection of state law that deems perfection within2 Compare In re Locklin, 101 F.3d 435, 442 (CA5 1996) (holding that § 547(c)(3)(B) perfection period prevails over a longer grace period provided by state law); In re Walker, 77 F.3d 322, 323-324 (CA9 1996) (same); and In re Hamilton, 892 F.2d 1230, 1234-1235 (CA5 1990) (same), with In re Hesser, 984 F.2d 345, 348-349 (CAlO 1993) (holding that a transfer is perfected under § 547(c)(3)(B) as of the date that the creditor's lien has priority under state law), and In re Busenlehner, 918 F.2d 928, 930-931 (CA111990) (same), cert. denied sub nom. Moister v. General Motors Acceptance Corp., 500 U. S. 949 (1991).215a statutory grace or relation-back period to be perfection as of the creation of the underlying security interest. Under Missouri law, for example, a "lien or encumbrance on a motor vehicle ... is perfected by the delivery [of specified documents] to the director of revenue," Mo. Rev. Stat. § 301.600(2) (1994), but the date of the lien's perfection is "as of the time of its creation if the delivery of the aforesaid to the director of revenue is completed within thirty days thereafter, otherwise as of the time of the delivery." Ibid. Thus, Fidelity contends that although it delivered the required documents more than 20 days after Beasley received the car, its lien must be treated as perfected on the day of its creation because it delivered the papers within the 30 days allowed by state law to qualify for the relation-back advantage. If this is sound reasoning, Fidelity's lien was perfected on August 17, 1994, the very day that Beasley drove away in her Ford, and Fidelity may invoke § 547(c)(3)'s enabling loan exception.3The assumption that the term "perfected" as used in subsection (c)(3)(B) and defined in subsection (e)(l)(B) may refer to the relation-back date is not to be made so easily, however. It is quite certain, to begin with, that in the relevant context Congress sometimes used the word "perfection" to mean the legal conclusion that for such purposes as calculating priorities perfection of a lien should be treated as if it had occurred on a particular date, and sometimes used it to refer to the acts necessary to support that conclusion. Section 546(b)(1)(A) speaks of state laws that permit "perfection ... to be effective ... before the date of perfection." 11 U. S. C.3 As Fidelity suggested in passing at oral argument, see Tr. of Oral Arg. 22-23, its reading of the term "perfected" in § 547(e)(1)(B) would carry another consequence. If the lien were "perfected" under that provision as of the date of its creation, the transfer would presumably be treated as having taken place on that date, 11 U. S. C. § 547(e)(2)(A), outside the 90day preference period set forth in § 547(b)(4)(A), and would not have been a voidable preference at all.216§ 546(b)(1)(A). The distinction implicit in speaking of "perfection" antecedent to the "date of perfection" shows that Congress was thinking about the difference between the legal conclusion that may be entailed by applying a relationback rule and, on the other hand, the acts taken to trigger an application of the rule.Knowing that Congress understood "perfection" in these two different senses, one can see how Fidelity's construction of § 547(e)(1)(B) is a poor fit with the text. Although Fidelity and two Courts of Appeals have thought this provision means that a transfer is perfected as of whatever date an enabling creditor could claim in a priority fight with a contract creditor armed with a judicial lien, the statute does not speak in such terms. Rather, it says that a transfer is perfected "when" a contract creditor "cannot acquire" a superior lien. "[W]hen" and "cannot acquire" are ostensibly straightforward references to time and action in the real world, not tipoffs (like the terms "as if" and "deemed") that the clock is being turned back in some legal universe. A creditor "can" acquire such a lien at any time until the secured party performs the acts sufficient to perfect its interest. Such a lien would, of course, lose its priority if, during the relation-back period, the secured party performed those acts; such a possibility does not mean that a contract creditor "cannot" acquire such a lien, however, but merely that its superiority may be fleeting. Not until the secured party actually performs the final act that will perfect its interest can other creditors be foreclosed conclusively from obtaining a superior lien. It is only then that they "cannot" acquire such a lien. Thus, the terms of § 547(e)(1)(B) apparently imply that a transfer is "perfected" only when the secured party has done all the acts required to perfect its interest, not at the moment as of which state law may retroactively deem that perfection effective.A variety of considerations support this conclusion.First, a related provision of the Bankruptcy Code raises a217negative implication to the effect that Congress did not intend state relation-back provisions or grace periods to control a trustee's power to avoid preferences. Section 546 of the Code puts certain limits on the avoidance powers set forth elsewhere, as in the provision of § 546(b)(1)(A) that the "rights and powers of a trustee under sections 544, 545, and 549 of this title are subject to any generally applicable law that ... permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection." Not only does the series skip from §545 to §549, but the omission of §547 becomes all the more pointed when read against the other subsections of § 546, all of which refer explicitly to powers and proceedings under § 547. See 11 U. S. C. §§ 546(a), (c)-(g). So, it is hard to resist the implication that Congress quite specifically intended a trustee's power to avoid prepetition preferences to prevail over any state rules permitting relation back.There is further support for this reading in the circumstances of the 1994 amendment to the Bankruptcy Code that extended the perfection period under § 547(c)(3)(B) from 10 to 20 days. See Bankruptcy Reform Act of 1994, § 203(1), Pub. L. 103-394, 108 Stat. 4122. At the time this legislation was passed, most States had some version of Article 9-301(2) of the Uniform Commercial Code, which provides that"[i]f the secured party files with respect to a purchase money security interest before or within ten days after the debtor receives possession of the collateral, he takes priority over the rights of a transferee in bulk or of a lien creditor which arise between the time the security interest attaches and the time of filing." Uniform Commercial Code § 9-301(2), 3A U. L. A. 10 (1992).Forty-two States had adopted modifications extending the grace period to 20 days or more after the debtor's first possession of the collateral. See Uniform Commercial Code § 9-301, 3A U. L. A. 10, 14-15 (1992 and Supp. 1997); Cal.218Com. Code Ann. § 9301(2) (West Supp. 1997); R. 1. Gen. Laws § 6A-9-301(2) (1992).Under Fidelity's view of the way § 547(c)(3) acts together with state law, a creditor in any of those States could have perfected its security interest between the 10th and the 20th day and still have complied with the 10-day deadline in the pre-1994 version of the Bankruptcy Code. Indeed, on Fidelity's view, the only States in which antecedent perfection would not have been recognized under the old federal10-day period would have been States with no relation-back period at all (of which there was none), or States in which relation back went only to the 11th (or a later) day after creation (of which, it is not surprising to learn, there also was none), or States in which the time for acting under the relation-back rule was less than 20 days (of which there were only eight, plus Guam and the District of Columbia). If Congress had shared Fidelity's view of the federal 10-day provision, then the 1994 amendment would have accomplished very little, extending the period only in those few States that lacked a 20-day grace period. And, of course, it is hard to understand why Congress would have wanted to do that. The change would not have brought uniformity to federal bankruptcy practice, for on Fidelity's view a State could have chosen a longer period (and, in the context of motor vehicles, at least some have done so, see, e. g., W. Va. Code § 17 A-4A4(a) (1996) (providing 60-day period)). The net effect of the 1994 amendment would thus have been merely to benefit a class of creditors in only eight States, Guam, and the District of Columbia, jurisdictions which could have looked out for their own creditors if they had chosen to do so. It is not easy to imagine that Congress meant to accomplish nothing more, and nothing uniform, by its effort.Driven to the last ditch, Fidelity relies on an isolated piece of legislative history. On the floor of the Senate one day in April 1994, during consideration of the Bankruptcy Reform Act of 1993, a bill which was never enacted but which had a219provision identical to the 1994 amendment that extended the § 547(c)(3)(B) perfection period to 20 days, Senators Heflin and Sasser appeared to address the issue now before us.4 During their colloquy, the Senators agreed that "although there is no statutory language to codify [the Eleventh Circuit's decision in In re Busenlehner and the Tenth Circuit's decision in In re Hesser], they are consistent with Federal bankruptcy law." 140 Congo Rec. 8035 (1994) (remarks of Sen. Sasser). Senator Heflin thought it "appropriate at this time for the Senate to state its intent to confirm the interpretations of these circuits." Ibid. Fidelity takes this exchange as indicating that in passing the 1994 amendment Congress meant to enact the holdings of the Tenth and Eleventh Circuits that the term "perfected" in § 547(c)(3)(B) may refer to the conclusion provided by a relation-back rule, not only to the creditor's act of filing.But the colloquy supports no such argument. Senator Heflin began it by describing the enabling loan exception and noting that the proposed amendment would extend the "[f]ederal time period from 10 to 20 days." Ibid. Senator Sasser responded that he thought it "advisable to clarify a related issue that has caused unnecessary litigation throughout the country." Ibid. Senator Sasser later stated that he was "[c]larifying that 'relation back' statutes are consistent with the Federal law." Ibid. These remarks reflect the Senators' understanding that they were not discussing the effect of any legislative proposal before them. Indeed, as we have seen, "perfection" is defined elsewhere and the Senate was not addressing the definition provision. The Senators were simply using the occasion to offer their own views on existing law, a conclusion underscored by Senator Sasser's observation that "there is no statutory language to codify these court cases." Ibid.4 We say "appeared" because the colloquy is not free of ambiguity. See 140 Congo Rec. 8035 (1994). For the sake of argument, we treat it in the light most favorable to Fidelity.220Whatever weight some Members of this Court might accord to floor statements about proposals actually under consideration, remarks that purport to clarify "related" areas of the law can have little persuasive force, and in this case none at all. For the Senators' remarks were not only at odds with the governing text but also with the current of the broader statutory history of the preference provisions, which persuasively suggests that Congress intended § 547(c)(3)(B) to establish a uniform federal perfection period immune to alteration by state laws permitting relation back. The former version of the preference provisions, § 60 of the previous Bankruptcy Act, referred explicitly to state law in determining when a transfer occurred. It first provided a general rule that a transfer of an interest in personal property occurred "when it became so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee." 11 U. S. C. § 96(a)(2) (1964 ed.). But it then subjected this general rule to the exceptions that"[w]here (A) the applicable law specifies a stated period of time of not more than twenty-one days after the transfer within which recording, delivery, or some other act is required, and compliance therewith is had within such stated period of time; or where (B) the applicable law specifies no such stated period of time or where such stated period of time is more than twentyone days, and compliance therewith is had within twenty-one days after the transfer, the transfer shall be deemed to be made or suffered at the time of the transfer." § 96(a)(7)(I).Thus, a transfer was deemed to have occurred on the date of the transaction that gave rise to it, not on the later date of "recording, delivery, or ... other act," so long as the creditor had complied with state relation-back law within 21 days. But even this former version of the Act, which explicitly221looked to state-law rules to determine the effective date of transfer, did not allow those rules to extend the creditor's opportunity to act beyond the uniform outer time limit that it provided. In light of this history, we see no basis to say that subsequent amendments removing references to statelaw options had the counterintuitive effect of deferring to such options even beyond what the old law would have done.In short, the text, structure, and history of the preference provisions lead to the understanding that a creditor may invoke the enabling loan exception of § 547(c)(3) only by acting to perfect its security interest within 20 days after the debtor takes possession of its property.***Accordingly, we affirm the judgment of the Court of Appeals for the Eighth Circuit.It is so ordered

OCTOBER TERM, 1997SyllabusFIDELITY FINANCIAL SERVICES, INC. v.FINK, TRUSTEECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 96-1370. Argued November 3, 1997-Decided January 13, 1998Diane Beasley purchased a new car and gave petitioner, Fidelity Financial Services, Inc., a promissory note for the purchase price, secured by the car. Twenty-one days later, Fidelity mailed the application necessary to perfect its security interest under Missouri law. Beasley later filed for bankruptcy, and the trustee of her bankruptcy estate, respondent Fink, moved to set aside Fidelity's security interest on the ground that the lien was a voidable preference under 11 U. S. C. § 547(b). Section 547(c)(3)(B) prohibits the avoidance of a security interest for a loan used to acquire property if, among other things, the security interest is "perfected on or before 20 days after the debtor receives possession of such property." Fink argued that this "enabling loan" exception was inapposite because Fidelity had not perfected its interest within the 20-day period. Fidelity responded that Missouri law treats a motor vehicle lien as having been "perfected" on the date of its creation (in this case, within the 20-day period), if the creditor files the necessary documents within 30 days after the debtor takes possession. The Bankruptcy Court set aside the lien as a voidable preference, holding that Missouri's relation-back provision could not extend § 547(c)(3)(B)'s 20-day perfection period. The District Court affirmed on substantially the same grounds, as did the Eighth Circuit, holding a transfer to be perfected when the transferee takes the last step required by state law to perfect its security interest.Held: A transfer of a security interest is "perfected" under § 547(c)(3)(B) on the date that the secured party has completed the steps necessary to perfect its interest, so that a creditor may invoke the enabling loan exception only by satisfying state-law perfection requirements within the 20-day period provided by the federal statute. Section 547(e)(I)(B) provides that "a transfer of ... property ... is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee." This definition implies that a transfer is "perfected" only when the secured party has done all the acts required to perfect its interest, not at the moment as of which state law may retroactively deem that perfection effective. A variety of considerations support this conclusion, including § 546, which raises a negative212implication that Congress did not intend state relation-back provisions or grace periods to control a trustee's power to avoid preferences, and the fact that, under Fidelity's reading, the net effect of the 1994 amendment extending the § 547(c)(3)(B) perfection period from 10 to 20 days would be merely to benefit a class of creditors in only 10 jurisdictions. Indeed, the broader statutory history of the preference provisions persuasively suggests that Congress intended § 547(c)(3)(B) to establish a uniform federal perfection period immune to alteration by state laws permitting relation back. Thus, the statutory text, structure, and history lead to the understanding that a creditor may invoke the enabling loan exception only by acting to perfect its security interest within 20 days after the debtor takes possession of its property. Pp. 214-221.102 F.3d 334, affirmed.SOUTER, J., delivered the opinion for a unanimous Court.Michael P. Gaughen argued the cause and filed a brief for petitioner.Richard v: Fink, respondent, pro se, argued the cause and filed a brief. *JUSTICE SOUTER delivered the opinion of the Court. Although certain transfers made before the filing of a petition in bankruptcy may be avoided as impermissibly preferential, a trustee may not so displace a security interest for a loan used to acquire the encumbered property if, among other things, the security interest is "perfected on or before 20 days after the debtor receives possession of such property." 11 U. S. C. § 547(c)(3)(B). The question in this case is whether a creditor may invoke this "enabling loan" exception if it performs the acts necessary to perfect its security interest more than 20 days after the debtor receives the property, but within a relation-back or grace period provided by the otherwise applicable state law. We answer no and hold that a transfer of a security interest is "perfected" under § 547(c)(3)(B) on the date that the secured party has* James A. Pardo, Jr., filed a brief for the American Automobile Manufacturers Association et al. as amici curiae urging reversal.213Full Text of Opinion

1978_77-6431

MR. JUSTICE POWELL delivered the opinion of the Court.The appellant, Abdiel Caban, challenges the constitutionality of § 111 of the New York Domestic Relations Law (McKinney Page 441 U. S. 382 1977), under which two of his natural children were adopted by their natural mother and stepfather without his consent. We find the statute to be unconstitutional, as the distinction it invariably makes between the rights of unmarried mothers and the rights of unmarried fathers has not been shown to be substantially related to an important state interest.IAbdiel Caban and appellee Maria Mohammed lived together in New York City from September, 1968, until the end of 1973. During this time, Caban and Mohammed represented themselves as being husband and wife, although they never legally married. Indeed, until 1974, Caban was married to another woman, from whom he was separated. While living with the appellant, Mohammed gave birth to two children: David Andrew Caban, born July 16 1969, and Denise Caban, born March 12, 1971. Abdiel Caban was identified as the father on each child's birth certificate, and lived with the children as their father until the end of 1973. Together with Mohammed, he contributed to the support of the family.In December, 1973, Mohammed took the two children and left the appellant to take up residence with appellee Kazin Mohammed, whom she married on January 30, 1974. For the next nine months, she took David and Denise each weekend to visit her mother, Delores Gonzales, who lived one floor above Caban. Because of his friendship with Gonzales, Caban was able to see the children each week when they came to visit their grandmother.In September, 1974, Gonzales left New York to take up residence in her native Puerto Rico. At the Mohammeds' request, the grandmother took David and Denise with her. According to appellees, they planned to join the children in Puerto Rico as soon as they had saved enough money to start a business there. During the children's stay with their grandmother, Mrs. Mohammed kept in touch with David and Page 441 U. S. 383 Denise by mail; Caban communicated with the children through his parents, who also resided in Puerto Rico. In November, 1975, he went to Puerto Rico, where Gonzales willingly surrendered the children to Caban with the understanding that they would be returned after a few days. Caban, however, returned to New York with the children. When Mrs. Mohammed learned that the children were in Caban's custody, she attempted to retrieve them with the aid of a police officer. After this attempt failed, the appellees instituted custody proceedings in the New York Family Court, which placed the children in the temporary custody of the Mohammeds and gave Caban and his new wife, Nina, visiting rights.In January, 1976, appellees filed a petition under § 110 of the New York Domestic Relations Law to adopt David and Denise. [Footnote 1] In March, the Cabans cross-petitioned for adoption. After the Family Court stayed the custody suit pending the outcome of the adoption proceedings, a hearing was held on the petition and cross-petition before a Law Assistant to a New York Surrogate in Kings County, N.Y. At this hearing, both the Mohammeds and the Cabans were represented by counsel and were permitted to present and cross-examine witnesses.The Surrogate granted the Mohammeds' petition to adopt the children, thereby cutting off all of appellant's parental Page 441 U. S. 384 rights and obligations. [Footnote 2] In his opinion, the Surrogate noted the limited right under New York law of unwed fathers in adoption proceedings:"Although a putative father's consent to such an adoption is not a legal necessity, he is entitled to an opportunity to be heard in opposition to the proposed stepfather adoption."Moreover, the court stated that the appellant was foreclosed from adopting David and Denise, as the natural mother had withheld her consent. Thus, the court considered the evidence presented by the Cabans only insofar as it reflected upon the Mohammeds' qualifications as prospective parents. The Surrogate found them well qualified, and granted their adoption petition.The New York Supreme Court, Appellate Division, affirmed. It stated that appellant's constitutional challenge to § 111 was foreclosed by the New York Court of Appeals' decision in In re Malpica-Orsini, 36 N.Y.2d 568, 331 N.E.2d 486 (1975), appeal dism'd for want of substantial federal question sub nom. Orsini v. Blasi, 423 U.S. 1042 (1976). In re David Andrew C., 56 App.Div.2d 627, 391 N.Y.S.2d 846 (1977). The New York Court of Appeals dismissed the appeal in a Page 441 U. S. 385 memorandum decision based on In re Malpica-Orsini, supra. In re David A.C., 43 N.Y.2d 708, 372 N.E.2d 42 (1977).On appeal to this Court, appellant presses two claims. First, he argues that the distinction drawn under New York law between the adoption rights of an unwed father and those of other parents violates the Equal Protection Clause of the Fourteenth Amendment. Second, appellant contends that this Court's decision in Quilloin v. Walcott, 434 U. S. 246 (1978), recognized the due process right of natural fathers to maintain a parental relationship with their children, absent a finding that they are unfit as parents. [Footnote 3]IISection 111 of the N.Y.Dom.Rel.Law (McKinney 1977) provides in part that"consent to adoption shall be required as follows: . . . (b) Of the parents or surviving parent, whether adult or infant, of a child born in wedlock; [and] (c) Of the mother, whether adult or infant, of a child born out of wedlock. . . ."The statute makes parental consent unnecessary, however, in certain cases, including those where the parent has abandoned or relinquished his or her rights in the child or has been adjudicated incompetent to care for the child. [Footnote 4] Absent one of Page 441 U. S. 386 these circumstances, an unwed mother has the authority under New York law to block the adoption of her child simply by withholding consent. The unwed father has no similar control Page 441 U. S. 387 over the fate of his child, even when his parental relationship is substantial -- as in this case. He may prevent the termination of his parental rights only by showing that the best interests of the child would not permit the child's adoption by the petitioning couple.Despite the plain wording of the statute, appellees argue that unwed fathers are not treated differently under § 111 from other parents. According to appellees, the consent requirement of § 111 is merely a formal requirement, lacking in substance, as New York courts find consent to be unnecessary whenever the best interests of the child support the adoption. Because the best interests of the child always determine whether an adoption petition is granted in New York, appellees contend that all parents, including unwed fathers, are subject to the same standard.Appellees' interpretation of § 111 finds no support in New York case law. On the contrary, the New York Court of Appeals has stated unequivocally that the question whether consent is required is entirely separate from that of the best interests of the child. [Footnote 5] Indeed, the Surrogate's decision in the present case, affirmed by the New York Court of Appeals, was Page 441 U. S. 388 based upon the assumption that there was a distinctive difference between the rights of Abdiel Caban, as the unwed father of David and Denise, and Maria Mohammed, as the unwed mother of the children: adoption by Abdiel was held to be impermissible in the absence of Maria's consent, whereas adoption by Maria could be prevented by Abdiel only if he could show that the Mohammeds' adoption of the children would not be in the children's best interests. Accordingly, it is clear that § 111 treats unmarried parents differently according to their sex. [Footnote 6]IIIGender-based distinctions "must serve important governmental objectives and must be substantially related to achievement of those objectives" in order to withstand judicial scrutiny under the Equal Protection Clause. Craig v. Boren, 429 U. S. 190, 429 U. S. 197 (1976). See also Reed v. Reed, 404 U. S. 71 (1971). The question before us, therefore, is whether the distinction in § 111 between unmarried mothers and unmarried fathers bears a substantial relation to some important state interest. Appellees assert that the distinction is justified by a fundamental difference between maternal and paternal relations -- that "a natural mother, absent special circumstances, bears a closer relationship with her child . . . than a father does." Tr. of Oral Arg. 41. Page 441 U. S. 389Contrary to appellees' argument and to the apparent presumption underlying § 111, maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother. Appellant Caban, appellee Maria Mohammed, and their two children lived together as a natural family for several years. As members of this family, both mother and father participated in the care and support of their children. [Footnote 7] There is no reason to believe that the Caban children -- aged 4 and 6 at the time of the adoption proceedings -- had a relationship with their mother unrivaled by the affection and concern of their father. We reject, therefore, the claim that the broad, gender-based distinction of § 111 is required by any universal difference between maternal and paternal relations at every phase of a child's development.As an alternative justification for § 111, appellees argue that the distinction between unwed fathers and unwed mothers is substantially related to the State's interest in promoting the adoption of illegitimate children. Although the legislative Page 441 U. S. 390 history of § 111 is sparse, [Footnote 8] in In re Malpica-Orsini, 36 N.Y.2d 568, 331 N.E.2d 486 (1975), the New York Court of Appeals identified as the legislature's purpose in enacting § 111 the furthering of the interests of illegitimate children, for whom adoption often is the best course. [Footnote 9] The court concluded:"To require the consent of fathers of children born out of wedlock . . . , or even some of them, would have the overall effect of denying homes to the homeless and of depriving innocent children of the other blessings of adoption. The cruel and undeserved out-of-wedlock stigma would continue its visitations. At the very least, the worthy process of adoption would be severely impeded."36 N.Y.2d at 572, 331 N.E.2d at 489. The court reasoned that people wishing to adopt a child born out of wedlock would be discouraged if the natural father could prevent the adoption by the mere withholding of his consent. Indeed, the court went so far as to suggest that"[m]arriages would be discouraged because of the reluctance of prospective husbands to involve themselves in a family situation Page 441 U. S. 391 where they might only be a foster parent, and could not adopt the mother's offspring."Id. at 573, 331 N.E.2d at 490. Finally, the court noted that, if unwed fathers' consent were required before adoption could take place, in many instances, the adoption would have to be delayed or eliminated altogether because of the unavailability of the natural father. [Footnote 10]The State's interest in providing for the wellbeing of illegitimate children is an important one. We do not question that the best interests of such children often may require their adoption into new families who will give them the stability of a normal, two-parent home. Moreover, adoption will remove the stigma under which illegitimate children suffer. But the unquestioned right of the State to further these desirable ends by legislation is not, in itself, sufficient to justify the gender-based distinction of § 111. Rather, under the relevant cases applying the Equal Protection Clause, it must be shown that the distinction is structured reasonably to further these ends. As we repeated in Reed v. Reed, 404 U.S. at 404 U. S. 76, such a statutory"classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U. S. 412, 253 U. S. 415 (1920)."We find that the distinction in § 111 between unmarried mothers and unmarried fathers, as illustrated by this case, does not bear a substantial relation to the State's interest in providing adoptive homes for its illegitimate children. It may be that, given the opportunity, some unwed fathers would prevent the adoption of their illegitimate children. This impediment to adoption usually is the result of a natural Page 441 U. S. 392 parental interest shared by both genders alike; it is not a manifestation of any profound difference between the affection and concern of mothers and fathers for their children. Neither the State nor the appellees have argued that unwed fathers are more likely to object to the adoption of their children than are unwed mothers; nor is there any self-evident reason why, as a class, they would be.The New York Court of Appeals, in In re Malpica-Orsini, supra, suggested that the requiring of unmarried fathers' consent for adoption would pose a strong impediment for adoption, because often it is impossible to locate unwed fathers when adoption proceedings are brought, whereas mothers are more likely to remain with their children. Even if the special difficulties attendant upon locating and identifying unwed fathers at birth would justify a legislative distinction between mothers and fathers of newborns, [Footnote 11] these difficulties need not persist past infancy. When the adoption of an older child is sought, the State's interest in proceeding with adoption cases can be protected by means that do not draw such an inflexible gender-based distinction as that made in § 111. [Footnote 12] In those cases where the father never has come forward to participate in the rearing of his child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Indeed, under the statute as it now stands. the surrogate may proceed in the absence of consent when the parent whose consent otherwise would be required never has come forward or has abandoned the child. [Footnote 13] See, e.g., In re Orlando F., 40 N.Y.2d 103, 351 Page 441 U. S. 393 N.E.2d 711 (1976). But in cases such as this, where the father has established a substantial relationship with the child and has admitted his paternity, [Footnote 14] a State should have no difficulty in identifying the father even of children born out of wedlock. [Footnote 15] Thus, no showing has been made that the different treatment afforded unmarried fathers and unmarried mothers under § 111 bears a substantial relationship to the proclaimed interest of the State in promoting the adoption of illegitimate children. Page 441 U. S. 394In sum, we believe that § 111 is another example of "overbroad generalizations" in gender-based classifications. See Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 211 (1977); Stanton v. Stanton, 421 U. S. 7, 421 U. S. 115 (1975). The effect of New York's classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests. [Footnote 16]The judgment of the New York Court of Appeals isReversed

U.S. Supreme CourtCaban v. Mohammed, 441 U.S. 380 (1979)Caban v. MohammedNo.77-6431Argued November 6, 1978Decided April 24, 1979441 U.S. 380SyllabusAppellant and appellee Maria Mohammed lived together out of wedlock for several years in New York City, during which time two children were born. Appellant, who was identified as the father on the birth certificates, contributed to the children's support. After the couple separated, Maria took the children and married her present husband (also an appellee). During the next two years, appellant frequently saw or otherwise maintained contact with the children. Appellees subsequently petitioned for adoption of the children, and appellant filed a cross-petition. The Surrogate granted appellees' petition under § 111 of the New York Domestic Relations Law, which permits an unwed mother, but not an unwed father, to block the adoption of their child simply by withholding her consent. Rejecting appellant's contention that § 111 is unconstitutional, the state appellate courts affirmed on the basis of In re Malpica-Orsini, 36 N.Y.2d 568, 331 N.E.2d 486. In that case, the New York Court of Appeals held that § 111 furthered the interests of illegitimate children, for whom adoption is often the best course, reasoning that people wishing to adopt a child born out of wedlock would be discouraged if the natural father could prevent adoption merely by withholding his consent. Moreover, the court suggested that, if the consent of the natural father were required, adoptions would be jeopardized because of his unavailability.Held:1. Contrary to appellees' contention, it is clear that § 111 treats unmarried parents differently according to their sex. The section's consent requirement is no mere formality, since the New York courts have held that the question of whether consent is required is entirely separate from the consideration of the best interests of the child. In this very case, the Surrogate held that adoption by appellant was impermissible absent Maria's consent, whereas adoption by Maria and her husband could be prevented by appellant only if he could show that such adoption would not be in the children's best interests. Pp. 441 U. S. 387-388.2. The sex-based distinction in § 111 between unmarried mothers and unmarried fathers violates the Equal Protection Clause of the Fourteenth Amendment because it bears no substantial relation to any important state interest. Pp. 441 U. S. 388-394. Page 441 U. S. 381(a) Maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, the generalization concerning parent-child relations would become less acceptable to support legislative distinctions as the child's age increased. P. 441 U. S. 389.(b) Unwed fathers are no more likely to oppose adoption of their children than are unwed mothers. Pp. 441 U. S. 391-392.(c) Even if special difficulties in locating and identifying unwed fathers at birth warranted a legislative distinction between mothers and fathers of newborns, such difficulties need not persist past infancy; and in those instances where, unlike the present case, the father has not participated in the rearing of the child, nothing in the Equal Protection Clause precludes the State from withholding from him the privilege of vetoing the adoption of that child. Pp. 441 U. S. 392-393.43 N.Y.2d 708, 372 N.E.2d 42, reversed.POWELL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a dissenting opinion, post, p. 441 U. S. 394. STEVENS, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 441 U. S. 401.

1991_90-6704

morning, Dawson burglarized a house near Kenton, Delaware, stealing a motorcycle jacket, several pocket watches, and containers of loose change. He then proceeded to the home of Richard and Madeline Kisner, located about half a mile from the burglary site. Mrs. Kisner was alone in the house, preparing to leave for work. Dawson brutally murdered Mrs. Kisner, stole the Kisners' car and some money, and fled further south.He reappeared later that evening at the Zoo Bar in Milford, Delaware, wearing a motorcycle jacket that was too big for him. While at the bar, Dawson introduced himself to Patty Dennis, and told her that his name was "Abaddon," which he said meant "[o]ne of Satan's disciples." App. 8081. Dawson was subsequently asked to leave the bar. Later that evening, a Delaware state police officer responded to a call to investigate a one-car accident. The car involved in the accident had been stolen from a location near the Zoo Bar and had been driven into a ditch, but the driver had left the scene. The police began a house-to-house search for Dawson, and found him at 5:25 the next morning, on the floor of a Cadillac parked about three-tenths of a mile from the accident site.A jury convicted Dawson of first-degree murder, possession of a deadly weapon during the commission of a felony, and various other crimes. The trial court then conducted a penalty hearing before the jury to determine whether Dawson should be sentenced to death for the first-degree murder conviction. See Del. Code Ann., Tit. 11, § 4209 (1987). The prosecution gave notice that it intended to introduce (1) expert testimony regarding the origin and nature of the Aryan Brotherhood, as well as the fact that Dawson had the words "Aryan Brotherhood" tattooed on the back of his right hand, (2) testimony that Dawson referred to himself as "Abaddon" and had the name "Abaddon" tattooed in red letters across his stomach, and (3) photographs of multiple swastika tattoos on Dawson's back and a picture of a swastika he had painted162on the wall of his prison cell. Dawson argued that this evidence was inflammatory and irrelevant, and that its admission would violate his rights under the First and Fourteenth Amendments.Before the penalty phase began, the parties agreed to a stipulation regarding the Aryan Brotherhood evidence. The stipulation provided:"The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware." App. 132.In return for Dawson's agreement to the stipulation, the prosecution agreed not to call any expert witnesses to testify about the Aryan Brotherhood. Although Dawson agreed to the stipulation in order to avoid presentation of this expert testimony, it is apparent from the record and from the opinion of the Supreme Court of Delaware that he continued to assert that the admission of the stipulated facts into evidence violated the Constitution. 581 A. 2d 1078 (1990). At the penalty hearing, the prosecution read the stipulation to the jury and introduced evidence that Dawson had tattooed the words "Aryan Brotherhood" on his hand. The trial judge permitted the prosecution to present the evidence related to the name "Abaddon" as well, but excluded all of the swastika evidence. In addition, the prosecution submitted proof of Dawson's lengthy criminal record. Dawson, in turn, presented mitigating evidence based on the testimony of two family members and on the fact that he had earned good time credits in prison for enrolling in various drug and alcohol programs. The jury found three statutory aggravating circumstances, each making Dawson eligible for the death penalty under Delaware law; it determined (1) that the murder was committed by an escaped prisoner, (2) that the murder was committed during the commission of a burglary, and (3)163that the murder was committed for pecuniary gain. See id., at 1102, and n. 27. The jury further concluded that the aggravating evidence outweighed the mitigating evidence, and recommended that Dawson be sentenced to death. The trial court, bound by that recommendation, imposed the death penalty.The Supreme Court of Delaware affirmed the convictions and the death sentence. The court rejected Dawson's claim that the evidence concerning the Aryan Brotherhood and his use of the name "Abaddon" should have been excluded from the penalty hearing. It observed that having found at least one statutory aggravating factor, the jury was "required to make an individualized determination of whether Dawson should be executed or incarcerated for life, based upon Dawson's character, his record and the circumstances of the crime," and that it was desirable for the jury to have as much information before it as possible when making that decision. Id., at 1102-1103 (emphasis in original). The court acknowledged that the Constitution would prohibit the consideration of certain irrelevant factors during the sentencing process, but stated that" '[p]unishing a person for expressing his views or for associating with certain people is substantially different from allowing ... evidence of [the defendant's] character [to be considered] where that character is a relevant inquiry.''' Id., at 1103. Because the evidence relating to the Aryan Brotherhood and the name "Abaddon" properly focused the jury's attention on Dawson's character, and did not appeal to the jury's prejudices concerning race, religion, or political affiliation, the court upheld its introduction during the penalty phase. We granted certiorari, 499 U. S. 946 (1991), to consider whether the admission of this evidence was constitutional error. We hold that its admission in this case was error and so reverse.We have held that the First Amendment protects an individual's right to join groups and associate with others holding similar beliefs. See Aptheker v. Secretary of State, 378164u. S. 500, 507 (1964); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958). Because his right to associate with the Aryan Brotherhood is constitutionally protected, Dawson argues, admission of evidence related to that association at his penalty hearing violated his constitutional rights. Relying on our statement in Zant v. Stephens, 462 U. S. 862 (1983), that an aggravating circumstance is invalid if "it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected," he contends that the Constitution forbids the consideration in sentencing of any evidence concerning beliefs or activities that are protected under the First Amendment. Id., at 885.We think this submission is, in the light of our decided cases, too broad. These cases emphasize that "the sentencing authority has always been free to consider a wide range of relevant material." Payne v. Tennessee, 501 U. S. 808, 820-821 (1991); United States v. Tucker, 404 U. S. 443, 446 (1972) ("[A] judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come"); Williams v. New York, 337 U. S. 241 (1949). We have previously upheld the consideration, in a capital sentencing proceeding, of evidence of racial intolerance and subversive advocacy where such evidence was relevant to the issues involved. In Barclay v. Florida, 463 U. S. 939 (1983), for example, we held that a sentencing judge in a capital case might properly take into consideration "the elements of racial hatred" in Barclay's crime as well as "Barclay's desire to start a race war." See id., at 949 (plurality opinion); id., at 970, and n. 18 (STEVENS, J., concurring in judgment).One year later, in United States v. Abel, 469 U. S. 45 (1984), we held that the Government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lie on behalf of each other. We held the evidence admissible to show bias, even assuming that member-165ship in the organization was among the associational freedoms protected by the First Amendment. Though Abel did not involve a capital sentencing proceeding, its logic is perfectly applicable to such a proceeding. We therefore conclude that the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.Although we cannot accept Dawson's broad submission, we nevertheless agree with him that, in this case, the receipt into evidence of the stipulation regarding his membership in the Aryan Brotherhood was constitutional error. Before the penalty hearing, the prosecution claimed that its expert witness would show that the Aryan Brotherhood is a white racist prison gang that is associated with drugs and violent escape attempts at prisons, and that advocates the murder of fellow inmates. If credible and otherwise admissible evidence to that effect had been presented, we would have a much different case. But, after reaching an agreement with Dawson, the prosecution limited its proof regarding the Aryan Brotherhood to the stipulation. The brief stipulation proved only that an Aryan Brotherhood prison gang originated in California in the 1960's, that it entertains white racist beliefs, and that a separate gang in the Delaware prison system calls itself the Aryan Brotherhood. We conclude that the narrowness of the stipulation left the Aryan Brotherhood evidence totally without relevance to Dawson's sentencing proceeding.As an initial matter, the second sentence of the stipulation, when carefully parsed, says nothing about the beliefs of the Aryan Brotherhood "chapter" in the Delaware prisons. Prior to trial, the prosecution acknowledged that there are differences among the various offshoots of the Aryan Brotherhood, stating that "there are cells or specific off-shoots within various local jurisdictions that don't see eye to eye or share a union, if you will." App. 33. But the juxtaposition166of the second sentence with the first sentence, which describes the Aryan Brotherhood in California prisons as a "white racist prison gang," invited the jury to infer that the beliefs of the Delaware chapter are identical to those of the California chapter.Even if the Delaware group to which Dawson allegedly belongs is racist, those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case. For example, the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson's victim. In Barclay, on the contrary, the evidence showed that the defendant's membership in the Black Liberation Army, and his consequent desire to start a "racial war," were related to the murder of a white hitchhiker. See 463 U. S., at 942-944 (plurality opinion). We concluded that it was most proper for the sentencing judge to "tak[e] into account the elements of racial hatred in this murder." Id., at 949. In the present case, however, the murder victim was white, as is Dawson; elements of racial hatred were therefore not involved in the killing.Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was also not relevant to help prove any aggravating circumstance. In many cases, for example, associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society. A defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future. Other evidence concerning a defendant's associations might be relevant in proving other aggravating circumstances. But the inference which the jury was invited to draw in this case tended to prove nothing more than the abstract beliefs of the Delaware chapter. Delaware counters that even these abstract beliefs constitute a portion of167Dawson's "character," and thus are admissible in their own right under Delaware law. Del. Code Ann., Tit. 11, § 4209(d) (1987). Whatever label is given to the evidence presented, however, we conclude that Dawson's First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson's abstract beliefs. Cf. Texas v. Johnson, 491 U. S. 397, 414 (1989) ("[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Delaware might have avoided this problem if it had presented evidence showing more than mere abstract beliefs on Dawson's part, but on the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. Because Delaware failed to do more, we cannot find the evidence was properly admitted as relevant character evidence.Nor was the Aryan Brotherhood evidence relevant to rebut any mitigating evidence offered by Dawson. We have held that a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death. Eddings v. Oklahoma, 455 U. S. 104, 114 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion). But just as the defendant has the right to introduce any sort of relevant mitigating evidence, the State is entitled to rebut that evidence with proof of its own. See Payne v. Tennessee, 501 U. S., at 825 ("[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in") (internal quotation marks omitted); id., at 860 (STEVENS, J., dissenting). In this case, Dawson's mitigating evidence consisted of testimony about his kindness to family members, as well as evidence regarding good time credits he earned in prison for enrolling in various drug and alcohol programs. Delaware argues that because Dawson's evidence consisted of "good" character evidence, it was entitled to introduce any "bad" character168evidence in rebuttal, including that concerning the Aryan Brotherhood. The principle of broad rebuttal asserted by Delaware is correct, but the argument misses the mark because, as stated above, the Aryan Brotherhood evidence presented in this case cannot be viewed as relevant "bad" character evidence in its own right.The dissent takes us to task for failing to recognize the broader implications of membership in a prison gang, and for extending the protection of the First Amendment to evidence introduced at a sentencing hearing. The material adduced by the dissent as to the nature of prison gangs-similar to the evidence which the prosecution in this case at one time considered adducing by expert testimony, supra, at 165-would, if it had been presented to the jury, have made this a different case. But we do not have the same confidence as the dissent does that jurors would be familiar with the court decisions and studies upon which it relies. Regarding the reach of the First Amendment, the dissent correctly points out that it prevents the State from criminalizing certain conduct in the first instance. But it goes further than that. It prohibits a State from denying admission to the bar on the grounds of previous membership in the Communist Party, when there is no connection between that membership and the "good moral character" required by the State to practice law. Schware v. Board of Bar Examiners of N. M., 353 U. S. 232 (1957). It prohibits the State from requiring information from an organization that would impinge on First Amendment associational rights if there is no connection between the information sought and the State's interest. Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). We think that it similarly prevents Delaware here from employing evidence of a defendant's abstract beliefs at a sentencing hearing when those beliefs have no bearing on the issue being tried.The question whether the wrongful admission of the Aryan Brotherhood evidence at sentencing was harmless169error is not before us at this time, and we therefore leave it open for consideration by the Supreme Court of Delaware on remand. See Clemons v. Mississippi, 494 U. S. 738 (1990).For the foregoing reasons, we vacate the judgment of the Supreme Court of Delaware and remand the case for further proceedings not inconsistent with this opinion.It is so ordered

OCTOBER TERM, 1991SyllabusDAWSON v. DELAWARECERTIORARI TO THE SUPREME COURT OF DELAWARENo. 90-6704. Argued November 12, 1991-Decided March 9,1992A Delaware jury convicted petitioner Dawson of first-degree murder and other crimes. At the penalty hearing, the prosecution, inter alia, read a stipulation-"[t]he Aryan Brotherhood refers to a white racist prison gang that began ... in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware" -despite Dawson's assertion that the admission of the stipulated facts violated his First and Fourteenth Amendment rights, and introduced evidence that he had the words "Aryan Brotherhood" tattooed on his hand. The jury found that the aggravating circumstances-that the murder was committed by an escaped prisoner, during the commission of a burglary, and for pecuniary gain-outweighed Dawson's mitigating evidence-that he had shown kindness to family members and had earned good time credits in prison-and made a binding recommendation to the court that he be sentenced to death. The State Supreme Court affirmed.Held:1. Dawson's First and Fourteenth Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence had no relevance to the issues being decided in the proceeding. The Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. See, e. g., Barclay v. Florida, 463 U. S. 939. However, the narrowness of the stipulation admitted here left the evidence totally without relevance to the sentencing proceeding. The stipulation says nothing about the beliefs of the Delaware prison's chapter of the Aryan Brotherhood. Any racist beliefs the group might hold were not tied in any way to the murder, because Dawson's victim was white, as is Dawson. The evidence proved only the group's and Dawson's abstract beliefs, not that the group had committed or endorsed any unlawful or violent acts. Thus, it was not relevant to help prove any aggravating circumstance. Cf. Texas v. Johnson, 491 U. S. 397, 414. Nor was the evidence relevant to rebut any mitigating evidence, since, while the State was entitled to introduce "bad" character evidence to rebut Dawson's "good" character evidence, see Payne v. Tennessee, 501160u. S. 808, 825, the Aryan Brotherhood evidence cannot be viewed as relevant "bad" character evidence in its own right. Pp. 163-168.2. The question whether the wrongful admission of the Aryan Brotherhood evidence was harmless error is left open for consideration by the State Supreme Court on remand. Pp.168-169.581 A. 2d 1078, vacated and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 169. THOMAS, J., filed a dissenting opinion, post, p. 169.Bernard J. O'Donnell argued the cause for petitioner.With him on the briefs was Brian J. Bartley.Richard E. Fairbanks, Jr., argued the cause for respondent. With him on the brief were Charles M. Oberly III, Attorney General of Delaware, and Gary A. Myers and LorenCHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The question presented in this case is whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding. We hold that they do.Shortly after midnight on December 1, 1986, petitioner David Dawson and three other inmates escaped from the Delaware Correctional Center near Smyrna, Delaware. Dawson stole a car and headed south, while the other three inmates stole another car and drove north. Early that* Michael A. Bamberger, Stuart Altschuler, John A. Powell, Steven R.Shapiro, and Jonathan Lang filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Robert A. Long, Jr., filed a brief for the United States as amicus curiae urging affirmance.161Full Text of Opinion

1996_95-1918

Richard A. Hanson argued the cause for respondents.With him on the brief were Rufus E. Wolff, Kevin J. Feeley, and Michael L. Fayhee. *JUSTICE KENNEDY delivered the opinion of the Court. The Tax Injunction Act, 28 U. S. C. § 1341, restricts the power of federal district courts to prevent collection or enforcement of state taxes. It states: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." The statute, on its face, yields no exception to the jurisdictional bar save where the state remedy is wanting, but at least one other exception is established by our cases: The statute does not constrain the power of federal courts if the*Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, Assistant Attorney General, and Steven M. Houron, Acting Attorney General of New Hampshire, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Daniel E. Lungren of California, Richard Blumenthal of Connecticut, Robert Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Tom Udall of New Mexico, Heidi Heitkamp of North Dakota, Mark W Barnett of South Dakota, John Knox Walkup of Tennessee, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, Christine Q Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the American Bankers Association et al. by John J. Gill III and Michael F. Crotty; for the Multistate Tax Commission by Paull Mines; and for the National Association of Securities and Commercial Law Attorneys by Kevin P. Roddy, G. Robert Blakey, Patrick E. Cafferty, Bryan L. Clobes, and Jonathan W Cuneo.Michael A. Cardozo and William L. Daly filed a brief for the National Hockey League as amicus curiae urging affirmance.824United States sues to protect itself or its instrumentalities from state taxation. Department of Employment v. United States, 385 U. S. 355, 358 (1966). The present case explores the limits of this judicial exception. We decide here whether instrumentalities called Production Credit Associations, corporations chartered under federal law, are included within the exception when they sue by themselves. We hold they are not and so may not sue in federal court for an injunction against state taxation without the United States as co-plaintiff. The action must be dismissed, and, as a result, we do not reach the merits of the taxation dispute.IProduction Credit Associations (PCA's) are corporations chartered by the Farm Credit Administration under the Farm Credit Act of 1971, 85 Stat. 583, as amended, 12 U. S. C. § 2001 et seq. A PCA is a corporate financial institution organized by 10 or more farmers and designed in large part to make loans to farmers. §§ 2071, 2075. PCA's have had differing tax-exempt status at different times, depending on whether the United States owned shares of their stock. See, e. g., Farm Credit Act of 1933, 48 Stat. 267. In the period relevant here (when all PCA stock has been in private hands) they have been exempted, by explicit federal statute, from state taxes on their "notes, debentures, and other obligations." 12 U. S. C. § 2077.Four PCA's, respondents here, brought suit in the United States District Court for the Eastern District of Arkansas claiming a tax exemption going beyond the express statutory language of § 2077. They assert immunity not only from the taxes described in the exemption statute we have quoted but also from Arkansas sales and income taxes. They seek a declaratory judgment and an injunction prohibiting the State from levying the taxes against them. The District Court granted the PCAs' motion for summary judgment, and a di-825vided panel of the United States Court of Appeals for the Eighth Circuit affirmed. 76 F.3d 961 (1996).Entitlement to the immunity is the underlying substantive issue, were we to reach it. The Tax Injunction Act, however, is an initial obstacle, for by its terms it would bar the relief the PCA's seek absent some exception. Seeking to overcome the bar under the Tax Injunction Act, the PCA's, first in the trial court and now here, contended that they are instrumentalities of the United States and so not subject to the provisions of the Act any more than the United States itself. The first point is correct: PCA's are instrumentalities of the United States because the statute which charters them says so. 12 U. S. C. §§ 2071(b)(7), 2077. The PCAs' argument about what follows from the designation, however, is incorrect. Instrumentalities of the United States, by virtue of that designation alone, do not have the same right as does the United States to avoid the prohibitions of the Tax Injunction Act.An observation is proper respecting our consideration of this threshold question. Although the trial court addressed the meaning and operation of the Tax Injunction Act, in the Court of Appeals the whole question seemed to disappear, though it goes to the heart of judicial authority. Neither party, we are advised, addressed the point and neither opinion in the Court of Appeals, majority or dissent, mentions it. While the question of the Act's applicability was not raised in the State's petition for certiorari, the United States, in an amicus brief in support of the petition, called our attention to the point. In granting the petition, we asked the parties to address, in addition to the merits, whether the District Court should have dismissed the case for lack of subjectmatter jurisdiction in light of the Act. 519 U. S. 805 (1997).We have interpreted and applied the Tax Injunction Act as a "jurisdictional rule" and a "broad jurisdictional barrier." Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 470 (1976). In dismissing826an action filed in a United States District Court to challenge state taxes we held that the Tax Injunction Act "deprived the District Court of jurisdiction to hear [the] challenges." California v. Grace Brethren Church, 457 U. S. 393, 396 (1982). Further, we found no jurisdiction even though the defendant State argued in favor of the federal court's jurisdiction. Id., at 417, n. 38. In explaining our holding in Grace Brethren that declaratory relief is as violative of the Tax Injunction Act as an injunction itself, we said the Act was first and foremost a vehicle" 'to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.''' Id., at 408-409 (quoting Rosewell v. LaSalle Nat. Bank, 450 U. S. 503, 522 (1981)). These statements underscore the fundamental importance of the restrictions imposed by the Tax Injunction Act, restrictions we proceed to address.IIThe federal balance is well served when the several States define and elaborate their own laws through their own courts and administrative processes and without undue interference from the Federal Judiciary. The States' interest in the integrity of their own processes is of particular moment respecting questions of state taxation. In our constitutional system, the power of the State to tax is a concurrent power. "That the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied." McCulloch v. Maryland, 4 Wheat. 316, 425 (1819). The power to tax is basic to the power of the State to exist. Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940); Rosewell, supra, at 522.Enactment of the Tax Injunction Act of 1937 reflects a congressional concern to confine federal-court intervention827in state government, a concern prominent after the Court's ruling in Ex parte Young, 209 U. S. 123 (1908), that the Eleventh Amendment is not in all cases a bar to federal-court interference with individual state officers alleged to have acted in violation of federal law. See Rosewell, supra, at 522, n. 28; Perez v. Ledesma, 401 U. S. 82, 104-115 (1971) (Brennan, J., concurring in part and dissenting in part). Given the systemic importance of the federal balance, and given the basic principle that statutory language is to be enforced according to its terms, federal courts must guard against interpretations of the Tax Injunction Act which might defeat its purpose and text.Where the Government of the United States is a party, of course, the other side of the federal balance must be considered. In our constitutional system the National Government has sovereign interests of its own. The necessity to respect the authority and prerogatives of the National Government underlies the now settled rule that the Tax Injunction Act is not a constraint on federal judicial power when the United States sues to protect itself and its instrumentalities from state taxation. The importance of allowing the United States to proceed in federal court to determine tax immunity questions is no doubt one reason why the exception was established with little discussion in Department of Employment v. United States. There the Court indicated the exception was consistent with a well-settled understanding that the Government is not bound by its own legislative restrictions on the exercise of remedial rights unless the intent to bind it is express. 385 U. S., at 358, n. 6 (citing United States v. Livingston, 179 F. Supp. 9, 12 (EDSC 1959) (three-judge District Court), aff'd, 364 U. S. 281 (1960); United States v. Arlington County, 326 F.2d 929, 931 (CA4 1964); United States v. Bureau of Revenue of N. M., 291 F.2d 677, 679 (CAlO 1961)). See also Dollar Savings Bank v. United States, 19 Wall. 227, 239 (1874). The Court concluded, "in accord with an unbroken line of authority, and828convincing evidence of legislative purpose, that § 1341 does not act as a restriction upon suits by the United States to protect itself and its instrumentalities from unconstitutional state exactions." 385 U. S., at 358 (footnotes omitted). In all the District Court and Court of Appeals cases cited in Department of Employment, the United States was either the sole plaintiff or a co-plaintiff. The United States had joined as co-plaintiff with the Red Cross in Department of Employment, arguing that the Red Cross was a federal instrumentality immune from state taxation, and we held that the Tax Injunction Act did not deprive the District Court of jurisdiction to decide the merits and order relief.We have not before now considered whether federal instrumentalities fall under the exception to the Tax Injunction Act when they sue without the United States as coplaintiff. In Moe v. Confederated Salish and Kootenai Tribes, we reasoned that when the United States is not a party, the mere fact that a party challenging the tax has interests closely related to those of the Federal Government is not enough, in and of itself, to avoid the bar of the Act. We considered whether the Act barred the exercise of federal judicial power when Indian tribes were challenging the lawfulness and constitutionality of certain state taxes. Although the tribes did not have formal designations as instrumentalities of the United States, we assumed the interests they asserted were aligned with the interests of the Federal Government. Reserving the question of the precise significance of a federal instrumentality designation, the Court said this congruence of interests was not sufficient to give the tribes an exemption from the Act. 425 U. S., at 471-472. We went on to find the tribes exempt from the Act only because a second federal statute granted sweeping federalcourt jurisdiction where an Indian tribe was a party. Id., at 472 (citing 28 U. S. C. § 1362 (1976 ed.)). Moe is instructive here. As in Moe, the PCA's say their own mission is defined and controlled by federal law and that their interests are the829same as those of the United States. We conclude here, as we did in Moe, that this argument is insufficient to justify an exception to the Tax Injunction Act.True, important consequences flow from the congressional decision to designate a PCA formed pursuant to statute as "an instrumentality of the United States." 12 U. S. C. § 2071(b)(7). The tax immunity a PCA has under § 2077 is a permitted consequence of its status as a federal instrumentality. An instrumentality of the United States can enjoy the benefits and immunities conferred by explicit statutes, however, without the further inference that the instrumentality has all of the rights and privileges of the National Government.Respondents attempt to counter this point by arguing that NLRB v. Nash-Finch Co., 404 U. S. 138 (1971), is applicable here and supports their cause. Nash-Finch involved not the Tax Injunction Act, but the Anti-Injunction Act, the statute which restricts the authority of federal courts to enjoin proceedings in state courts. 28 U. S. C. § 2283. The AntiInjunction Act provides: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." Just as the Tax Injunction Act is inapplicable where the United States is a party, a parallel rule prevails under § 2283. Leiter Minerals, Inc. v. United States, 352 U. S. 220, 225-226 (1957) (The restrictions of § 2283 are inapplicable in a suit brought by the National Government). The question in Nash-Finch was whether the National Labor Relations Board (NLRB) came within the United States' exception to § 2283. We held it did. In so ruling, we observed the NLRB's regulatory power "pre-empts the field." 404 U. S., at 144; see also id., at 147 ("The exclusiveness of the federal domain is clear ... "). The case does not aid the PCA's, for their powers are far different from those of the NLRB. As will be discussed in more detail below, the830PCA's more closely resemble the private entities Nash-Finch distinguished from the Federal Government and its agencies. Id., at 146.As to the Tax Injunction Act itself, the Courts of Appeals have adopted different standards over time for deciding whether a federal instrumentality may sue in federal court to enjoin state taxation where the United States is not a co-plaintiff. Under the most restrictive approach, there is no exception to the Tax Injunction Act for federal instrumentalities unless the United States sues as a co-plaintiff. See, e. g., United States v. State Tax Commission, 481 F.2d 963, 975 (CA1 1973) ("It is reasonable, as a prerequisite to by-passing normal state tax collection and litigation channels, that [the instrumentalities] persuade the Attorney General of the United States ... to join in their claim"); Housing Authority of Seattle v. State of Washington, Dept. of Revenue, 629 F.2d 1307, 1311 (CA9 1980) (agreeing with the First Circuit in State Tax Commission that "such joinder [with the United States as co-plaintiff] is necessary before a federal instrumentality can overcome the restrictions" of the Tax Injunction Act). After its decision in State Tax Commission, the Court of Appeals for the First Circuit modified what had seemed to be a bright-line rule to produce a different test: "[E]ach instrumentality must be examined in light of its governmental role and the wishes of Congress as expressed in relevant legislation." Federal Reserve Bank of Boston v. Commissioner of Corporations and Taxation of Mass., 499 F.2d 60, 64 (1974). Federal Reserve banks, the Court of Appeals noted, are not analogous to private corporations, but rather are "plainly and predominantly fiscal arms of the federal government" with interests "indistinguishable from those of the sovereign." Id., at 62. The court also pointed to a federal statute giving a Federal Reserve bank "unrestricted access to the district courts," id., at 63 (referring to 12 U. S. C. § 632); and to the Federal Reserve System's unusual position "outside the executive chain of831command," 499 F. 2d, at 63. See also Bank of New England Old Colony v. Clark, 986 F.2d 600, 602-603 (CAl1993) (describing Federal Reserve bank standard as a "flexible test").Under any of the tests we have described, PCA's would not be exempt from the restrictions of the Tax Injunction Act. The United States has not joined as a co-plaintiff and indeed opposes the District Court's exercise of jurisdiction. We need not inquire whether the holding of Nash-Finc~to the effect that an agency with broad regulatory power is exempt from § 2283 when it sues in its own name and not through the Attorney General or in the name of the United States-is applicable as well to the Tax Injunction Act. Whatever may be the rule under the Tax Injunction Act where a federal agency or body with substantial regulatory authority brings suit, PCA's are not entities of that description. PCA's are not granted the right to exercise government regulatory authority but rather serve specific commercial and economic purposes long associated with various corporations chartered by the United States. Other examples include the Atlantic and Pacific Railroad Company (chartered under an Act of 1866 to construct and maintain a railroad and telegraph line from Springfield, Missouri, to the Pacific Ocean, see Smith v. Reeves, 178 U. S. 436, 436437 (1900)); the Rural Telephone Bank (7 U. S. C. § 941); the United States Enrichment Corporation (42 U. S. C. § 2297a, repealed effective on date of privatization, Pub. L. 104-134, § 3116, 110 Stat. 1321). Indeed, in Smith v. Reeves, we treated the federally chartered corporation as a private citizen, not as an arm of the United States, and held it to be subject to the Eleventh Amendment bar on suits against States. 178 U. S., at 446-447.The PCAs' business is making commercial loans, and all their stock is owned by private entities. Their interests are not coterminous with those of the Government any more than most commercial interests. Despite their formal and undoubted designation as instrumentalities of the United832States, and despite their entitlement to those tax immunities accorded by the explicit statutory mandate, PCA's do not have or exercise power analogous to that of the NLRB or any of the departments or regulatory agencies of the United States. This suffices for us to conclude that instrumentality status does not in and of itself entitle an entity to the same exemption the United States has under the Tax Injunction Act.The Tax Injunction Act is grounded in the need of States to administer their fiscal affairs without undue interference from federal courts. As all parties concede, respondents have a "speedy, plain, and efficient remedy" in state court. In holding that the PCA's are subject to the Act's restriction on federal-court jurisdiction, we further the State's interests without sacrificing those of the Government of the United States.The judgment of the Court of Appeals is reversed.It is so ordered

OCTOBER TERM, 1996SyllabusARKANSAS v. FARM CREDIT SERVICES OF CENTRAL ARKANSAS ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 95-1918. Argued April 21, 1997-Decided June 2,1997The Tax Injunction Act (Act) restricts the federal district courts' power to prevent collection or enforcement of state taxes, but makes an exception to that jurisdictional bar where no plain, speedy, or efficient state-court remedy may be had. This Court has established another exception where the United States sues to protect itself or its instrumentalities from state taxation. Department of Employment v. United States, 385 U. S. 355, 358. Production Credit Associations (PCA's) are federally chartered corporate financial institutions organized by farmers primarily to make loans to farmers. During the relevant time period, federal law has exempted PCA's from state taxes on their notes, debentures, and other obligations. Respondent PCA's, claiming that they are also immune from Arkansas sales and income taxes, sought a declaratory judgment and an injunction prohibiting the State from levying such taxes on them. Seeking to overcome the Act's jurisdictional bar, they contended that, as instrumentalities of the United States, they are not subject to the Act's provisions any more than the United States itself. The District Court granted them summary judgment, and the Court of Appeals affirmed.Held: PCA's are not included within the judicial exception to the Act by virtue of their designation as instrumentalities of the United States and so may not sue in federal court for an injunction against state taxation without the United States as co-plaintiff. Pp. 825-832.(a) The Act, which has been interpreted and applied as a "jurisdictional rule" and a "broad jurisdictional barrier," Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 470, was enacted to confine federal-court intervention in state government. The federal balance is well served when the several States define and elaborate their own laws through their own courts and administrative processes and without undue interference from the Federal Judiciary. A State's power to tax is basic to its power to exist. Given the federal balance and the basic principle that statutory language is to be enforced according to its terms, federal courts must guard against interpretations of the Act which might defeat its purpose and text. Where the United States Government is a party, the other side of the federal balance must822Syllabusbe considered. The necessity to respect the National Government's authority underlies the rule that the Act does not constrain federal judicial power when the United States sues to protect itself and its instrumentalities from state taxation. Pp. 825-828.(b) When the United States is not a party, the mere fact that a party challenging a tax has interests closely related to those of the Federal Government is not enough, in and of itself, to overcome the Act's bar. Moe, supra, at 471-472. An instrumentality of the United States can enjoy the benefits and immunities conferred by explicit statutes without the further inference that it has all of the rights and privileges of the National Government. The Courts of Appeals have adopted different standards for deciding whether a federal instrumentality may sue in federal court to enjoin state taxation where the United States is not a co-plaintiff. Under any of those tests, PCA's would not be exempt from the Act's restrictions. The United States is not joined as a co-plaintiff and opposes the exercise of jurisdiction. Regardless of whether a federal agency or body with substantial regulatory authority is exempt from the Act when it brings suit in its own name, cf. NLRB v. NashFinch Co., 404 U. S. 138, PCA's are not entities of that description. Despite their formal and undoubted designation as instrumentalities of the United States, and despite their entitlement to those tax immunities accorded by the explicit statutory mandate, they do not have or exercise power analogous to that of the National Labor Relations Board or other United States departments or regulatory agencies. Their business is making commercial loans, and their stock is owned by private entities. Their interests are not coterminous with those of the Government any more than most commercial interests. A holding that they are subject to the Act's restriction on federal-court jurisdiction furthers the State's interests without sacrificing those of the Federal Government. Pp.828-832.76 F.3d 961, reversed.KENNEDY, J., delivered the opinion for a unanimous Court.Martha G. Hunt argued the cause and filed briefs for petitioner.Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Argrett, David C. Frederick, and David English Carmack.823Full Text of Opinion

1967_23

MR. JUSTICE MARSHALL delivered the opinion of the Court.At issue in this case is the propriety of an award of summary judgment in favor of respondent Cities Service in a treble damage antitrust action. The District Court held there was no genuine issue as to material facts between the parties, and that respondent was entitled to Page 391 U. S. 259 judgment as a matter of law. 38 F.R.D. 170 (D.C.S.D.N.Y.1965). The Court of Appeals for the Second Circuit affirmed. 361 F.2d 671 (1966). This Court granted certiorari, 385 U.S. 1024 (1967), to determine whether the decisions below were in conformity with Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464 (1962). We conclude that Poller and other decisions of this Court were correctly applied and, accordingly, we affirm.Because the question whether summary judgment is appropriate in any case is one to be decided upon the particular facts of that case, we shall set forth the background of this litigation in some detail (Part I) before turning to the specific issues petitioner raises (Parts II-V).IOn June 11, 1956, petitioner Waldron [Footnote 1] filed a private antitrust complaint in the Southern District of New York against seven large oil companies: British Petroleum Co., Ltd. (formerly Anglo-Iranian Oil Co.), Gulf Oil Corp., [Footnote 2] Socony Mobil Oil Co., Standard Oil Co. of California, Standard Oil Co. of New Jersey, The Texas Co., and Cities Service Co. The complaint contained essentially two series of allegations. The first was copied from the complaint in a then-pending civil action by the United States against those defendants other than Cities Service, alleging the formation and maintenance by them of a worldwide oil cartel since 1928. The second series of allegations dealt specifically with a conspiracy claimed to have been entered into at the time Page 391 U. S. 260 of the nationalization of the properties of the Anglo-Iranian Oil Co by the Government of Iran in May, 1951. The defendants other than Cities Service, it was asserted, agreed at that time to boycott Iranian oil in all world markets until Iran should agree to return Anglo-Iranian's property and concession rights. While the dispute between Anglo-Iranian and the Iranian Government under Premier Mossadegh was still continuing, Waldron and some of his associates allegedly succeeded in obtaining a contract to purchase 15,000,000 metric tons of crude oil or refined products from the National Iranian Oil Co. (NIOC), the company formed to take over Anglo-Iranian's nationalized properties, over a five-year period at a rate substantially less than the then current posted price for Persian Gulf oil. NIOC, in return, agreed not to deal with anybody other than Waldron in the United States market.The complaint next stated that the defendants other than Cities Service conspired to prevent petitioner from selling any of the oil to which he was entitled under his contract with NIOC. It was further alleged that Cities Service, after first engaging in extensive negotiations with Waldron with an eye toward participating in the operation of the Iranian oil industry, broke off dealing and joined the conspiracy to boycott him as a result of having received what amounted to a bribe from Gulf and Anglo-Iranian, namely, a large supply of oil from Kuwait at a price even lower than that petitioner could offer Cities pursuant to his contract with NIOC. Finally, the defendants were alleged to have entered into a Consortium Agreement in 1954, pursuant to their attempt to monopolize Middle East oil production, which parceled out substantially all the Iranian oil production between them. Cities Service was claimed to have been permitted to purchase a share in the Consortium. Petitioner asserted that the boycott conspiracy Page 391 U. S. 261 carried out by all the defendants completely frustrated his ability to sell oil under his contract, and accordingly sought treble damages from them in the amount of $109,000,000.Within the time set for the defendants to answer the complaint, various of them moved to take petitioner's deposition, and all of them moved to postpone the filing of their answers until the completion of that deposition. The motions were accompanied by affidavits of counsel that the legal questions presented by the complaint were extraordinarily complex, and that they had insufficient information about petitioner's business dealings with the Iranian Government to permit them adequately to prepare their clients' answers within the 20-day time limit set by Rule 12(a) of the Federal Rules of Civil Procedure. These motions were granted by Judge Weinfeld, who, in addition, stayed petitioner from any discovery of his own until completion of the defendants' discovery, apparently pursuant to then-existing practice in the Southern District. [Footnote 3]The deposition of Waldron commenced on September 10, 1956, and continued until July 3, 1957, at which time petitioner's counsel announced his intention to limit further examination. Nothing further was done by any party until December 30, 1957, at which time a motion was made to terminate the taking of Waldron's deposition. By this time, 62 days' testimony had been taken over a period of more than 15 months. All adjournments up to this point were either at Waldron's request or with his consent. Meanwhile, various of the defendants had noticed the depositions of petitioner's associates, Richard S. Nelson, James A. Bentley, James E. Zoes, Ray Carter, and Addison Brown, in October and November, 1956. Pursuant to successive stipulations entered Page 391 U. S. 262 into between petitioner and the defendants, the taking of these depositions had been postponed up to the date of petitioner's motion to terminate the taking of his own deposition. In that motion, petitioner also moved to vacate the notices to take depositions of his associates.In response to petitioner's claims that the protracted examination of him by the defendants constituted harassment and an undue burden on him, the defendants pointed out that only one of their number had as yet examined Waldron, and that the length of time over which the examination had proceeded had been with his complete acquiescence. As for petitioner's financial hardship contention, the defendants suggested that, in view of the damages sought by petitioner, it was not inappropriate that he be required to spend considerable time clarifying his claims before trial. Judge Herlands denied the motion on February 11, 1958, after argument; he ordered, however, that further examination of the petitioner by the seven defendants be limited to 52 working days, of which 10 were allotted to respondent Cities Service. In addition 174 1/2 days were scheduled for the examination of Waldron's five associates, of which 31 went to Cities Service. The examinations were to be consecutive, and were set to commence on March 10, 1958, unless the parties agreed otherwise. The defendants were authorized to postpone the filing of their answers until 30 days after the completion of the depositions, and petitioner was stayed from undertaking any discovery proceedings of his own during that period.Pursuant to stipulation, the continued examination of petitioner did not resume until September 15, 1958, and was not terminated until October, 1959. Twenty-six days were spent deposing Waldron in the latter part of 1958 and only six days during all of 1959, of which 3 1/2 were utilized by counsel for Cities Service. Petitioner's Page 391 U. S. 263 associates were deposed between January, 1960, and April, 1962, for 58 working days, of which 3 1/2 were used by counsel for Cities Service. Waldron was then examined for one additional day in 1962.Thus, between September, 1956, and May, 1962, a period of over 5 1/2 years, Waldron and his associates were deposed for a total of 153 days, of which only seven days were attributable to Cities Service. The various stipulations that resulted in prolonging the period required for the taking of these depositions were all entered into either at the request, or with the agreement, of petitioner.During the course of his deposition by Cities Service, Waldron stated that he had at first not attributed Cities' failure to conclude some sort of a deal with him for Iranian oil to its participation in the boycott. He explained that it was his discovery of Cities' purchase of substantial amounts of Kuwait oil from Gulf, plus its subsequent participation in the 1954 Consortium, that prompted him to join it in his complaint as a member of the conspiracy. Accordingly, when Cities moved for summary judgment in its favor in 1960, it did so on the ground that the affidavit of Cities' Senior Vice President in Charge of Foreign Operations, George H. Hill, and the accompanying documents from Cities' files that were submitted in support of the motion conclusively disproved petitioner's theory that it had joined the alleged boycott conspiracy because it had been bought off by the other conspirators.In brief, the documents demonstrated that Cities had been engaged in negotiations with Gulf [Footnote 4] to purchase Kuwait crude oil since 1948, and that a substantially final agreement, although not the actual conclusion of a contract, Page 391 U. S. 264 had been reached on the proposed deal prior to the time petitioner first approached Cities. [Footnote 5] As for the Consortium, the documents showed that Cities had only commenced negotiations with the defendants to obtain participation therein some two years after it was alleged to have joined the conspiracy, and that the share it was eventually offered, over its strenuous objections, was so small that it transferred the share to the Richfield Oil Co., in which it held a minority stock interest.In reply to Cities' motion, petitioner's counsel reiterated his contention that the course of dealings between Waldron and his associates, on the one hand, and various of Cities' executive personnel, especially its president, W. Alton Jones, on the other, raised an inference of conspiracy because the most probable conclusion to be drawn from Cities' decision to pass up the assertedly extremely beneficial deal proposed by petitioner, notwithstanding its need for additional supplies of imported oil, was that, in some manner, Cities either had been "reached" or had used its negotiations with Waldron as a means of forcing its way into the alleged Middle East oil cartel. Petitioner also suggested that Cities might well have made some sort of informal agreement with the other defendants concerning the Consortium that was not revealed by the documents, and that Cities might have expected, at the time such an agreement was made, a more profitable share therein than it was eventually offered.In response to these arguments, Judge Herlands, who had by this time been assigned to the case for all Page 391 U. S. 265 purposes, handed down a memorandum decision on March 30, 1961, postponing determination of Cities' motion for summary judgment. In his opinion, Judge Herlands stated that it was "doubtful" whether any issue as to any material fact existed, and that Cities had been named a defendant on mere "suspicion." Because he judged petitioner's claim against Cities "so insubstantial," he ruled that petitioner would not be given "carte blanche authority to conduct untrammeled pretrial proceedings," but that such proceedings would be "closely regulated." Subsequently, Judge Herlands entered an order providing that petitioner was to be allowed to take the deposition of Hill, the Cities' executive who had been in charge of negotiating the Kuwait deal with Gulf and who had also carried out Cities' attempts to secure a participation in the Consortium.At the hearing in 1961 on the proposed order to implement the court's decision, counsel for Waldron asked to depose Cities' president Jones first. Contrary to what appears to be the position taken now, petitioner acknowledged and accepted Judge Herlands' order that his discovery of Cities was to be carried out pursuant to Rule 56(f), Fed.Rules Civ.Proc., which provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion, rather than Rule 26, which provides for broad pretrial discovery. Petitioner's sole objection to the proposed order was that Jones should be deposed, rather than Hill.In response to Judge Herlands' observation that Hill was the man who was in the best position to provide information about the two alleged facts relied on in the complaint to link Cities to the conspiracy, petitioner's counsel for the first time argued that the Kuwait deal and the Consortium agreement were not crucial to the case. While maintaining the position that those two items were significant, counsel stated that Cities' motive Page 391 U. S. 266 for entering the alleged conspiracy was basically irrelevant. He argued that the evidence showed that Cities had embarked on a course of dealing with Waldron and then inexplicably had broken it off, and that this sequence of events was, in itself, sufficient evidence of conspiracy to withstand summary judgment and to entitle petitioner to sufficient discovery to ascertain the reason for the breakoff.This argument was rejected, and the trial judge clearly stated that, to withstand summary judgment, petitioner would have to produce some factual evidence of conspiracy beyond Cities' mere failure to carry through on a deal for Iranian oil. The taking of Hill's deposition was scheduled, without objection by petitioner, to commence upon the completion of the depositions of petitioner's associates.More than a year then elapsed, during which time, again pursuant to stipulations between all the parties, only 25 days were spent taking the depositions of petitioner's associates. Immediately after the completion of these depositions, in response to motions to strike portions of the complaint made by various defendants other than Cities, petitioner announced his intention to amend his complaint and entered into a stipulation with the other parties extending their time to move or answer until 30 days after service on them of the amended complaint. This stipulation was entered into on June 1, 1962, approximately 30 days prior to the time by which, under Judge Herlands' previous order, the defendants would have been required to answer the complaint or move for summary judgment. Some five weeks later, at the request of petitioner's counsel, a new stipulation was entered into postponing the taking of Hill's deposition until September 10, 1962, and staying petitioner's undertaking to file an amended complaint pending completion of the Hill deposition. Page 391 U. S. 267Between September 10, 1962, and February 27, 1963, pursuant to stipulations between the parties, petitioner deposed Mr. Hill for a total of six working days. Then, at the beginning of May, petitioner moved for additional discovery. In response to this motion, respondent Cities Service renewed its summary judgment motion in addition to opposing further discovery by petitioner. At oral argument, on May 27, 1963, Judge Herlands reiterated his opinion that, thus far, Waldron was still unable to point to any facts tending to show that Cities had participated in the alleged conspiracy. Indeed, the deposition testimony of Hill, plus various additional documentary evidence supplied in connection therewith, had further disproved the Kuwait and Consortium payoff theories. This evidence showed that Cities had actively resisted formation of the Consortium by the other defendants, even to the extent of making approaches to the United States Government in the hope of securing its intervention in the situation.While the respective motions were pending before Judge Herlands, petitioner, on June 28, 1963, filed an amended complaint. It differed from the original complaint in that most of the specific facts alleged in the original were replaced by more general allegations of conspiracy and boycott. In regard to Cities, the complaint was amended to omit all reference to any factual allegations involving either Kuwait oil or membership in the 1954 Consortium. In addition, those allegations of the original complaint which were directed at the other defendants and which had specifically excluded Cities were made more general, and the language excluding Cities was replaced by language referring simply to unspecified coconspirators. In place of the previous specific allegations directed at Cities, the amended complaint substituted two new formulations: first, a general allegation that Cities joined the conspiracy at a Page 391 U. S. 268 time and in a manner not known to the plaintiff; and, second, that the other defendants and various of their coconspirators "secretly threatened, induced and conspired with defendant Cities Service to break off all dealings with plaintiff."Judge Herlands held petitioner's and Cities' cross-motions under advisement for a little more than a year while he considered motions for summary judgment against petitioner made by the other defendants. Then, on June 23, 1964, in a long and comprehensive opinion dealing with both sets of motions, he denied the motions for summary judgment made by the other defendants, again postponed final disposition of Cities' motion, and granted Waldron the opportunity to conduct further discovery of Cities under Rule 56(f). [Footnote 6] Presumably, decision on petitioner's motion was deferred so long because, had the motions of the defendants other than Cities for summary judgment been granted, petitioner's case against Cities would have also been terminated. In any event, the order implementing the decision permitted petitioner to depose all those members of Cities' executive staff then alive [Footnote 7] who he alleged had participated at all in the dealings concerning Iranian oil, namely, Burl S. Watson, Cities' chairman of the board, Alfred P. Frame, Cities' first vice-president, and J. Edgar Heston, Cities' manager of oil production. The order also directed Cities to produce all documents and memoranda relating to (a) the Kuwait and Consortium issues, (b) conversations and communications between it and any other defendant between June 11, 1952, and October 1, 1952, concerning petitioner, his associates, Page 391 U. S. 269 and Cities' dealings in connection with Iranian oil, (c) conversations and communications between Cities and any other defendant between June 11, 1953, and September 30, 1953, pertaining to negotiations between Waldron and the Richfield Oil Corp. concerning the purchase by Richfield of Iranian oil, and (d) conversations and communications between any deponent for Cities and any other Cities' employee involving the subject matter described in the preceding categories. The depositions of the three Cities' executives were completed during the months of July and August, 1964, and, in connection therewith, more than 140 documents were produced.In September, 1964, petitioner moved for the following additional discovery: first, the production of all documents in the possession of Cities dealing with Cities' activities in connection with Iranian oil between June, 1952, and January, 1955; second, the production of all documents relating to the same subject matter in the possession of the other defendants, and third, the production of all relevant documents from, and oral examination of, Ray Carter, a former Cities employee who had acted as an intermediary between Cities and petitioner in their dealings. Petitioner further indicated a desire to depose various unspecified officials of the other defendants after the completion of the discovery detailed in his motion. Immediately thereafter, in October, 1964, Cities, for the third time, renewed its motion for summary judgment, [Footnote 8] and argument was had on both Page 391 U. S. 270 motions in February, 1965. Judge Herlands granted Cities' motion on September 8, 1965, holding that petitioner had failed to fulfill the requirement of amended Rule 56(e) that a party opposing a properly supported summary judgment motion must produce by affidavit or otherwise "specific facts showing that there is a genuine issue for trial." [Footnote 9] As to petitioner's cross-motion for additional discovery under Rule 56(f), the court ruled that petitioner's total failure by that date to produce any evidence tending to show Cities' participation in a conspiracy to boycott him, despite considerable discovery, demonstrated that additional discovery would be merely a fishing expedition, and would unduly harass respondent. The Court of Appeals for the Second Circuit affirmed the judgment of the District Court in all particulars. [Footnote 10]Petitioner states that three questions are presented by this case: first, whether he was improperly limited in the discovery permitted him prior to the rendering of summary judgment (Parts II, 391 U. S. infra); second, whether sufficient material facts to raise genuine issues for trial were shown ( 391 U. S. infra), and third, whether the lower courts held, erroneously, that amended Rule 56(e), Fed.Rules Civ.Proc., places the burden of showing that there is a genuine issue of material fact for trial on the party opposing a motion for summary judgment ( 391 U. S. infra).IIWe turn first to one aspect of petitioner's contention that his discovery was unduly restricted: whether certain orders of the trial judge imposed unfair limits on his access to relevant information. The second aspect of petitioner's discovery argument, addressed to what he viewed as the necessity for additional discovery to enable Page 391 U. S. 271 him adequately to oppose the summary judgment motion, we shall discuss in 391 U. S. Petitioner's initial complaint, as set out more fully supra at 391 U. S. 259-261, specifically alleged that Cities had adhered to the conspiracy by refusing to deal with petitioner after being bought off by the Kuwait contract and an opportunity to participate in the Consortium. Similarly, in his deposition, Waldron reiterated his belief that the only links between Cities and the conspiracy were those two payoffs. Thus, by petitioner's own doing, respondent Cities Service was from the beginning of the litigation placed in a vastly different position from the other alleged coconspirators. Cities, realizing this, apparently felt that, if it could show that it had, in fact, not received any payoff or bribe from the other defendants, petitioner would abandon his contention that it had joined the alleged conspiracy. Accordingly, immediately after it had taken Waldron's deposition, Cities made its motion for summary judgment accompanied by Hill's affidavit and the supporting documents described supra at 391 U. S. 263-264. When Judge Herlands declined to grant Cities' motion at that time, he permitted petitioner to examine Cities about those specific facts that had theretofore been the only ones alleged as evidence of conspiracy on the part of Cities other than its failure to make a deal with petitioner for Iranian oil. Petitioner appears to argue that it was erroneous for the trial court to limit his discovery initially to Hill, rather than Jones, the person with whom he primarily dealt. However, since petitioner was the party who had injected Kuwait and Consortium into the case, and since Hill had been the ranking Cities official in charge of both transactions, it is difficult to conclude that the trial judge abused his discretion in ordering petitioner to begin by examining Hill. Page 391 U. S. 272Even assuming arguendo that it was error for petitioner to have been required to begin his discovery with Hill, rather than Jones, the issue is moot for purposes of appellate review because Jones' accidental death occurred prior to the time petitioner would have been able to commence deposing him had he been permitted by Judge Herlands to do so. There is no reason to believe that petitioner would have made any greater efforts to see that the examination of his associates, Bentley, Zoes, and Brown, was carried out in less than the 13 months that were actually taken had he been scheduled to depose Jones at the end of that time, rather than Hill. Obviously it was Jones' death, rather than any action taken by Judge Herlands, that prevented his being deposed at some later date.Although petitioner had begun to deemphasize the significance of Kuwait and the Consortium to his claim of conspiracy by Cities at the first argument on Cities' motion for summary judgment, it was not until after the additional information described above was obtained through Hill's deposition, and the supporting documents accompanying it, that petitioner began to stress the contention that Cities had undergone a dramatic shift in its attitude towards him in September, 1952, immediately after Jones had returned from a trip to Iran arranged for him by Waldron. While it is probably to overstate the case to say, as does respondent, that petitioner abandoned his Kuwait and Consortium claims at this time, it is fair to say that petitioner no longer seriously contended that the evidence relating to them was sufficient, in itself, to raise a genuine issue of material fact.After again declining to grant Cities' motion for summary judgment, Judge Herlands entered an order permitting further discovery of Cities. It provided, as described in more detail, supra at 391 U. S. 268-269, for an examination of those Cities executives still alive who participated in Page 391 U. S. 273 the negotiations between petitioner, Cities, and the Government of Iran. It also directed the production of all documents in Cities' possession relating to any contemplated dealings in Iranian oil during the period of Waldron's active contact with Cities, i.e., between June 11, 1952, and October 1, 1952. [Footnote 11]This order had the effect of permitting Waldron to examine every surviving Cities official with whom he had dealt to any substantial degree in his attempts to arrange a sale of Iranian oil. He was permitted to examine them, and have production of all documents in connection therewith, concerning all the events that he had specified in his original complaint or in the two previous oral arguments on Cities' motion for summary judgment as being evidence of Cities' participation in the alleged conspiracy. Certainly the scope of this order, viewed as of the time it was made, does not seem open to any serious challenge as unduly restrictive, and petitioner did not make any such argument at the time the order was proposed. It was only when petitioner moved for additional discovery in the fall of 1964 that he began seriously to complain about the allegedly limited scope of the prior discovery order. Accordingly, we shall postpone more detailed discussion of this point to 391 U. S. infra.Petitioner did argue then, and still contends now, that he was prejudiced by the failure of Judge Herlands to let him examine various other Cities executives, in addition to Jones, at the time he was permitted to depose Hill. He bases this contention on the ground that many of these executives were men of advanced years at that time, and that the deaths that, in fact, ensued [Footnote 12] could Page 391 U. S. 274 thus have been reasonably foreseen. The fallacy in this argument is that it was only after Hill testified that petitioner changed the focus of his argument before the trial judge to minimize the significance of Kuwait and Consortium and to suggest other possible motivations for Cities to conspire. Certainly Judge Herlands was not required to anticipate that petitioner would change the entire factual emphasis of his case so that individuals who did not at the time appear to be particularly vital to the litigation would subsequently become so. Moreover, petitioner did not even ask to depose any Cities official who subsequently died, other than Jones, at the time he was permitted to examine Hill. Therefore, petitioner's claim of prejudicial error here must fail also.IIIIn his affidavit in support of Waldron's motion for additional discovery, petitioner's attorney detailed the facts produced to date that assertedly showed Cities' participation in the conspiracy, in order both to support his contention that additional discovery was needed and to demonstrate that summary judgment in favor of Cities should not be granted. We shall first discuss the propriety of Judge Herlands' award of summary judgment before dealing further (in 391 U. S. AWhen petitioner moved for additional discovery in 1964, in opposition to Cities' still pending motion for summary judgment, his counsel's affidavit pointed to the following evidence as tending to show a participation by Cities in the alleged conspiracy [Footnote 13] to boycott his Page 391 U. S. 275 attempts to resell the Iranian oil to which he allegedly had access under his contract. Cities had a need to import substantial amounts of crude oil for its domestic operations in the United States, this need amounting to some 100,000 barrels per day. Cities had theretofore been unable to obtain an independent oil supply in the Middle East despite its long-existing desire to do so. Through petitioner, Cities had two assertedly attractive possibilities of fulfilling its crude oil needs. The first consisted of short-term purchases of Iranian oil at prices substantially below the going rates for Mideast oil via petitioner's contract with NIOC. The second, in which Cities was apparently more interested and on which tentative agreement with petitioner was allegedly reached, was for Cities to enter into a long-term arrangement to take over the operation of the entire Iranian oil industry (or a substantial portion thereof) in place of Anglo-Iranian, and to compensate Waldron for what would amount to a transfer of his contract rights.The evidence further showed that Cities went to substantial lengths to explore the possibilities presented by petitioner. Waldron, at Jones' request, secured an invitation for Jones, together with other Cities executives, from Premier Mossadegh to go to Iran to look over the production facilities that NIOC had appropriated from Anglo-Iranian. Upon examination of the facilities, the Cities executives concluded that, notwithstanding the departure of the British personnel who had previously been in charge of operations, the Iranians had managed to keep them in relatively good operating condition. This conclusion was orally presented to Mossadegh by Jones and a comprehensive written report on specific details was promised to be transmitted later. During Page 391 U. S. 276 his stay in Iran, Jones also made a side trip to Kuwait to visit the Kuwait Oil Company, owned jointly by Anglo-Iranian and Gulf. On the return of the Cities party to the United States, Watson [Footnote 14] informed petitioner in October, 1952 that Cities did not propose to take any steps relative to obtaining Iranian oil. although another Cities executive subsequently indicated to him that Cities had not entirely abandoned its interest in his proposals. However, Cities had no further significant dealings with Waldron thereafter. Meanwhile on September 21, 1952, Carter, acting on petitioner's behalf, had sent a telegram to Secretary of the Interior Chapman offering to sell a cargo of Iranian-produced aviation gasoline to the United States Air Force. Carter stated that Jones had said that he would use his good offices to get the United States to purchase the gasoline. Instead, Jones cabled Watson instructions to tell Chapman that he was disassociating himself from Carter's efforts and that he questioned the wisdom of Carter's proposal. This Watson did.Subsequently, in January, 1953, Jones wrote to the incoming Secretary of State and Attorney General informing them of his belief that the only solution to the Iranian oil problem would be some sort of agreement between Iran and Anglo-Iranian. He accompanied this missive with a legal memorandum which stated that, under international law, Iran appeared to have the right to nationalize the Anglo-Iranian oil properties, but he asserted that the memorandum had not been prepared as a step toward Cities' involving itself in the Iranian situation. Three weeks later, the final contract with Gulf for a 15-year supply of 21,000 barrels per day of Kuwait oil, plus an option for an additional 30,000 barrels per day, was signed by Cities and Gulf. Page 391 U. S. 277Meanwhile, Waldron continued his unsuccessful efforts to sell Iranian oil to various American companies. In particular, in June, 1953, he entered into extensive negotiations with the Richfield Oil Company, in which Cities had about a one-third interest. Although great interest was shown initially by Richfield, petitioner was told in September that it had decided not to purchase Iranian oil after all. Then, in 1954, the Consortium was set up to take back Anglo-Iranian's properties and concession from NIOC, and Richfield obtained a share of about 1 1/2% therein. [Footnote 15]Petitioner argues that the inference that Cities was a participant in the alleged conspiracy to boycott him follows from the foregoing facts. Even viewed without reference to other facts of record, it is apparent that petitioner's main argument is that Cities' failure to follow through on its original substantial interest in dealing with him is substantial evidence of participation in the boycott allegedly organized by the other defendants. And undoubtedly, given no contrary evidence, a jury question might well be presented as to Cities' motives in not dealing with Waldron, cf. Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464 (1962), notwithstanding that such a failure to deal conceivably might also have resulted from a whole variety of nonconspiratorial motives involving the exercise of business judgment as to the attractiveness of the opportunity offered by petitioner. However, as we next show. the record in this case contains an overwhelming amount of such contrary evidence of Cities' motives, much of it supplied by petitioner himself. Page 391 U. S. 278BImmediately after the nationalization, Anglo-Iranian publicly announced both in the news media and throughout the oil industry its view that the nationalization of its properties and the abrogation of its concession rights amounted to an illegal act under international law, and stated its intention to "take all such action as may be necessary to protect its rights in any country," including the bringing of lawsuits against any purchaser of Iranian oil. In addition, the evidence introduced by petitioner tended to show that the other major oil company defendants in this suit, as a result of their fear that countries in which they held concessions would follow the Iranian lead should the nationalization of Anglo-Iranian's property be successful, also communicated to Cities and other domestic oil companies their intention to support Anglo-Iranian by refusing to deal with any company that handled Iranian oil. That such threats were both substantial and effective is demonstrated by the testimony of petitioner that numerous American oil companies, not made parties defendant in this action, refused to deal with him for precisely the reason that they were afraid of retaliation. In addition, petitioner testified that the other defendants had threatened to boycott any companies that leased tankers for use in transporting Iranian oil.It is thus clear that the evidence furnished by petitioner himself provides a much more compelling explanation for Cities' failure to purchase Iranian oil than does his argument that such failure is evidence of conspiratorial behavior by Cities. When this explanation is placed in juxtaposition with the evidence introduced by Cities showing that the Kuwait deal was arranged long before the nationalization, that Cities objected continually to the formation of the Consortium, and that Cities refused the minimal share offered it as a prospective participant Page 391 U. S. 279 therein after the failure of its efforts to block the formation of the Consortium, the suggestion that Cities was in some manner bought off becomes insupportable. Petitioner attempts to escape the force of this showing by arguing that he is obligated not to demonstrate why Cities conspired, but only to show that Cities in fact conspired. However, this contention, though undoubtedly true in the abstract, has little relevance to Waldron's theory of how he has introduced evidence that Cities in fact conspired.Petitioner himself consistently argues that Cities' interests in this entire situation were directly opposed to those of the other defendants. The others had large supplies of foreign oil; Cities did not. The others allegedly were members of an international cartel to control foreign oil; Cities was not. The others were interested in reestablishing the status quo prior to nationalization; Cities was not. It is doubtless due to the difficulty of suggesting a motive for Cities to conspire against him, coupled with Cities' demonstrated interest in his proposals for several months (to the extent that Cities even paid Waldron several thousand dollars to reimburse him for his time and expenses incurred in arranging Jones' trip to Iran), that prompts petitioner, understandably enough, to insist that motive is not controlling in his case. However, to suggest, as petitioner does, that Cities' participation in the conspiracy is shown by its failure to deal with him is itself to rely on motive.Obviously it would not have been evidence of conspiracy if Cities refused to deal with Waldron because the price at which he proposed to sell oil was in excess of that, at which oil could be obtained from others. Therefore, it is only the attractiveness of petitioner's offer that makes failure to take it up suggestive of improper motives. However, it has been demonstrated Page 391 U. S. 280 above that for Cities to enter into any deal with Waldron for Iranian oil would have involved it in a variety of unpleasant consequences sufficient to deter it from making any such deal. [Footnote 16] Therefore, not only is the inference that Cities' failure to deal was the product of factors other than conspiracy at least equal to the inference that it was due to conspiracy, thus negating the probative force of the evidence showing such a failure, but the former inference is more probable.Petitioner does attempt to point to other evidence besides the simple failure to deal as showing conspiracy. [Footnote 17] Page 391 U. S. 281 He places considerable reliance on the report prepared for transmission to Mossadegh in October, 1952, immediately after Jones' return from Iran and Watson's announcement to Waldron that Cities was no longer interested in Iranian oil. He stresses two aspects of the report as evidencing Cities' participation in the boycott: first, the statement that it was necessary for Iran to come to some sort of agreement with the British (Anglo-Iranian was owned 51% by the British Government) about compensation for the concession rights and expropriated property, and, second, the suggestion that there existed the possibility that an American company (presumably Cities) would import some Iranian oil purchased Page 391 U. S. 282 directly from NIOC. It is interesting to note that petitioner attempts to use this memorandum in two opposing ways. He suggests, on the one hand, that the reference to the necessity for British cooperation if the Iranian oil industry were to be reactivated is evidence of Cities' adherence to the scheme initiated by Anglo-Iranian to force Iran to return the properties, and, on the other, that the statement that it would be possible for Iran to sell substantial amounts of oil without such an agreement is evidence of Cities' continued interest in Iranian oil. It is difficult to see how the latter contention supports an inference of conspiracy. Petitioner also ignores the fact that the latter alternative was characterized by Jones in the report as less desirable insofar as Iran's long-term interests were concerned, and that, with regard to Cities' participation in such an arrangement, Jones also stated that"[d]evelopment of some method, possibly through agreement between United States and British Governments, [would have to be made] that would allow Iranian crude to move to U.S. markets without tie-ups, law suits and other similar harassments to the purchasers of the crude."Petitioner also emphasizes the statement sent by Jones to the incoming Secretary of State and Attorney General that the only solution for Iran lay in some sort of accommodation with the British. Since this was also the position taken, in effect, by the other alleged conspirators, petitioner suggests that it too shows common purpose. However, once Jones had decided that Cities could not risk trying to break the boycott itself, it was merely a factual observation to state that Iran would not be able to restore the operation of its oil industry without some kind of agreement being made with the boycotters. The use of the phraseology that this was the only "honorable course" hardly changes the factual background of the letter. Page 391 U. S. 283In addition, the statement is substantially similar to that made in the report intended to be sent to Premier Mossadegh on which petitioner relies to show Cities' continued interest in Iranian oil. Petitioner himself notes that the agreement contemplated in the report between Iran and Anglo-Iranian would involve an American company (hopefully Cities) taking over the operation of the oil industry, while Anglo-Iranian would be compensated for its property. Since Anglo-Iranian was insisting that its property and concession rights be returned to it outright, and was rejecting proposals to substitute the payment of compensation therefor, this proposal by Jones is not reasonably susceptible of the interpretation sought to be placed on it by petitioner.Moreover, the letter was accompanied by a legal memorandum, stating that Iran had a right under international law to nationalize its oil industry, that ran directly counter to the consistent position taken by the other defendants in this case. Indeed, it went to the heart of their defense, since one of the arguments being made below is that the other defendants were merely acting to protect their property rights. See 231 F. Supp. at 87.Petitioner argues that the failure of the Richfield Oil Co. to deal with him is evidence of conspiracy by Cities because Cities was a major, although not a controlling, stockholder in Richfield. However, aside from Cities' stock interest in Richfield, petitioner has produced no evidence other than speculation to connect this failure with any action by Cities. As for the probative value of the failure to deal with Waldron, the same objection is applicable to the proposed transaction with Richfield that has been discussed in connection with the proposed deal with Cities, namely, the probability that it was due to a desire to avoid difficulties that would be presented by Anglo-Iranian and the other defendants. Moreover, since petitioner's contract had expired by the Page 391 U. S. 284 time the deal fell through, it is also possible that no agreement was reached because Waldron no longer had anything to offer. Therefore, the failure of petitioner to sell oil to Richfield adds nothing to his case against Cities.Finally, petitioner places great reliance on Jones' alleged interference in his efforts to sell the United States Government a cargo of gasoline for military use. One difficulty with this contention is that the incident occurred at a time when, petitioner conceded in the trial court, Cities was not yet a member of the conspiracy. A more basic objection to it, however, is that it is apparent that Jones, in his cable to the Secretary of the Interior, was primarily concerned with disassociating himself from Carter's efforts to promote the sale, efforts which Carter intended to tell the Secretary were supported by Jones. Under those circumstances, what petitioner characterizes as vindictive interference by Jones appears far more likely to have been a desire not to be used in someone else's financial dealings. In any event, it is insufficient support, in light of all the other evidence, on which to base a case for participation by Cities in the conspiracy.CIn support of his contention that summary judgment against him was improper, petitioner relies heavily upon Poller v. Columbia Broadcasting System, Inc., 368 U. S. 464 (1962). In Poller, the plaintiff claimed that CBS canceled its affiliation agreement with his UHF station pursuant to a conspiracy between CBS and some third parties to drive him out of business in order to give CBS a short-term monopoly of the UHF market in the Milwaukee area, and ultimately to eliminate UHF competition there entirely. The plaintiff introduced evidence showing that CBS had canceled his affiliation, that it purchased and affiliated with another UHF station in Page 391 U. S. 285 competition with him, that he was driven out of business as a result of the competition with the other station, and that, subsequently, CBS terminated the operation of its station, thereby leaving the Milwaukee market without any UHF service at all. CBS, in turn, relied on evidence consisting largely of affidavits from, and depositions of, various of its executives asserting that the actions taken by it were the result not of conspiracy, but of its legitimate business decision to enter into competition in the UHF market in the Milwaukee area. The basic issue between the parties, therefore, concerned the motives of CBS in canceling its affiliation with the plaintiff Poller. This Court held that, where there was substantial factual evidence tending to show the existence of a conspiracy to eliminate a competitor, and where the crucial question was motive, summary judgment was prematurely granted against the plaintiff, notwithstanding the fact that there was also substantial evidence tending to show the nonexistence of conspiratorial behavior.At first glance, the present case seems to present substantial similarities to the situation in Poller in that the issue as to Cities' motive in failing to conclude a deal with petitioner is likewise basic to the litigation here. However, there are crucial differences between the two cases. In Poller, the competitive relationship between CBS and the plaintiff was such that it was plausible for the plaintiff to argue that CBS had embarked on a plan to drive him out of business. In this case, as Waldron has admitted right along, the business relationship between him, Cities, and the other defendants was such that it is much more plausible to believe that Cities' interests coincided, rather than conflicted, with those of petitioner. And, in fact, the course of dealings between petitioner and Cities over the strenuous objection of the other defendants gives ample evidence of Page 391 U. S. 286 precisely this similarity of interest. As Waldron himself candidly stated in the course of his deposition, he would not have originally included Cities as a coconspirator had he not conceived the idea that the ultimate failure of Cities to deal with him was the result of some sort of payoff. Yet as described supra at 391 U. S. 263-264, 391 U. S. 267, Cities has introduced overwhelming evidence that no such payoff was ever made or promised to it in return for an agreement not to deal with Waldron, a showing which petitioner has in no way rebutted. Petitioner is thus forced to take the position that the one fact that he has produced, Cities' failure to make a deal with him for Iranian oil, is sufficiently probative of conspiracy to entitle him to resist summary judgment.In support of this position, petitioner relies heavily on Interstate Circuit, Inc. v. United States, 306 U. S. 208 (1939), and Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537 (1954). In Interstate Circuit, a group of motion picture distributors, at the request of two large first-run exhibitors, simultaneously imposed identical restrictions on subsequent showings of the films they distributed. These restrictions had the effect of forcing subsequent-run exhibitors to raise their admission prices substantially in the direction of the prices then charged by the competing first-run exhibitors at whose behest the restrictions were imposed. This, in turn, tended to restrain competition among the exhibitors by depriving the subsequent-run exhibitors of much of their ability to compensate for their competitive disadvantages by selling tickets at a considerably lower price than that charged by the first-run exhibitors. Other restrictions prohibiting the showing of double features in subsequent-run theatres were imposed with similar anticompetitive effects. There was no direct evidence showing that the distributors agreed with one another to impose the identical restrictions, but it was Page 391 U. S. 287 shown that each distributor knew that all the other distributors had been approached with the same proposal and that the imposition of the restrictions would be feasible only if adhered to by all distributors. Finally, it was shown that the identical action taken had the effect of creating a likelihood of increased profits for each distributor. This Court held that, on the foregoing facts, a tacit agreement to restrain competition between the distributors could properly be inferred.Interstate Circuit differs from the case at hand in precisely the same way that Poller does, namely, in the inferences of motive that can reasonably be drawn from the facts. The reason that the absence of direct evidence of agreement in Interstate Circuit was not fatal is that the distributors all had the same motive to enter into a tacit agreement. Adherence to such an agreement would enable them to increase their royalties by forcing a rise in admission prices without the danger of competitors enlarging their share of the subsequent-run market by refusing to impose similar restrictions. That such a step would also aid the first-run exhibitors proposing it to restrain competition between themselves and subsequent-run exhibitors would not significantly diminish the anticompetitive benefits to be obtained by the distributors. Here, Waldron is unable to point to any benefits to be obtained by Cities from refusing to deal with him, and therefore the inference of conspiracy sought to be drawn from Cities' "parallel refusal to deal" [Footnote 18] does not logically follow.Theatre Enterprises, also relied on by petitioner, merely reiterated the holding of Interstate Circuit that "business behavior is admissible circumstantial evidence from which the factfinder may infer agreement," 346 Page 391 U. S. 288 U.S. at 346 U. S. 540, in the course of ruling that the parallel behavior there shown did raise a conspiracy issue for the jury, which permissibly resolved it in the defendants' favor on the basis of the other contrary evidence in the case. It did not purport to deal with a situation where the interests of the parties whose behavior was "consciously parallel" were substantially divergent and thus is inapplicable here. Thus, neither precedent nor logic supports petitioner's contention that the evidence to which he points is significantly probative of conspiracy and, therefore, we hold that, on the facts as shown summary judgment was correctly awarded to respondent.IVRule 56(e) of the Federal Rules of Civil Procedure states that"[w]hen a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial."Petitioner contends that the lower courts misapplied Rule 56(e) in this case and erroneously placed the burden on him to show that there was a material issue of fact for trial, rather than first requiring respondent Cities Service, the movant, to demonstrate the absence of a "genuine issue as to any material fact" under Rule 56(c). However, it should be noted that the decisions below did not purport to discuss burden of proof at all. Therefore petitioner must demonstrate that, regardless of what was specifically held, the effect of the decisions below was to so shift the burden of proof.It is true that the issue of material fact required by Rule 56(c) to be present to entitle a party to proceed to trial is not required to be resolved conclusively in favor of the party asserting its existence; rather, all that Page 391 U. S. 289 is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial. The case at hand presents peculiar difficulties because the issue of fact crucial to petitioner's case is also an issue of law, namely the existence of a conspiracy. What Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him. [Footnote 19] Yet the analysis of the facts undertaken above demonstrates that, due to the absence of probative force of Cities' failure to deal with Waldron as being, in itself, evidence of conspiracy, petitioner's position is, in effect, that he is entitled to rest on the allegations of conspiracy contained in his pleadings. Thus, petitioner repeatedly states that Cities has never disproved its participation in the alleged conspiracy, despite the fact that the only evidence of such participation is his allegation that the failure to deal resulted from conspiracy.Essentially all that the lower courts held in this case was that Rule 56(e) placed upon Waldron the burden of producing evidence of the conspiracy he alleged only after respondent Cities Service conclusively showed that the facts upon which he relied to support his allegation were not susceptible of the interpretation which he sought to give them. That holding was correct. To the extent that petitioner's burden of proof argument can be interpreted to suggest that Rule 56(e) should, in effect, be read out of antitrust cases and permit plaintiffs to get to Page 391 U. S. 290 a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations, we decline to accept it. While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.VWe have postponed our discussion of petitioner's contention that he should have been permitted additional discovery prior to the grant of summary judgment to this point in order that it may be evaluated in the light of what he had succeeded in accomplishing as of the date he made the motion.APetitioner makes much of the fact that the present action has been pending in the lower courts for 11 years and that he has not yet received a formal answer to his complaint from any defendant nor been permitted any general discovery. Petitioner also complains of the inequity of his being faced with a motion for summary judgment after having been deposed for thousands of pages by the defendants, but before he has had an opportunity to obtain discovery from them. In particular, he emphasizes that, in an antitrust conspiracy case discovery is vital because most of the evidence of conspiracy will naturally be in the hands of the defendants. However, petitioner fails to come to grips with the problems presented in this extremely complicated suit by the fact that one of the defendants, Cities Service, has from the beginning of the litigation attempted to disassociate itself Page 391 U. S. 291 from the others on the ground that, as petitioner himself acknowledged and initially alleged, it was in a totally different position from the other defendants.Thus, when petitioner emphasizes the considerable discovery had of him by the defendants as a group, he implies that Cities has been unfairly permitted more discovery of him than he has of it. He attempts to minimize the significance of the fact that Cities' participation in his examination amounted to a total of 3 1/2 days of deposition testimony by arguing that Cities benefited from the extensive examination conducted by the other defendants. The record reveals, however, that much of the evidence obtained by the other defendants in deposing petitioner and his associates is relied on heavily by petitioner himself to bolster his case against Cities. Had the record in this case consisted only of the evidence obtained by petitioner from Cities together with the testimony taken by Cities from Waldron, petitioner' case against Cities would be even weaker than it is. In fact, petitioner would undoubtedly have chosen to submit affidavits in opposition to Cities' motion for summary judgment containing much of the same material incorporated in his and his associates' depositions. Hence, petitioner benefited as much vis-a-vis Cities from the depositions taken by the other defendants as Cities did. Under such circumstances, petitioner cannot justifiably claim that Cities has been given an unfair advantage by the extent of his examination by the other defendants.As for petitioner's general objections to the length of time that his case has been pending, it is clear that Cities Service has been the only party to the litigation that has exhibited any consistent desire to expedite the proceedings, and that, even where postponements and adjournments have been sought by either Cities or the other Page 391 U. S. 292 defendants, petitioner has always been willing to acquiesce in delay. [Footnote 20] Certainly petitioner cannot claim that it was the responsibility of the trial judge to hurry matters along by rejecting stipulations entered into by all the parties to the case.Petitioner's more vehement objections have to do with his claim that he has been stayed from obtaining general discovery of the other defendants in the case throughout the period during which he has sought to build a case against Cities. Since there is no indication that petitioner will be unable to obtain general discovery at some future date of the other defendants for use against them in the case still pending below, the issue here is whether he can compel Cities to remain a party to the litigation pending such general discovery. Assuming the correctness of petitioner's claim that he has been stayed from conducting such discovery (a claim disputed not altogether unpersuasively by respondent), the fact remains that petitioner has had discovery of the one party he is presently opposing and, therefore, his right to additional discovery must depend on the strength of his argument that it is necessary to his case against that party. Page 391 U. S. 293While petitioner now asserts that he has been vigorously demanding discovery of the other defendants right along, the record reveals that, back in 1960, on one of the occasions at which petitioner claims to have requested such discovery, his counsel stated,"I think the obvious place to begin is with Cities Service . . . , and whether we need to go farther than that, I don't know, and it would depend very much on what turned up there. . . ."It was only after two examinations of Cities Service personnel that petitioner finally made a formal motion for discovery of the other defendants in anticipation of Cities' renewal of its motion for summary judgment. In support of this motion, petitioner was able to point to no significant evidence that he had turned up to show any dealings between Cities and the other defendants, other than the largely abandoned Kuwait oil transaction. His basic argument was, and is, simply the general proposition that, in a conspiracy case, the evidence is usually in the hands of the conspirators, and that, therefore, he should have been permitted to examine the other alleged conspirators to see if he could obtain anything from them that would tend to link Cities to them.It is probably true that, in the ordinary conspiracy case, a plaintiff would be entitled to obtain discovery against all the alleged conspirators instead of being obligated to proceed against them seriatim. However, in this case, by the plaintiff's own doing, one of the alleged conspirators was singled out from the rest as having joined the conspiracy at a much later date as the result of specific inducements. Being placed by petitioner's complaint in the position of being what might be termed a tangential defendant, Cities legitimately attempted to extricate itself from an expensive and protracted lawsuit. We do not mean to imply that a plaintiff should be Page 391 U. S. 294 barred from changing the theory of his case in response to information he obtains in the course of discovery. But when the evidence so obtained shows both that the defendant is, in fact, tangential and that the allegations by which he was linked to the other defendants are factually incorrect, we think that a burden should indeed be placed on the party changing his theory to show a significant likelihood that discovery of the other defendants would produce evidence different from that obtained thus far. In this case, petitioner has only speculation as to what discovery of the other defendants would reveal about their relations with Cities Service, and not very persuasive speculation at that, since all the evidence thus far produced by any party on this subject supports the hypothesis that Cities was opposed to the other defendants, rather than in collusion with them. Accordingly, it was not error on the part of Judge Herlands, on these facts, to deny that portion of petitioner's motion in opposition to summary judgment that requested general discovery of all the other defendants in this case.BPetitioner acknowledges the fact that he has had some discovery of Cities Service pursuant to court order. However, he contends vigorously that the discovery he has obtained has been too limited to enable him adequately to resist the motion for summary judgment. Petitioner points out that he was initially limited to taking the deposition of Hill instead of Jones, notwithstanding the fact that Jones was the person at Cities with whom he primarily dealt with regard to the Iranian oil situation. He claims prejudice from the fact that Jones died before he could be deposed in that those Cities' personnel whom he eventually deposed, namely, Watson, Frame, and Heston, were not an adequate substitute for Page 391 U. S. 295 Jones. He also argues that he should have been allowed to depose Carter. Finally, petitioner asserts that his examination of the three executives was improperly limited in scope by Judge Herlands, and that he should have been permitted general access to Cities' files for all documents in connection with Cities' activities in Iranian oil between the time he first approached Cities and 1955 in order to compensate for his inability to examine Jones.It has already been observed [Footnote 21] that the absence of testimony from Jones in this litigation is largely happenstance, since there is absolutely no indication that Judge Herlands would not have permitted him to be deposed when Watson, Frame, and Heston were examined had he been available. In addition, while it is doubtless true that Jones, as president of Cities, could have testified more authoritatively with regard to certain of the questions concerning Cities' dealings in Iranian oil, petitioner's consistent attempt to portray those Cities executives who were deposed as uninformed underlings is substantially overstated. Notwithstanding some areas of ignorance, Watson, Frame, and Heston were privy to a considerable amount of information in connection with Cities' dealings both with Iran and with the other defendants. While Jones may have been the dominant figure in the Cities operation, it is simply unrealistic for petitioner to suggest that Jones could have involved Cities in a conspiracy on the scale which is alleged to have existed here without any knowledge on the part of the other major executives of the company.Petitioner's desire to depose Carter, which appeared for the first time in the litigation at this late date, is interesting in light of the fact that originally Carter had been listed as one of petitioner's associates, and the defendants had formally noticed their intention to depose Page 391 U. S. 296 him in that capacity. Petitioner does not adequately explain why, if such were, in fact, the case, he required a court order to examine Carter, who was not an employee of Cities. It should be emphasized in this connection that, so far as appears from the record, petitioner has introduced absolutely no evidence on his own behalf in this case except the deposition testimony obtained from himself and his associates by the defendants and the testimony and documents obtained from Cities pursuant to Judge Herlands' various discovery orders.Petitioner's counsel stated in his affidavit attached to the discovery motion that Carter became an adherent of Cities immediately after petitioner filed his complaint and implied that Carter would not voluntarily testify. Assuming that to be true, although such an assumption seems open to question in view of the absence of any specific allegation to that effect, [Footnote 22] no explanation is proffered as to why petitioner did not try to obtain discovery of Carter earlier if his testimony were thought necessary to petitioner's case. Petitioner was aware long before late 1964 that Cities was contending that it was not a member of any conspiracy that may have existed between the other defendants, and that it resisted being put to the expense of participating in what showed every sign of being an extremely protracted litigation. Given the fact that Judge Herlands had stated, in declining to grant Cities' original motion for summary judgment back in 1961, that he regarded petitioner's case against Cities as extremely weak, it seems quite proper to infer from the timing of petitioner's initial request to depose Carter that he did not regard Carter as someone whose Page 391 U. S. 297 testimony was significantly likely to help him resist a motion for summary judgment. On the contrary, the timing of the initial request suggests strongly that petitioner was more interested in establishing grounds on which to contend that Cities' motion for summary judgment should not yet be granted than he was in actually discovering what evidence Carter was in a position to furnish to him. There is no real indication, despite his arguments to the contrary, that petitioner obtained information in the course of his prior discovery that made Carter a more vital witness in 1964 than he would have been in 1961 or 1963.As for petitioner's documentary requests, and his complaints about improper limitation of his previous discovery presented in support thereof, it is apparent that the time period to which they relate is in large part a period during which petitioner was no longer having any dealings with Cities. This is important because, of two factors crucial to Waldron's conspiracy charge against respondent: first, petitioner argues that Cities joined the conspiracy when it refused to go through with a deal through him for Iranian oil, namely, in the latter part of 1952, and second, petitioner's contract with NIOC, the property right allegedly interfered with by the illegal boycott, expired in the spring of 1953. In addition, petitioner had, at the time of this motion, already obtained discovery of a very substantial number of documents having to do with Cities' dealings in Iranian oil prior to November 1, 1952, the latest point in time ever seriously suggested by petitioner for Cities to have joined the conspiracy.In a proper case, of course, a party might well have the right to demand discovery of documents from an opposing party dealing with activities during a period outside that covered by the subject matter of the lawsuit Page 391 U. S. 298 in order to provide some indication of the ramifications of the actions forming the basis of the complaint. We do not doubt that, had petitioner introduced some significant evidence that Cities had become a member of the conspiracy alleged in his complaint, more extended discovery under Rule 56(f) of Cities' activities subsequent to its refusal to deal with him would have been proper. Likewise, given sufficient evidence of conspiracy, broader access to Cities' files for the period within which petitioner had already had discovery would have been in order. But, in this case, petitioner was attempting, in effect, to obtain discovery of peripheral aspects of Cities' alleged participation in the conspiracy, after having failed, despite already substantial discovery, to obtain any significant evidence of conspiracy for the period during which it was alleged to have directly injured him. It is precisely because the discovery obtainable under Rule 56(f) [Footnote 23] to oppose a motion for summary judgment would normally be less extensive in scope than the general discovery obtainable under Rule 26, that such a manner of proceeding was properly refused here. Notwithstanding Waldron's complaints about the limitations placed on his discovery of materials and witnesses, it is evident that he has had sufficient discovery either to substantiate his claims of conspiracy to the extent of raising a material issue of fact thereon, or of providing a basis for investigation of his own to gather additional evidence during the five years for which Cities' motion was pending below. The fact that petitioner accomplished neither of these ends with the discovery he obtained is ample support for the trial judge's determination that additional discovery would be futile, and would merely operate to require Cities to participate Page 391 U. S. 299 further in litigation in which it had been originally joined solely on the basis of conjecture.For the foregoing reasons, we hold that summary judgment was properly awarded in the courts below to respondent.Affirmed

U.S. Supreme CourtFirst Nat'l Bank v. Cities Service Co., 391 U.S. 253 (1968)First National Bank of Arizona v. Cities Service Co.No. 23Argued November 9, 1967Decided May 20, 1968391 U.S. 253SyllabusOne Waldron (hereafter petitioner), in 1956, filed an antitrust action seeking treble damages amounting to $109,000,000 against seven large oil companies, including respondent (Cities). In addition to charging a worldwide cartel maintained since 1928 by oil companies other than Cities, the complaint charged those companies with conspiring to boycott Iranian oil until Iran agreed to return Anglo-Iranian's properties which it had nationalized in 1951 alleging: that petitioner had a favorable contract to purchase Iranian oil over a five-year period; that negotiations had been conducted with Cities for its participation in the operation of the Iranian oil industry; that Cities joined the conspiracy, having been bribed in the latter part of 1952 by Gulf and Anglo-Iranian by an offer of Kuwait oil at prices lower than petitioner's offer; that, in 1954, a Consortium Agreement was made whereby all the oil companies, including Cities, shared almost all the Iranian oil production, and that the boycott conspiracy frustrated petitioner's ability to sell oil under his contract. The trial judge granted defense motions to postpone answering the complaint pending the taking of petitioner's deposition, and meanwhile petitioner was stayed from any discovery of his own. The deposition of petitioner commenced in September, 1956. From then till May, 1962, he and his associates had their depositions taken (hereafter "were deposed") for 153 days in all, seven of which were attributable to Cities. Various stipulations which resulted in prolonging the deposition period were entered into at petitioner's request or with his agreement. During the course of his deposition petitioner stated that he had not initially attributed Cities' failure to buy Iranian oil from him to its participation in the boycott, but that it was his discovery of Cities' purchase of Kuwait oil from Gulf plus its later participation in the Consortium that prompted him to join Cities as a conspirator. Accordingly, in 1960, Cities moved for summary judgment under Fed.Rule Civ.Proc. 56, on the ground that the affidavit of Hill, its officer in charge of Foreign Operations, and accompanying documents conclusively disproved petitioner's boycott Page 391 U. S. 254 conspiracy theory by demonstrating that (1) Cities had negotiated to buy Kuwait oil from Gulf since 1948 and had substantially completed a final agreement before petitioner approached Cities and (2) Cities had only started negotiations to participate in the Consortium some two years after it was alleged to have joined the conspiracy and the eventual participation offered to Cities in the Consortium was so small that Cities, following its fruitless objections, transferred it to Richfield, in which Cities held a minority stock interest. The trial judge, following counterarguments by petitioner, though believing it "doubtful" that any issue of material fact existed and feeling that Cities had been joined on mere "suspicion," deferred ruling on Cities' summary judgment motion, but stated that petitioner's pretrial discovery would be "closely regulated." Thereafter he ordered that petitioner be allowed to depose Hill under Fed.Rule Civ.Proc. 56(f), which provides for comparatively limited discovery for the purpose of showing facts sufficient to withstand a summary judgment motion. Petitioner's sole objection was that Cities' president, Jones, should be deposed, rather than Hill. After depositions had been taken of petitioner's associates, petitioner deposed Hill for six days between September 10, 1962, and February 27, 1963, and later moved for additional discovery, whereupon Cities renewed its summary judgment motion. At oral argument, on May 27, 1963, the trial judge reiterated his view that petitioner could point to no facts showing Cities' participation in the conspiracy and that Hill's deposition and other documentary evidence further disproved petitioner's theories. On June 28, 1963, petitioner filed an amended complaint eliminating most of the specific fact allegations and, in regard to Cities, omitting the specific allegations about Kuwait oil or membership in the Consortium, and instead making the general allegation that Cities joined the conspiracy in a time and manner not known to petitioner, and that the other oil companies and various coconspirators "secretly threatened, induced and conspired with . . . Cities . . . to break off dealings with" petitioner. On June 23, 1964, the trial judge denied motions for summary judgment by other defendants, postponed final disposition of Cities' motion, and gave petitioner opportunity under Rule 56(f) to depose the three surviving members of Cities' executive staff who had participated in the alleged Iranian oil dealings and to have certain documents produced. The depositions were completed and the documents produced in July and August, 1964. In September, 1964, petitioner moved for the production of all documents in Cities' or the other defendants' possession relating to Page 391 U. S. 255 Iranian oil between June, 1952, and January, 1955, and documents from and oral examination of Carter, a former Cities employee, who acted as an intermediary between Cities and petitioner. His counsel's supporting affidavit related facts designed to show that Cities' failure to follow through on its original interest in dealing with petitioner was substantial evidence of Cities' participation in the boycott allegedly organized by the other defendants. Cities again renewed its summary judgment motion and, following arguments on both motions, the trial judge granted summary judgment on September 8, 1965, holding that petitioner had failed to meet amended Rule 56(e)'s requirement that a party opposing a properly supported summary judgment motion show by affidavit or otherwise "specific facts showing that there is a genuine issue for trial." The court ruled as to petitioner's cross-motion for additional discovery under Rule 56(f) that his total failure to produce evidence tending to show Cities' part in a conspiracy demonstrated that additional discovery would be a fishing expedition and constitute harassment. The Court of Appeals affirmed.Held:1. The trial judge's orders prior to the rendition of summary judgment were proper, and did not place unfair limits on petitioner's access to relevant information. Pp. 391 U. S. 270-274; 391 U. S. 290-299.(a) Petitioner himself, from the beginning, took the position that the two payoffs (the Kuwait contract and participation in the Consortium) were the only links between Cities and the conspiracy. By Hill's affidavit and supporting documents, Cities apparently felt it could disprove these charges. Pp. 391 U. S. 270-271.(b) The trial judge did not abuse his discretion in ordering petitioner to limit initial discovery to Hill, rather than Jones, Cities' president, with whom petitioner had primarily dealt; since Hill had been the ranking Cities official in charge of the Kuwait and Consortium transactions, it is unrealistic to suggest that Jones could have involved Cities in such a large conspiracy without knowledge on the part of its other major executives, and, in any case, the issue became moot after Jones' death, which occurred before petitioner would have been able to depose him had the trial judge permitted him to do so. Pp. 391 U. S. 272; 391 U. S. 294-295.(c) After Hill's deposition and the accompanying documents in its support, petitioner no longer seriously contended that the evidence relating to Kuwait and Consortium was sufficient by itself to raise a genuine issue of material fact. P. 391 U. S. 272.(d) The order permitting petitioner to depose the surviving Cities officials with whom he had dealt was not unduly restrictive, Page 391 U. S. 256 and petitioner was not prejudiced by not being allowed to depose other executives at the time he was allowed to depose Hill because it was not until he had deposed Hill that he began to suggest other possible motivations for Cities to conspire. Pp. 391 U. S. 272-274.(e) As petitioner himself acknowledges, Cities was in a totally different position from the other defendants. The discovery given the other defendants did not unduly favor Cities, whose own deposition testimony of petitioner totaled only 3 1/2 days, since petitioner benefited as much vis a vis Cities from the depositions taken by the other defendants as Cities did. Though the case has been pending in the lower courts 11 years, during which time petitioner has not received a formal answer from any defendant nor been permitted general discovery, Cities has been the only party consistently desirous of expediting the proceedings, and petitioner has always acquiesced in the delays. Pp. 391 U. S. 290-292.(f) Even assuming the disputed claim that petitioner was kept from obtaining general discovery of the other defendants during the period he sought to build a case against Cities, petitioner had discovery against the one party he is now opposing, and that party was a "tangential defendant," whose link to the other defendants was shown to be factually incorrect. Under those circumstances, it was petitioner's burden, which he did not meet, of showing a significant likelihood that discovery of the other defendants would be fruitful. Pp. 391 U. S. 292-294.(g) Petitioner has not shown any prejudice by not having been allowed to depose Carter, a former employee of Cities originally listed as one of petitioner's associates, concerning Jones' alleged interference with Carter's efforts as an intermediary between Cities and petitioner to sell the United States Government Iranian gasoline for military use, and even if Carter would not voluntarily have furnished petitioner information, petitioner has not explained why he did not try to secure Carter's testimony in 1961 (when the trial judge described petitioner's case as "extremely weak") or 1963, rather than waiting till 1964. Pp. 391 U. S. 295-297.(h) The time period to which petitioner's documentary requests pertain is one largely relating to activities outside the period covered by this phase of the lawsuit, and, in view of petitioner's failure (despite substantial discovery) to obtain significant evidence of conspiracy for the period during which it was alleged to have directly injured him, the trial court was warranted in denying the additional documentary discovery petitioner requested. Pp. 391 U. S. 297-298. Page 391 U. S. 2572. On the facts shown, summary judgment was correctly awarded to respondent, since petitioner was unable to show sufficient material facts to raise genuine issues for trial of his case against Cities. Pp. 391 U. S. 274-288.(a) After Iran had nationalized Anglo-Iranian's properties, Anglo-Iranian, contending that the nationalization violated international law, announced that it would protect its rights in any country and would sue any purchaser of Iranian oil. Petitioner's evidence showed that the other defendants and other American oil companies, fearful that, if Iranian nationalization of Anglo-Iranian's property succeeded, other countries would follow suit, refused to deal with any company handling Iranian oil. P. 391 U. S. 278.(b) When that compelling explanation for Cities' failure to purchase Iranian oil is coupled with Cities' showing that the Kuwait deal antedated nationalization, that Cities opposed the Consortium, and ultimately refused its minimal share therein, petitioner's suggestion that Cities was "bought off" becomes insupportable. Pp. 391 U. S. 278-279.(c) Petitioner's consistent argument that Cities' interests in this situation were opposed to those of the other defendants prompts him to insist that Cities' motive for conspiring is not controlling, but for petitioner to say that Cities' failure to deal with him showed Cities' participation in the conspiracy is to rely on motive. P. 391 U. S. 279.(d) A report prepared for transmission to Iranian premier Mossadegh in October, 1952, after Jones returned from Iran and Watson, Cities' senior vice-president, announced to petitioner that Cities was no longer interested in Iranian oil, is used by petitioner in two opposing ways, and does not further petitioner's theory of conspiracy. Pp. 391 U. S. 281-282.(e) A letter sent by Jones to the incoming Secretary of State and Attorney General in January, 1953, that the only solution was for Iran to reach an accommodation with the British, and a supporting legal memorandum that Iran, under international law, had the right to nationalize Anglo-Iranian's properties, likewise had no probative value for petitioner's case. Pp. 391 U. S. 282-283.(f) Petitioner's failure to sell oil to Richfield, of which Cities was a major, though not a controlling, stockholder, adds nothing to the case against Cities. Pp. 391 U. S. 283-284.(g) Jones' disassociating himself from Carter's efforts on petitioner's behalf to sell Iranian produced aviation gasoline to the Page 391 U. S. 258 United States Air Force occurred at a time when petitioner conceded that Cities was not yet a member of the conspiracy, and, in any case, seems to have constituted no more tan a desire by Jones not to be used in someone else's financial dealings. P. 391 U. S. 284.(h) In view of the business relationship between petitioner, Cities, and the other defendants, it is much more plausible to believe that Cities' interests coincided, rather than conflicted, with those of petitioner. Poller v. Columbia Broadcasting System, 368 U. S. 464 (1962), distinguished. Pp. 391 U. S. 284-286.(i) Petitioner's position that Cities' failure to deal with him (the one fact that petitioner has produced) is sufficiently probative of conspiracy to withstand summary judgment cannot be supported where no interest of Cities was shown to parallel the interests of the other defendants. Interstate Circuit, Inc. v. United States, 306 U. S. 208 (1939), and Theatre Enterprises, Inc. v. Paramount Distributing Corp., 346 U. S. 537 (1954), distinguished. Pp. 391 U. S. 286-288.3. The lower courts correctly held that amended Fed.Rule Civ.Proc. 56(e) placed upon petitioner the burden of producing evidence of conspiracy after Cities conclusively showed that the facts upon which petitioner relied to support his conspiracy allegation were not susceptible of the interpretation he sought to give them. Pp. 391 U. S. 288-290.361 F.2d 671, affirmed.

1975_74-1245

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Respondents filed a complaint in the United States District Court for the Western District of Pennsylvania in which they asserted that petitioner's employee insurance benefits and maternity leave regulations discriminated against women in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. IV). The District Court ruled in favor of respondents on the issue of petitioner's liability under that Act, and petitioner appealed to the Court of Appeals for the Third Circuit. That court held that it had jurisdiction of petitioner's appeal under 28 U.S.C. § 1291, and proceeded to affirm on the merits the judgment of the District Court. We Page 424 U. S. 740 granted certiorari, 421 U.S. 987 (1975), and heard argument on the merits. Though neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists. Mansfield, Coldwater & Lake Michigan R. Co. v. Swan, 111 U. S. 379 (1884). Because we conclude that the District Court's order was not appealable to the Court of Appeals, we vacate the judgment of the Court of Appeals with instructions to dismiss petitioner's appeal from the order of the District Court.Respondents' complaint, after alleging jurisdiction and facts deemed pertinent to their claim, prayed for a judgment against petitioner embodying the following relief:"(a) requiring that defendant establish nondiscriminatory hiring, payment, opportunity, and promotional plans and programs;""(b) enjoining the continuance by defendant of the illegal acts and practices alleged herein;""(c) requiring that defendant pay over to plaintiffs and to the members of the class the damages sustained by plaintiffs and the members of the class by reason of defendant's illegal acts and practices, including adjusted backpay, with interest, and an additional equal amount as liquidated damages, and exemplary damages;""(d) requiring that defendant pay to plaintiffs and to the members of the class the costs of this suit and a reasonable attorneys' fee, with interest; and""(e) such other and further relief as the Court deems appropriate."App. 19.After extensive discovery, respondents moved for partial summary judgment only as to the issue of liability. Fed.Rule Civ.Proc. 56(c). The District Court, on January 9, 1974, finding no issues of material fact in dispute, Page 424 U. S. 741 entered an order to the effect that petitioner's pregnancy-related policies violated Title VII of the Civil Rights Act of 1964. It also ruled that Liberty Mutual's hiring and promotion policies violated Title VII. [Footnote 1] Petitioner thereafter filed a motion for reconsideration, which was denied by the District Court. Its order of February 20, 1974, denying the motion for reconsideration, contains the following concluding language:"In its Order, the court stated it would enjoin the continuance of practices which the court found to be in violation of Title VII. The Plaintiffs were invited to submit the form of the injunction order, and the Defendant has filed Notice of Appeal and asked for stay of any injunctive order. Under these circumstances, the court will withhold the issuance of the injunctive order and amend the Order previously issued under the provisions of Fed.R.Civ.P. 54(b), as follows:""And now this 20th day of February, 1974, it is directed that final judgment be entered in favor of Plaintiffs that Defendant's policy of requiring female employees to return to work within three months of delivery of a child or be terminated is in violation of the provisions of Title VII of the Civil Rights Act of 1964; that Defendant's policy of denying disability income protection plan benefits to female employees for disabilities related to pregnancies or childbirth are [sic] in violation of Title VII of the Civil Rights Act of 1964, and that it is expressly directed that Judgment be entered for the Page 424 U. S. 742 Plaintiffs upon these claims of Plaintiffs' Complaint; there being no just reason for delay."372 F. Supp. 1146, 1164.It is obvious from the District Court's order that respondents, although having received a favorable ruling on the issue of petitioner's liability to them, received none of the relief which they expressly prayed for in the portion of their complaint set forth above. They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys' fees, but received none.Counsel for respondents when questioned during oral argument in this Court, suggested that at least the District Court's order of February 20 amounted to a declaratory judgment on the issue of liability pursuant to the provisions of 28 U.S.C. § 2201. Had respondents sought only a declaratory judgment, and no other form of relief, we would, of course, have a different case. But even if we accept respondents' contention that the District Court's order was a declaratory judgment on the issue of liability, it nonetheless left unresolved respondents' requests for an injunction, for compensatory and exemplary damages, and for attorneys' fees. It finally disposed of none of respondents' prayers for relief.The District Court and the Court of Appeals apparently took the view that, because the District Court made the recital required by Fed.Rule Civ.Proc. 54(b) that final judgment be entered on the issue of liability, and that there was no just reason for delay, the orders thereby became appealable as a final decision pursuant to 28 U.S.C. § 1291. We cannot agree with this application of the Rule and statute in question.Rule 54(b) [Footnote 2]"does not apply to a single claim Page 424 U. S. 743 action. . . . It is limited expressly to multiple claims actions in which 'one or more but less than all' of the multiple claims have been finally decided and are found otherwise to be ready for appeal."Sears, Roebuck & Co. v. Mackey, 351 U. S. 427, 351 U. S. 435 (1956). [Footnote 3] Here, however, respondents set forth but a single claim: that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964. They prayed for several different types of relief in the event that they sustained the allegations of their complaint, see Fed.Rule Civ.Proc. 8(a)(3), but their complaint advanced a single legal theory which was applied to only one set of facts. [Footnote 4] Thus, despite the fact that the District Court undoubtedly made the findings required Page 424 U. S. 744 under the Rule, had it been applicable, those findings do not in a case such as this make the order appealable pursuant to 28 U.S.C. § 1291. See Mackey, supra at 351 U. S. 437-438.We turn to consider whether the District Court's order might have been appealed by petitioner to the Court of Appeals under any other theory. The order, viewed apart from its discussion of Rule 54(b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability. Such judgments are by their terms interlocutory, see Fed.Rule Civ.Proc. 56(c), and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be "final" within the meaning of 28 U.S.C. § 1291. See, e.g., Borges v. Art Steel Co., 243 F.2d 350 (CA2 1957); Leonidakis v. International Telecoin Corp., 208 F.2d 934 (CA2 1953); Tye v. Hertz Drivurself Stations, 173 F.2d 317 (CA3 1949); Russell v. Barnes Foundation, 136 F.2d 654 (CA3 1943). Thus, the only possible authorization for an appeal from the District Court's order would be pursuant to the provisions of 28 U.S.C. § 1292.If the District Court had granted injunctive relief but had not ruled on respondents' other requests for relief, this interlocutory order would have been appealable under § 1292(a)(1). [Footnote 5] But, as noted above, the court did not issue an injunction. It might be argued that the order of the District Court, insofar as it failed to include the injunctive relief requested by respondents, is an interlocutory Page 424 U. S. 745 order refusing an injunction within the meaning of § 1292(a)(1). But even if this would have allowed respondents to then obtain review in the Court of Appeals, there was no denial of any injunction sought by petitioner, and it could not avail itself of that grant of jurisdiction.Nor was this order appealable pursuant to 28 U.S.C. § 1292(b). [Footnote 6] Although the District Court's findings made with a view to satisfying Rule 54(b) might be viewed as substantial compliance with the certification requirement of that section, there is no showing in this record that petitioner made application to the Court of Appeals within the 10 days therein specified. And that court's holding that its jurisdiction was pursuant to § 1291 makes it clear that it thought itself obliged to consider on the merits petitioner's appeal. There can be no assurance that had the other requirements of § 1292(b) been complied with, the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal.Were we to sustain the procedure followed here, we would condone a practice whereby a district court in virtually any case before it might render an interlocutory decision on the question of liability of the defendant, Page 424 U. S. 746 and the defendant would thereupon be permitted to appeal to the court of appeals without satisfying any of the requirements that Congress carefully set forth. We believe that Congress, in enacting present §§ 1291 and 1292 of Title 28, has been well aware of the dangers of an overly rigid insistence upon a "final decision" for appeal in every case, and has in those sections made ample provision for appeal of orders which are not "final" so as to alleviate any possible hardship. We would twist the fabric of the statute more than it will bear if we were to agree that the District Court's order of February 20, 1974, was appealable to the Court of Appeals.The judgment of the Court of Appeals is therefore vacated, and the case is remanded with instructions to dismiss the petitioner's appeal.It is so ordered

U.S. Supreme CourtLiberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737 (1976)Liberty Mutual Insurance Co. v. WetzelNo. 74-1245Argued January 19, 1976Decided March 23, 1976424 U.S. 737SyllabusRespondents filed a complaint alleging that petitioner's employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964, and seeking injunctive relief, damages, costs, and attorneys' fees. After ruling in respondents' favor on their motion for a partial summary judgment on the issue of petitioner's liability under the Act, the District Court, upon denying petitioner's motion for reconsideration, issued an amended order stating that injunctive relief would be withheld because petitioner had filed an appeal and had asked for a stay of any injunction, and directing that, pursuant to Fed.Rule Civ.Proc. 54(b), final judgment be entered for respondents, there being no just reason for delay. The Court of Appeals, holding that it had jurisdiction of petitioner's appeal under 28 U.S.C. § 1291, affirmed on the merits.Held:1. The District Court's order was not appealable as a final decision under § 1291. Pp. 424 U. S. 742-744.(a) Even assuming that the order was a declaratory judgment on the issue of liability, it nevertheless left unresolved and did not finally dispose of any of the respondents' prayers for relief. P. 424 U. S. 742.(b) The order did not become appealable as a final decision pursuant to § 1291 merely because it made the recital required by Rule 54(b), since that Rule applies only to multiple claim actions in which one or more but less than all of the claims have been finally decided and are found otherwise ready for appeal, and does not apply to a single-claim action such as this one, where the complaint advanced a single legal theory that was applied to only one set of facts. Pp. 424 U. S. 742-744.(c) The order, apart from its reference to Rule 54(b), constitutes a grant of partial summary judgment limited to the issue of petitioner's liability, is by its terms interlocutory, and, where Page 424 U. S. 738 damages or other relief remain to be resolved, cannot be considered "final" within the meaning of § 1291. P. 424 U. S. 744.2. Nor was the order appealable pursuant to 28 U.S.C. § 1292's provisions for interlocutory appeals. Pp. 424 U. S. 744-745.(a) Even if the order, insofar as it failed to include the requested injunctive relief, could be considered an interlocutory order refusing an injunction within the meaning of § 1292(a)(1), and thus would have allowed respondents then to obtain review in the Court of Appeals, there was no denial of any injunction sought by petitioner, and it could not avail itself of that grant of jurisdiction. Pp. 424 U. S. 744-745.(b) Even if the order could be considered as an order that the District Court certified for immediate appeal pursuant to § 1292(b) as involving a controlling question of law as to which there was substantial ground for difference of opinion, it does not appear that petitioner applied to the Court of Appeals for permission to appeal within 10 days as required by § 1292(b); moreover, there can be no assurance, had the other requirements of § 1292(b) been met, that the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal. P. 424 U. S. 745.511 F.2d 199, vacated and remanded.REHNQUIST, J., delivered the opinion of the Court, in which all Members joined except BLACKMUN, J., who took no part in the consideration or decision of the case. Page 424 U. S. 739

1959_443

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BRENNAN.Respondent transports steel and steel products by barge and maintains a terminal at Chickasaw, Alabama, where it performs maintenance and repair work on its barges. The employees at that terminal constitute a bargaining unit covered by a collective bargaining agreement negotiated by petitioner union. Respondent, between 1956 and 1958, laid off some employees, reducing the bargaining unit from 42 to 23 men. This reduction was due in part to respondent's contracting maintenance work, previously done by its employees, to other companies. The latter used respondent's supervisors to lay out the work and hired some of the laid-off employees of respondent (at reduced wages). Some were in fact assigned to work on respondent's barges. A number of employees signed a grievance which petitioner presented to respondent, the grievance reading:"We are hereby protesting the Company's actions of arbitrarily and unreasonably contracting out work to other concerns that could and previously has been performed by Company employees. ""This practice becomes unreasonable, unjust and discriminatory in lieu [sic] of the fact that, at present, Page 363 U. S. 576 there are a number of employees that have been laid off for about 1 and 1/2 years or more for allegedly lack of work. ""Confronted with these facts, we charge that the Company is in violation of the contract by inducing a partial lock-out, of a number of the employees who would otherwise be working were it not for this unfair practice."The collective agreement had both a "no strike" and a "no lockout" provision. It also had a grievance procedure which provided in relevant part as follows:"Issues which conflict with any Federal statute in its application as established by Court procedure or matters which are strictly a function of management shall not be subject to arbitration under this section. ""Should differences arise between the Company and the Union or its members employed by the Company as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise, there shall be no suspension of work on account of such differences but an earnest effort shall be made to settle such differences immediately in the following manner:""A. For Maintenance Employees:""First, between the aggrieved employees, and the Foreman involved;""Second, between a member or members of the Grievance Committee designated by the Union, and the Foreman and Master Mechanic.""* * * *" "Fifth, if agreement has not been reached the matter shall be referred to an impartial umpire for decision. The parties shall meet to decide on an umpire acceptable to both. If no agreement on selection of an umpire is reached, the parties shall jointly petition Page 363 U. S. 577 the United States Conciliation Service for suggestion of a list of umpires from which selection shall be made. The decision of the umpire will be final."Settlement of this grievance was not had, and respondent refused arbitration. This suit was then commenced by the union to compel it. [Footnote 1]The District Court granted respondent's motion to dismiss the complaint. 168 F. Supp. 702. It held, after hearing evidence, much of which went to the merits of the grievance, that the agreement did not "confide in an arbitrator the right to review the defendant's business judgment in contracting out work." Id. at 705. It further held that"the contracting out of repair and maintenance work, as well as construction work, is strictly a function of management not limited in any respect by the labor agreement involved here."Ibid. The Court of Appeals affirmed by a divided vote, 269 F.2d 633, 635, the majority holding that the collective agreement had withdrawn from the grievance procedure "matters which are strictly a function of management," and that contracting out fell in that exception. The case is here on a writ of certiorari. 361 U.S. 912.We held in Textile Workers v. Lincoln Mills, 353 U. S. 448, that a grievance arbitration provision in a collective agreement could be enforced by reason of § 301(a) of the Labor Management Relations Act [Footnote 2] and that the policy to be applied in enforcing this type of arbitration Page 363 U. S. 578 was that reflected in our national labor laws. Id. at 353 U. S. 456-457. The present federal policy is to promote industrial stabilization through the collective bargaining agreement. [Footnote 3] Id. at 353 U. S. 453-454. A major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the collective bargaining agreement. [Footnote 4]Thus, the run of arbitration cases, illustrated by Wilko v. Swan, 346 U. S. 427, becomes irrelevant to our problem. There, the choice is between the adjudication of cases or controversies in courts with established procedures or even special statutory safeguards, on the one hand, and the settlement of them in the more informal arbitration tribunal, on the other. In the commercial case, arbitration is the substitute for litigation. Here, arbitration is the substitute for industrial strife. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility evinced by courts toward arbitration of commercial agreements has no place here. For arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself.The collective bargaining agreement states the rights and duties of the parties. It is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. See Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. Page 363 U. S. 579 999, 1004-1005. The collective agreement covers the whole employment relationship. [Footnote 5] It calls into being a new common law -- the common law of a particular industry or of a particular plant. As one observer has put it: [Footnote 6]". . . [I]t is not unqualifiedly true that a collective bargaining agreement is simply a document by which the union and employees have imposed upon management limited, express restrictions of its otherwise absolute right to manage the enterprise, so that an employee's claim must fail unless he can point to a specific contract provision upon which the claim is founded. There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties. One cannot reduce all the rules governing a community like an industrial plant to fifteen or even fifty pages. Within the sphere of collective bargaining, the institutional characteristics Page 363 U. S. 580 and the governmental nature of the collective bargaining process demand a common law of the shop which implements and furnishes the context of the agreement. We must assume that intelligent negotiators acknowledged so plain a need unless they stated a contrary rule in plain words."A collective bargaining agreement is an effort to erect a system of industrial self-government. When most parties enter into contractual relationship, they do so voluntarily, in the sense that there is no real compulsion to deal with one another, as opposed to dealing with other parties. This is not true of the labor agreement. The choice is generally not between entering or refusing to enter into a relationship, for that in all probability preexists the negotiations. Rather, it is between having that relationship governed by an agreed-upon rule of law or leaving each and every matter subject to a temporary resolution dependent solely upon the relative strength, at any given moment, of the contending forces. The mature labor agreement may attempt to regulate all aspects of the complicated relationship, from the most crucial to the most minute over an extended period of time. Because of the compulsion to reach agreement and the breadth of the matters covered, as well as the need for a fairly concise and readable instrument, the product of negotiations (the written document) is, in the words of the late Dean Shulman,"a compilation of diverse provisions: some provide objective criteria almost automatically applicable; some provide more or less specific standards which require reason and judgment in their application; and some do little more than leave problems to future consideration with an expression of hope and good faith."Shulman, supra, at 1005. Gaps may be left to be filled in by reference to the practices of the particular industry and of the various shops covered by the agreement. Many of the specific practices Page 363 U. S. 581 which underlie the agreement may be unknown, except in hazy form, even to the negotiators. Courts and arbitration in the context of most commercial contracts are resorted to because there has been a breakdown in the working relationship of the parties; such resort is the unwanted exception. But the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties. The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement.The labor arbitrator performs functions which are not normal to the courts; the considerations which help him fashion judgments may indeed by foreign to the competence of courts."A proper conception of the arbitrator's function is basic. He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. . . ."Shulman, supra, at 1016.The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial Page 363 U. S. 582 common law -- the practices of the industry and the shop -- is equally a part of the collective bargaining agreement, although not expressed in it. The labor arbitrator is usually chosen because of the parties' confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties' objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs. The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed.The Congress, however, has, by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation Page 363 U. S. 583 that covers the asserted dispute. Doubts should be resolved in favor of coverage. [Footnote 7]We do not agree with the lower courts that contracting-out grievances were necessarily excepted from the grievance procedure of this agreement. To be sure, the agreement provides that "matters which are strictly a function of management shall not be subject to arbitration." But it goes on to say that, if "differences" arise or if "any local trouble of any kind" arises, the grievance procedure shall be applicable.Collective bargaining agreements regulate or restrict the exercise of management functions; they do not oust management from the performance of them. Management hires and fires, pays and promotes, supervises and plans. All these are part of its function, and, absent a collective bargaining agreement, it may be exercised freely except as limited by public law and by the willingness of employees to work under the particular, unilaterally imposed conditions. A collective bargaining agreement may treat only with certain specific practices, leaving the rest to management but subject to the possibility of work stoppages. When, however, an absolute no-strike clause is included in the agreement, then, in a very real sense, everything that management does is subject to the agreement, for either management is prohibited or limited in the action it takes or, if not, it is protected from interference by strikes. This comprehensive reach of the collective bargaining agreement does not mean, Page 363 U. S. 584 however, that the language, "strictly a function of management," has no meaning."Strictly a function of management" might be thought to refer to any practice of management in which, under particular circumstances prescribed by the agreement, it is permitted to indulge. But if courts, in order to determine arbitrability, were allowed to determine what is permitted and what is not, the arbitration clause would be swallowed up by the exception. Every grievance in a sense involves a claim that management has violated some provision of the agreement.Accordingly, "strictly a function of management" must be interpreted as referring only to that over which the contract gives management complete control and unfettered discretion. Respondent claims that the contracting out of work falls within this category. Contracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators. [Footnote 8] A specific collective bargaining agreement may exclude contracting out from the grievance procedure. Or a written collateral agreement may make clear that contracting out was not a matter for arbitration. In such a case, a grievance based solely on contracting out would not be arbitrable. Here, however, there is no such provision. Nor is there any showing that the parties designed the phrase "strictly a function of management" to encompass any and all forms of contracting out. In the absence of any Page 363 U. S. 585 express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.The grievance alleged that the contracting out was a violation of the collective bargaining agreement. There was, therefore, a dispute "as to the meaning and application of the provisions of this Agreement" which the parties had agreed would be determined by arbitration.The judiciary sits in these cases to bring into operation an arbitral process which substitutes a regime of peaceful settlement for the older regime of industrial conflict. Whether contracting out in the present case violated the agreement is the question. It is a question for the arbiter, not for the courts.Reversed

U.S. Supreme CourtSteelworkers v. Warrior & Gulf Co., 363 U.S. 574 (1960)United Steelworkers of America v. Warrior & Gulf Navigation Co.No. 443Argued April 27, 1960Decided June 20, 1960363 U.S. 574SyllabusThis suit under § 301 (a) of the Labor Management Relations Act, 1947, was brought by a labor union to compel arbitration of a grievance based upon the employer's practice of contracting out work while laying off employees who could have performed such work. The collective bargaining agreement between the parties contained "no strike" and "no lock-out" provisions, and set up a grievance procedure culminating in arbitration. It provided that "matters which are strictly a function of management shall not be subject to arbitration," but it also provided that,"Should differences arise . . . as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise,"the grievance procedure should be followed. The Court of Appeals ruled that deciding whether to contract out work was "strictly a function of management" within the meaning of the agreement, and it sustained a judgment of the District Court dismissing the complaint.Held: It erred in doing so, and the judgment is reversed. Pp. 363 U. S. 575-585.(a) In a suit under §301(a), judicial inquiry must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or to give the arbitrator power to make the award he made; an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute; and doubts should be resolved in favor of coverage. Pp. 363 U. S. 582-583.(b) In the absence of any express provision excluding a particular grievance from arbitration, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague, and the arbitration clause quite broad. Pp. 363 U. S. 583-585.(c) Since, in this case, the parties had agreed that any dispute "as to the meaning of this Agreement" would be determined by Page 363 U. S. 575 arbitration, it was for the arbitrator, not the courts, to decide whether the contracting out here involved violated the agreement. P. 363 U. S. 585.269 F.2d 633, reversed.

1975_74-754

MR. CHIEF JUSTICE BURGER announced the judgment of the Court in an opinion in which MR. JUSTICE WHITE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join.This case presents the question whether the warnings called for by Miranda v. Arizona, 384 U. S. 436 (1966), must be given to a grand jury witness who is called to testify about criminal activities in which he may have been personally involved; and whether, absent such warnings, false statements made to the grand jury must be suppressed in a prosecution for perjury based on those statements.(1)During the course of a grand jury investigation into narcotics traffic in San Antonio, Tex., federal prosecutors assigned to the Drug Enforcement Administration Task Force learned of an undercover narcotics officer's encounter with respondent in March, 1973. At that time, the agent had received information that respondent, who was employed as a bartender at a local tavern, was dealing in narcotics. The agent, accompanied by an informant, met respondent at the tavern and talked for several hours. During the meeting, respondent agreed to obtain heroin for the agent, and, to that end, placed several phone calls from the bar. He also requested and received $650 from the agent to make the purchase. Respondent left the tavern with the money so advanced to secure the heroin. However, an hour later, respondent returned to the bar without the narcotics and returned the agent's money. Respondent instructed the agent to telephone him at the bar that evening to make arrangements for the transaction. The agent tried, but was unable to contact respondent as directed. The record provides no explanation for respondent's failure to keep his appointment. No further action was taken by the agent, and the investigatory file on the matter Page 425 U. S. 567 was closed. The agent did, however, report the information to federal prosecutors. At that time, the Government was seeking information on local drug traffic to present to a special grand jury investigating illicit traffic in the area.Respondent was subpoenaed to testify before the grand jury on ay 2, 1973; this was approximately six weeks after the abortive narcotics transaction at the tavern where respondent was employed. When called into the grand jury room and after preliminary statements, the following colloquy occurred between the prosecutor and respondent:"Q. . . . Now, you are required to answer all the questions that I ask you except for the ones that you feel would tend to incriminate you. Do you understand that?""A. Do I answer all the questions you ask?""Q. You have to answer all the questions except for those you think will incriminate you in the commission of a crime. Is that clear?""A. Yes, sir.""Q. You don't have to answer questions which would incriminate you. All other questions you have to answer openly and truthfully. And, of course, if you do not answer those [questions] truthfully, in other words if you lie about certain questions, you could possibly be charged with perjury. Do you understand that?""A. Yes, sir.""* * * *" "Q. Have you contacted a lawyer in this matter?""A. I don't have one. I don't have the money to get one.""Q. Well, if you would like to have a lawyer, he Page 425 U. S. 568 cannot be inside this room. He can only be outside. You would be free to consult with him if you so chose. Now, if during the course of this investigation, the questions that we ask you, if you feel like you would like to have a lawyer outside to talk to, let me know."App. 5-6.During the questioning respondent admitted that he had previously been convicted of distributing drugs, that he had recently used heroin himself, and that he had purchased heroin as recently as five months previously. Despite this admitted experience with San Antonio's heroin traffic, respondent denied knowledge of the identity of any dealers, save for a street corner source named Juan. Respondent steadfastly denied either selling or attempting to sell heroin since the time of his conviction 15 years before.Respondent specifically disclaimed having discussed the sale of heroin with anyone during the preceding year and stated that he would not even try to purchase an ounce of heroin for $650. Respondent refused to amplify on his testimony when directly confronted by the prosecutor:"Q. Mr. Mandujano, our information is that you can tell us more about the heroin business here in San Antonio than you have today. Is there anything you would like to add telling us more about who sells heroin?""A. Well, sir, I couldn't help you because, you know, I don't get along with the guys and I just can't tell you, you know."Following this appearance, respondent was charged by a grand jury on June 13, 1973, in a two-count indictment with attempting to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, and for willfully and Page 425 U. S. 569 knowingly making a false material declaration to the grand jury in violation of 18 U.S.C. § 1623. [Footnote 1] The falsity of his statements was conceded; his sole claim was that the testimony before the grand jury should be suppressed because the Government failed to provide the warnings called for by Miranda. Following an evidentiary hearing, the District Court granted respondent's motion to suppress. The court held that respondent was a "putative" or "virtual" defendant when called before the grand jury; respondent had therefore been entitled to full Miranda warnings. 365 F. Supp. 155 (WD Tex.1973). [Footnote 2]The Court of Appeals affirmed. 496 F.2d 1050 (CA5 1974). It recognized that certain warnings had, in fact, been given to respondent at the outset of his grand jury appearance. But the court agreed with the District Court that "full Miranda warnings should have been accorded Mandujano who was in the position of a virtual or putative defendant." Id. at 1052. The essence of the Court of Appeals' holding is:"In order to deter the prosecuting officers from bringing a putative or virtual defendant before the grand jury, for the purpose of obtaining incriminating or Page 425 U. S. 570 perjur[i]ous testimony, the accused must be adequately apprised of his rights, or all of his testimony, incriminating and perjur[i]ous, will be suppressed."Id. at 1056. (Emphasis added.)In so ruling, the court undertook to distinguish its own holding in United States v. Orta, 253 F.2d 312 (1958), in which Judge Rives, speaking for the court, stated:"[A grand jury witness] might answer truthfully and thereafter assert the constitutional guaranty. Under no circumstances, however, could he commit perjury and successfully claim that the Constitution afforded him protection from prosecution for that crime. As said in Glickstein v. United States, [222 U.S. 139, 222 U. S. 142 (1911),] ' . . . the immunity afforded by the constitutional guaranty relates to the past, and does not endow the person who testifies with a license to commit perjury.'"Id. at 314. (Emphasis added; citations omitted.) In the Orta opinion, Judge Rives went on to observe:"The only debatable question is one of the supervision of the conduct of Government representatives in the interest of fairness. In United States v. Scully, 2 Cir., 1955, 225 F.2d 113, 116, the Court of Appeals for the Second Circuit held:"" . . . the mere possibility that the witness may later be indicated furnishes no basis for requiring that he be advised of his rights under the Fifth Amendment, when summoned to give testimony before a Grand Jury.""That holding is applicable to the present record. There is no showing that the Grand Jury before which Orta testified was seeking to indict him or any other person already identified."Ibid. Page 425 U. S. 571The Court of Appeals concluded that the "totality of the circumstances" commanded suppression of all the testimony on which the charge of perjury rested.We agree with the views expressed by Judge Rives in Orta, supra, and disagree with the Court of Appeals in the instant case; accordingly, we reverse.(2)The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges."Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice."Costello v. United States, 350 U. S. 359, 350 U. S. 362 (1956). Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance.Earlier we noted that the law vests the grand jury with substantial powers, because "[t]he grand jury's investigative power must be broad if its public responsibility is adequately to be discharged." United States v. Calandra, 414 U. S. 338, 414 U. S. 344 (1974); Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 700 (1972). Indispensable to the exercise of its power is the authority to compel the attendance and the testimony of witnesses, Kastigar v. United States, 406 U. S. 441, 406 U. S. 443 (1972), and to require the production of evidence, United States v. White, 322 U. S. 694 (1944). Page 425 U. S. 572When called by the grand jury, witnesses are thus legally bound to give testimony. Calandra, supra, at 414 U. S. 343. This principle has long been recognized. In United States v. Burr, 25 F. Cas. 38 (No. 14,692e) (Va. 1807), Mr. Chief Justice Marshall drew on English precedents, aptly described by Lord Chancellor Hardwicke in the 18th century, and long accepted in America as a hornbook proposition: "The public has a right to every man's evidence." This Court has repeatedly invoked this fundamental proposition when dealing with the powers of the grand jury. United States v. Nixon, 418 U. S. 683, 418 U. S. 709 (1974); Branzburg v. Hayes, supra at 408 U. S. 688; Kastigar v. United States, supra at 406 U. S. 443; United States v. Monia, 317 U. S. 424, 317 U. S. 432 (1943) (Frankfurter, J., dissenting).The grand jury's authority to compel testimony is not, of course, without limits. The same Amendment that establishes the grand jury also guarantees that "no person . . . shall be compelled in any criminal case to be a witness against himself. . . ." The duty to give evidence to a grand jury is therefore conditional; every person owes society his testimony, unless some recognized privilege is asserted.Under settled principles, the Fifth Amendment does not confer an absolute right to decline to respond in a grand jury inquiry; the privilege does not negate the duty to testify, but simply conditions that duty. The privilege cannot, for example, be asserted by a witness to protect others from possible criminal prosecution. Rogers v. United States, 340 U. S. 367 (1951); United States v. Murdock, 284 U. S. 141 (1931); Hale v. Henkel, 201 U. S. 43 (1906). Nor can it be invoked simply to protect the witness' interest in privacy. "Ordinarily, of course, a witness has no right of privacy before the grand jury." Calandra, supra at 414 U. S. 353. Page 425 U. S. 573The very availability of the Fifth Amendment privilege to grand jury witnesses, recognized by this Court in Counselman v. Hitchcock, 142 U. S. 547 (1892), suggests that occasions will often arise when potentially incriminating questions will be asked in the ordinary course of the jury's investigation. Probing questions to all types of witnesses is the stuff that grand jury investigations are made of; the grand jury's mission is, after all, to determine whether to make a presentment or return an indictment."The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes."Costello v. United States, supra at 350 U. S. 362.It is in keeping with the grand jury's historic function as a shield against arbitrary accusations to call before it persons suspected of criminal activity, so that the investigation can be complete. This is true whether the grand jury embarks upon an inquiry focused upon individuals suspected of wrongdoing, or is directed at persons suspected of no misconduct but who may be able to provide links in a chain of evidence relating to criminal conduct of others, or is centered upon broader problems of concern to society. It is entirely appropriate -- indeed imperative -- to summon individuals who may be able to illuminate the shadowy precincts of corruption and crime. Since the subject matter of the inquiry is crime, and often organized, systematic crime -- as is true with drug traffic -- it is unrealistic to assume that all of the witnesses capable of providing useful information will be pristine pillars of the community untainted by criminality.The Court has never ignored this reality of law enforcement. Speaking for the Court in Kastigar v. United States, MR. JUSTICE POWELL said:"[M]any offenses are of such a character that the Page 425 U. S. 574 only persons capable of giving useful testimony are those implicated in the crime."406 U.S. at 406 U. S. 446. MR. JUSTICE WHITE made a similar observation in the context of a state investigation:"[T]he very fact that a witness is called . . . is likely to be based upon knowledge, or at least a suspicion based on some information, that the witness is implicated in illegal activities. . . ."Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 102 (1964) (concurring opinion). Moreover, the Court has expressly recognized that "[t]he obligation to appear is no different for a person who may himself be the subject of the grand jury inquiry." United States v. Dionisio, 410 U. S. 1, 410 U. S. 10 n. 8 (1973).There is nothing new about the Court's recognition of this reality of grand jury inquiries. In one of the early cases dealing with the Fifth Amendment privilege, the Court observed: "[I]t is only from the mouths of those having knowledge of the [unlawful conduct] that the facts can be ascertained." Brown v. Walker, 161 U. S. 591, 161 U. S. 610 (1896).Accordingly, the witness, though possibly engaged in some criminal enterprise, can be required to answer before a grand jury, so long as there is no compulsion to answer questions that are self-incriminating; the witness can, of course, stand on the privilege, assured that its protection "is as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, 142 U.S. at 142 U. S. 562. The witness must invoke the privilege, however, as the "Constitution does not forbid the asking of criminative questions." United States v. Monia, 317 U.S. at 317 U. S. 433 (Frankfurter, J., dissenting)."The [Fifth] Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily Page 425 U. S. 575 in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment."Id. at 317 U. S. 427. Absent a claim of the privilege, the duty to give testimony remains absolute.The stage is therefore set when the question is asked. If the witness interposes his privilege, the grand jury has two choices. If the desired testimony is of marginal value, the grand jury can pursue other avenues of inquiry; if the testimony is thought sufficiently important, the grand jury can seek a judicial determination as to the bona fides of the witness' Fifth Amendment claim, Malloy v. Hogan, 378 U. S. 1, 378 U. S. 11-12 (1964); Hoffman v. United States, 341 U. S. 479, 341 U. S. 48-4687 (1951), in which case the witness must satisfy the presiding judge that the claim of privilege is not a subterfuge. If, in fact, "there is reasonable ground to apprehend danger to the witness from his being compelled to answer,'" Brown v. Walker, supra at 161 U. S. 599, the prosecutor must then determine whether the answer is of such overriding importance as to justify a grant of immunity to the witness.If immunity is sought by the prosecutor and granted by the presiding judge, the witness can then be compelled to answer, on pain of contempt, even though the testimony would implicate the witness in criminal activity. The reason for this is not hard to divine; Mr. Justice Frankfurter indicated as much in observing that immunity is the quid pro quo for securing an answer from the witness: "Immunity displaces the danger." Ullmann v. United States, 350 U. S. 422, 350 U. S. 439 (1956); see also Piemonte v. United States, 367 U. S. 556, 367 U. S. 560 (1961). Based on this recognition, federal Page 425 U. S. 576 statutes conferring immunity on witnesses in federal judicial proceedings, including grand jury investigations, are so familiar that they have become part of our "constitutional fabric.'" Lefkowitz v. Turley, 414 U. S. 70, 414 U. S. 81-82 (1973); Ullmann v. United States, supra at 350 U. S. 438. Immunity is the Government's ultimate tool for securing testimony that otherwise would be protected; unless immunity is conferred, however, testimony may be suppressed, along with its fruits, if it is compelled over an appropriate claim of privilege. United States v. Blue, 384 U. S. 251, 384 U. S. 255 (1966). On the other hand, when granted immunity, a witness once again owes the obligation imposed upon all citizens -- the duty to give testimony -- since immunity substitutes for the privilege.In this constitutional process of securing a witness' testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is -- and even the solemnity of the oath -- cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it. [Footnote 3] Page 425 U. S. 577Similarly, our cases have consistently -- indeed, without exception -- allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry. See, e.g., United States v. Knox, 396 U. S. 77 (1969); Bryson v. United States, 396 U. S. 64 (1969); Dennis v. United States, 384 U. S. 855 (1966); Kay v. United States, 303 U. S. 1 (1938); United States v. Kapp, 302 U. S. 214 (1937).In Bryson, a union officer was required by federal labor law to file an affidavit averring that he was not a Communist. The affidavit was false in material statements. In a collateral attack on his conviction, Bryson argued that, since the statute required him either to incriminate himself or lie, he could not lawfully be imprisoned for failure to comply. This Court rejected the contention:"[I]t cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government's right to ask questions -- lying is not one of them."396 U.S. at 396 U. S. 72. (Footnote omitted.)Even where a statutory scheme granted blanket immunity from further use of testimony, the Court has found perjured statements to fall outside the grant. In Glickstein v. United States, 222 U. S. 139 (1911), a bankrupt was indicated for perjury committed in the course of a bankruptcy proceeding. The Bankruptcy Act expressly conferred broad immunity on a bankrupt: "[N]o testimony given by him shall be offered in evidence against him in any criminal proceeding." Id. at 222 U. S. 140-141. The Court rejected the bankrupt's literalistic Page 425 U. S. 578 interpretation of the statute as conferring immunity from prosecution for perjury:"[T]he sanction of an oath and the imposition of a punishment for false swearing are inherently a part of the power to compel the giving of testimony, they are included in that grant of authority and are not prohibited by the immunity as to self-incrimination. . . . [I]t cannot be conceived that there is power to compel the giving of testimony where no right exists to require that the testimony shall be given under such circumstances and safeguards as to compel it to be truthful. . . . [T]he immunity afforded by the constitutional guarantee relates to the past, and does not endow the person who testifies with a license to commit perjury."Id. at 222 U. S. 141-142.(3)In this case, the Court of Appeals required the suppression of perjured testimony given by respondent, as a witness under oath, lawfully summoned before an investigative grand jury and questioned about matters directly related to the grand jury's inquiry. The court reached this result because the prosecutor failed to give Miranda warnings at the outset of Mandujano's interrogation. Those warnings were required, in the Court of Appeals' view, because Mandujano was a "virtual" or "putative" defendant -- that is, the prosecutor had specific information concerning Mandujano's participation in an attempted sale of heroin and the focus of the grand jury interrogation, as evidenced by the prosecutor's questions, centered on Mandujano's involvement in narcotics traffic. The fundamental error of the prosecutor, in the court's view, was to treat respondent in such a way as to "smack' of entrapment"; as a consequence, the court concluded that "elemental fairness" required the perjured Page 425 U. S. 579 testimony.to be suppressed. 496 F.2d at 1058, and n. 8.The court's analysis, premised upon the prosecutor's failure to give Miranda warnings, erroneously applied the standards fashioned by this Court in Miranda. Those warnings [Footnote 4] were aimed at the evils seen by the Court as endemic to police interrogation of a person in custody. [Footnote 5] Miranda addressed extrajudicial confessions or admissions procured in a hostile, unfamiliar environment which lacked procedural safeguards. The decision expressly rested on the privilege against compulsory self-incrimination; the prescribed warnings sought to negate the "compulsion" thought to be inherent in police station interrogation. But the Miranda Court simply did not perceive judicial inquiries and custodial interrogation as equivalents:"[T]he compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery."384 U.S. at 384 U. S. 461.The Court thus recognized that many official investigations, Page 425 U. S. 580 such as grand jury questioning, take place in a setting wholly different from custodial police interrogation. Indeed, the Court's opinion in Miranda reveals a focus on what was seen by the Court as police "coercion" derived from"factual studies [relating to] police violence and the 'third degree' . . . physical brutality -- beating, hanging, whipping -- and to sustained and protracted questioning incommunicado in order to extort confessions. . . ."Id. at 384 U. S. 445-446. To extend these concepts to questioning before a grand jury inquiring into criminal activity under the guidance of a judge is an extravagant expansion never remotely contemplated by this Court in Miranda, the dynamics of constitutional interpretation do not compel constant extension of every doctrine announced by the Court.The marked contrasts between a grand jury investigation and custodial interrogation have been commented on by the Court from time to time. MR. JUSTICE MARSHALL observed that the broad coercive powers of a grand jury are justified, because, " -- in contrast to the police -- it is not likely that [the grand jury] will abuse those powers." United States v. Mara, 410 U. S. 19, 410 U. S. 46 (1973) (dissenting opinion). See also In re Groban, 352 U. S. 330, 352 U. S. 347 (1957) (Black, J., dissenting).(4)The warnings volunteered by the prosecutor to respondent in this case were more than sufficient to inform him of his rights -- and his responsibilities -- and particularly of the consequences of perjury. To extend the concepts of Miranda, as contemplated by the Court of Appeals, would require that the witness be told that there was an absolute right to silence, and obviously any such warning would be incorrect, for there is no such right before a grand jury. Under Miranda, a person in police custody has, of course, an absolute right to decline Page 425 U. S. 581 to answer any question, incriminating or innocuous, see Michigan v. Mosley, 423 U. S. 96 (1975), whereas a grand jury witness, on the contrary, has an absolute duty to answer all questions, subject only to a valid Fifth Amendment claim. And even when the grand jury witness asserts the privilege, questioning need not cease, except as to the particular subject to which the privilege has been addressed. Cf. id. at 423 U. S. 103-104. Other lines of inquiry may properly be pursued.Respondent was also informed that, if he desired, he could have the assistance of counsel, but that counsel could not be inside the grand jury room. That statement was plainly a correct recital of the law. No criminal proceedings had been instituted against respondent; hence, the Sixth Amendment right to counsel had not come into play. Kirby v. Illinois, 406 U. S. 682 (1972). A witness "before a grand jury cannot insist, as a matter of constitutional right, on being represented by his counsel. . . ." In re Groban, supra at 352 U. S. 333. [Footnote 6] Under settled principles, the witness may not insist upon the presence of his attorney in the grand jury room. Fed.Rule Crim.Proc. 6(d).Respondent, by way of further explanation, was also warned that he could be prosecuted for perjury if he testified falsely. Since respondent was already under oath to testify truthfully, this explanation was redundant; it served simply to emphasize the obligation already imposed by the oath."Once a witness swears to give truthful answers, there is no requirement to 'warn him not to commit perjury or, conversely to direct him to tell the truth.' It would render the sanctity of the oath quite meaningless Page 425 U. S. 582 to require admonition to adhere to it."United States v. Winter, 348 F.2d 204, 210 (CA2 1965). (Emphasis added.) See also United States v. Nickels, 502 F.2d 1173, 1176 (CA7 1974).Similarly, a witness subpoenaed to testify before a petit jury and placed under oath has never been entitled to a warning that, if he violates the solemn oath to "tell the truth," he may be subject to a prosecution for perjury, for the oath itself is the warning. Nor has any case been cited to us holding that the absence of such warnings before a petit jury provides a shield against use of false testimony in a subsequent prosecution for perjury or in contempt proceedings. [Footnote 7]In any event, a witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury, any more than would be the case with false testimony before a petit jury or other duly constituted tribunal. [Footnote 8] Page 425 U. S. 583 In another context, this Court has refused to permit a witness to protect perjured testimony by proving a Miranda violation. In Harris v. New York, 401 U. S. 222 (1971), the Court held that, notwithstanding a Miranda violation:"[The Fifth Amendment] privilege cannot be construed to include the right to commit perjury."Id. at 401 U. S. 225. More recently, the Court reaffirmed this salutary principle:"[T]he shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances."Oregon v. Hass, 420 U. S. 714, 420 U. S. 722 (1975). See also Walder v. United States, 347 U. S. 62 (1954); United States v. DiGiovanni, 397 F.2d 409, 412 (CA7 1968); Cargill v. United States, 381 F.2d 849 (CA10 1967); United States v. DiMichele, 375 F.2d 959, 960 (CA3 1967).The fact that, here, the grand jury interrogation had focused on some of respondent's specific activities does not require that these important principles be jettisoned; nothing remotely akin to "entrapment" or abuse of process is suggested by what occurred here. Cf. Brown v. United States, 245 F.2d 549 (CA8 1957). Assuming, arguendo, that respondent was indeed a "putative defendant," that fact would have no bearing on the validity of a conviction for testifying falsely.The grand jury was appropriately concerned about the source of narcotics in the San Antonio area. The attempted Page 425 U. S. 584 heroin sale by respondent provided ample reason to believe that he had knowledge about local heroin suppliers. It was, therefore, entirely proper to question him with respect to his knowledge of narcotics trafficking. [Footnote 9] Respondent was free at every stage to interpose his constitutional privilege against self-incrimination, but perjury was not a permissible option. As the Tenth Circuit has held, the law provides "other methods for challenging the government's right to ask questions." United States v. Pommerening, 500 F.2d 92, 100 (1974).The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtUnited States v. Mandujano, 425 U.S. 564 (1976)United States v. MandujanoNo. 74-754Argued No;ember 5, 1975Decided May 19, 1976425 U.S. 564SyllabusAs a result of certain information concerning respondent's participation in an attempted sale of heroin, he was subpoenaed to testify before a grand jury investigating narcotics traffic in the area. The prosecutor warned him that he was not required to answer any questions that might incriminate him, that all other questions had to be answered truthfully or else he would be subject to a charge of perjury, and that, if he desired a lawyer he could have one, but that the lawyer could not be inside the grand jury room. Subsequently, respondent was charged with perjury for admittedly false statements made to the grand jury about his involvement in the attempted heroin sale. The District Court granted respondent's motion to suppress his grand jury testimony because he was not given the warnings called for by Miranda v. Arizona, 384 U. S. 436, holding that respondent was a "putative" or "virtual" defendant when called before the grand jury, and therefore entitled to full Miranda warnings. The Court of Appeals affirmed.Held: The judgment is reversed and the case is remanded. Pp. 425 U. S. 571-584; 425 U. S. 584-609; 609.496 F.2d 1050, reversed and remanded.THE CHIEF JUSTICE, joined by MR. JUSTICE WHITE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST, concluded that Miranda warnings need not be given to a grand jury witness who is called to testify about criminal activities in which he may have been personally involved, and that therefore the failure to give such warnings is no basis for having false statements made to the grand jury suppressed in a subsequent prosecution of the witness for perjury based on those statements. Pp. 425 U. S. 571-584.MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded that, even when the privilege against compulsory self-incrimination is implicated, when false answers are given, the witness may consistently with the Fifth Amendment privilege be prosecuted for perjury; that, in the circumstances of this case, respondent's false answers were not induced by governmental tactics so unfair as to constitute prosecution for perjury a violation of the Page 425 U. S. 565 Due Process Clause of the Fifth Amendment; that, in the absence of a knowing waiver of the privilege against compulsory self-incrimination, the Fifth Amendment requires that testimony obtained by calling a putative defendant before a grand jury and compelling him to testify regarding the suspected crime be unavailable as evidence in a later prosecution for that crime; and that, given the potential prejudice to a putative defendant's privilege against compulsory self-incrimination when called and compelled to testify before a grand jury and the ability of counsel to help avoid that prejudice, some guidance by counsel is required. Pp. 425 U. S. 584-609.MR. JUSTICE STEWART, joined by MR. JUSTICE BLACKMUN, concluded that the Fifth Amendment privilege against compulsory self-incrimination did not require the suppression of the respondent's grand jury testimony, since that testimony was relevant only to his prosecution for perjury, and was not introduced in the prosecution for attempting to distribute heroin, and that this was not a case where it could plausibly be argued that the perjury prosecution must be barred because of prosecutorial conduct amounting to a denial of due process. P. 425 U. S. 609.BURGER, C.J., announced the Court's judgment and delivered an opinion, in which WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 425 U. S. 584. STEWART, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 425 U. S. 609. STEVENS, J., took no part in the consideration or decision of the case. Page 425 U. S. 566

1998_97-1625

Syllabus(c) Saying that the Ninth Circuit's conclusion required a more extended examination of the possible factual underpinnings than it received is not necessarily to call for the fullest market analysis. Not every case attacking a restraint not obviously anticompetitive is a candidate for plenary market examination. There is generally no categorical line between restraints giving rise to an intuitively obvious inference of anti competitive effect and those that call for more detailed treatment. What is required is an enquiry meet for the case, looking to a restraint's circumstances, details, and logic. Here, a less quick look was required for the initial assessment of the CDA's advertising restrictions. Pp. 779-781.128 F.3d 720, vacated and remanded.SOUTER, 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 REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, KENNEDY, and GINSBURG, JJ., joined, post, p. 781.Peter M. Sfikas argued the cause for petitioner. With him on the briefs were Scott M. Mendel, Erik F. Dyhrkopp, and Edward M. Graham.Deputy Solicitor General Wallace argued the cause for respondent. With him on the brief were Solicitor General Waxman, Assistant Attorney General Klein, Paul R. Q. Wolfson, Debra A. Valentine, John F. Daly, Joanne L. Levine, and Elizabeth R. Hilder.**Briefs of amici curiae urging reversal were filed for the American College for Advancement in Medicine by Elizabeth Toni Guarino, William C. MacLeod, and Robert A. Skitol; for the American Dental Association et al. by Jack R. Bierig and Virginia A. Seitz; for the American Society of Association Executives by Jerry A. Jacobs, Paul M. Smith, and Nory Miller; and for the National Collegiate Athletic Association by Roy T. Englert, Jr., Donald M. Falk, Gregory L. Curtner, Stephen M. Shapiro, Michael W McConnell, Michele L. Odorizzi, and Elsa Kircher Cole.A brief of amici curiae urging affirmance was filed for the State of Arizona et al. by James E. Ryan, Attorney General of Illinois, Don R. Sampen, Assistant Attorney General, Betty D. Montgomery, Attorney General of Ohio, and Thomas G. Lindgren, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows:Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren759JUSTICE SOUTER delivered the opinion of the Court. There are two issues in this case: whether the jurisdiction of the Federal Trade Commission extends to the California Dental Association (CDA), a nonprofit professional association, and whether a "quick look" sufficed to justify finding that certain advertising restrictions adopted by the CDA violated the antitrust laws. We hold that the Commission's jurisdiction under the Federal Trade Commission Act (FTC Act) extends to an association that, like the CDA, provides substantial economic benefit to its for-profit members, but that where, as here, any anticompetitive effects of given restraints are far from intuitively obvious, the rule of reason demands a more thorough enquiry into the consequences of those restraints than the Court of Appeals performed.IThe CDA is a voluntary nonprofit association of local dental societies to which some 19,000 dentists belong, including about three-quarters of those practicing in the State. In re California Dental Assn., 121 F. T. C. 190, 196-197 (1996). The CDA is exempt from federal income tax under 26 U. S. C. § 501(c)(6), covering "[b]usiness leagues, chambersof California, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Michael F. Easley of North Carolina, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Jose A. Fuentes-Agostini of Puerto Rico, Jeffrey B. Pine of Rhode Island, John Knox Walkup of Tennessee, Jan Graham of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin.James S. Turner and Betsy E. Lehrfeld filed a brief for the Consumer Dental Choice Project of the National Institute for Science, Law and Public Policy, Inc., as amicus curiae.760of commerce, real-estate boards, [and] boards of trade," although it has for-profit subsidiaries that give its members advantageous access to various sorts of insurance, including liability coverage, and to financing for their real estate, equipment, cars, and patients' bills. The CDA lobbies and litigates in its members' interests, and conducts marketing and public relations campaigns for their benefit. 128 F.3d 720, 723 (CA9 1997).The dentists who belong to the CDA through these associations agree to abide by a Code of Ethics (Code) including the following § 10:"Although any dentist may advertise, no dentist shall advertise or solicit patients in any form of communication in a manner that is false or misleading in any material respect. In order to properly serve the public, dentists should represent themselves in a manner that contributes to the esteem of the public. Dentists should not misrepresent their training and competence in any way that would be false or misleading in any material respect." App. 33.The CDA has issued a number of advisory opinions interpreting this section,l and through separate advertising1 The advisory opinions, which substantially mirror parts of the California Business and Professions Code, see Cal. Bus. & Prof. Code Ann. §§ 651, 1680 (West 1999), include the following propositions:"A statement or claim is false or misleading in any material respect when it:"a. contains a misrepresentation of fact;"b. is likely to mislead or deceive because in context it makes only a partial disclosure of relevant facts;"c. is intended or is likely to create false or unjustified expectations of favorable results and/or costs;"d. relates to fees for specific types of services without fully and specifically disclosing all variables and other relevant factors;761guidelines intended to help members comply with the Code and with state law the CDA has advised its dentists of disclosures they must make under state law when engaging in discount advertising.2Responsibility for enforcing the Code rests in the first instance with the local dental societies, to which applicants for CDA membership must submit copies of their own advertisements and those of their employers or referral services to assure compliance with the Code. The local societies also actively seek information about potential Code violations by applicants or CDA members. Applicants who refuse to withdraw or revise objectionable advertisements may be denied membership; and members who, after a hearing, remain"e. contains other representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived."Any communication or advertisement which refers to the cost of dental services shall be exact, without omissions, and shall make each service clearly identifiable, without the use of such phrases as 'as low as,' 'and up,' 'lowest prices,' or words or phrases of similar import."Any advertisement which refers to the cost of dental services and uses words of comparison or relativity-for example, 'low fees'-must be based on verifiable data substantiating the comparison or statement of relativity. The burden shall be on the dentist who advertises in such terms to establish the accuracy of the comparison or statement of relativity.""Advertising claims as to the quality of services are not susceptible to measurement or verification; accordingly, such claims are likely to be false or misleading in any material respect." 128 F.3d 720, 723-724 (CA9 1997) (some internal quotation marks omitted).2 The disclosures include:"1. The dollar amount of the nondiscounted fee for the service[.]"2. Either the dollar amount of the discount fee or the percentage ofthe discount for the specific service[.]"3. The length of time that the discount will be offered[.] "4. Verifiable fees[.]"5. [The identity of] [s]pecific groups who qualify for the discount or any other terms and conditions or restrictions for qualifying for the discount." Id., at 724.762similarly recalcitrant are subject to censure, suspension, or expulsion from the CDA. 128 F. 3d, at 724.The Commission brought a complaint against the CDA, alleging that it applied its guidelines so as to restrict truthful, non deceptive advertising, and so violated § 5 of the FTC Act, 38 Stat. 717, 15 U. S. C. § 45.3 The complaint alleged that the CDA had unreasonably restricted two types of advertising: price advertising, particularly discounted fees, and advertising relating to the quality of dental services. Complaint ~ 7. An Administrative Law Judge (ALJ) held the Commission to have jurisdiction over the CDA, which, the ALJ noted, had itself "stated that a selection of its programs and services has a potential value to members of between $22,739 and $65,127," 121 F. T. C., at 207. He found that, although there had been no proof that the CDA exerted market power, no such proof was required to establish an antitrust violation under In re Mass. Bd. of Registration in Optometry, 110 F. T. C. 549 (1988), since the CDA had unreasonably prevented members and potential members from using truthful, nondeceptive advertising, all to the detriment of both dentists and consumers of dental services. He accordingly found a violation of § 5 of the FTC Act. 121The Commission adopted the factual findings of the ALJ except for his conclusion that the CDA lacked market power, with which the Commission disagreed. The Commission treated the CDA's restrictions on discount advertising as illegal per se. 128 F. 3d, at 725. In the alternative, the Commission held the price advertising (as well as the nonprice) restrictions to be violations of the Sherman and FTC Acts3 The FTC Act's prohibition of unfair competition and deceptive acts or practices, 15 U. S. C. § 45(a)(I), overlaps the scope of § 1 of the Sherman Act, 15 U. S. C. § 1, aimed at prohibiting restraint of trade, FTC v. Indiana Federation of Dentists, 476 U. S. 447, 454-455 (1986), and the Commission relied upon Sherman Act law in adjudicating this case, In re California Dental Assn., 121 F. T. C. 190, 292, n. 5 (1996).763under an abbreviated rule-of-reason analysis. One Commissioner concurred separately, arguing that the Commission should have applied the Mass. Bd. standard, not the per se analysis, to the limitations on price advertising. Another Commissioner dissented, finding the evidence insufficient to show either that the restrictions had an anticompetitive effect under the rule of reason, or that the CDA had market power. 128 F. 3d, at 725.The Court of Appeals for the Ninth Circuit affirmed, sustaining the Commission's assertion of jurisdiction over the CDA and its ultimate conclusion on the merits. Id., at 730. The court thought it error for the Commission to have applied per se analysis to the price advertising restrictions, finding analysis under the rule of reason required for all the restrictions. But the Court of Appeals went on to explain that the Commission had properly"applied an abbreviated, or 'quick look,' rule of reason analysis designed for restraints that are not per se unlawful but are sufficiently anticompetitive on their face that they do not require a full-blown rule of reason inquiry. See [National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 109110, and n. 39 (1984)] ('The essential point is that the rule of reason can sometimes be applied in the twinkling of an eye.' [Ibid. (citing P. Areeda, The "Rule of Reason" in Antitrust Analysis: General Issues 37-38 (Federal Judicial Center, June 1981) (parenthetical omitted)).] It allows the condemnation of a 'naked restraint' on price or output without an 'elaborate industry analysis.' Id., at 109." Id., at 727.The Court of Appeals thought truncated rule-of-reason analysis to be in order for several reasons. As for the restrictions on discount advertising, they "amounted in practice to a fairly 'naked' restraint on price competition itself," ibid. The CDA's procompetitive justification, that the re-764strictions encouraged disclosure and prevented false and misleading advertising, carried little weight because "it is simply infeasible to disclose all of the information that is required," id., at 728, and "the record provides no evidence that the rule has in fact led to increased disclosure and transparency of dental pricing," ibid. As to nonprice advertising restrictions, the court said that"[t]hese restrictions are in effect a form of output limitation, as they restrict the supply of information about individual dentists' services. See Areeda & Hovenkamp, Antitrust Law ~ 1505 at 693-94 (Supp. 1997) .... The restrictions may also affect output more directly, as quality and comfort advertising may induce some customers to obtain nonemergency care when they might not otherwise do so .... Under these circumstances, we think that the restriction is a sufficiently naked restraint on output to justify quick look analysis." Ibid.The Court of Appeals went on to hold that the Commission's findings with respect to the CDA's agreement and intent to restrain trade, as well as on the effect of the restrictions and the existence of market power, were all supported by substantial evidence. Id., at 728-730. In dissent, Judge Real took the position that the Commission's jurisdiction did not cover the CDA as a nonprofit professional association engaging in no commercial operations. Id., at 730. But even assuming jurisdiction, he argued, full-bore rule-ofreason analysis was called for, since the disclosure requirements were not naked restraints and neither fixed prices nor banned nondeceptive advertising. Id., at 730-731.We granted certiorari to resolve conflicts among the Circuits on the Commission's jurisdiction over a nonprofit professional association 4 and the occasions for abbreviated4 Compare In re American Medical Assn., 94 F. T. C. 701, 983-984, aff'd, 638 F.2d 443 (CA2 1980), aff'd by an equally divided Court, 455 U. S. 676 (1982) (per curiam), and FTC v. National Comm'n on Egg Nutrition, 517765rule-of-reason analysis.5 524 U. S. 980 (1998). We now vacate the judgment of the Court of Appeals and remand.IIThe FTC Act gives the Commission authority over "persons, partnerships, or corporations," 15 U. S. C. § 45(a)(2), and defines "corporation" to include "any company ... or association, incorporated or unincorporated, without shares of capital or capital stock or certificates of interest, except partnerships, which is organized to carry on business for its own profit or that of its members," § 44. Although the Circuits have not agreed on the precise extent of this definition, see n. 4, supra, the Commission has long held that some circumstances give it jurisdiction over an entity that seeks no profit for itself. While the Commission has claimed to have jurisdiction over a nonprofit entity if a substantial part of its total activities provides pecuniary benefits to its members, see In re American Medical Assn., 94 F. T. C. 701, 983-984 (1980), respondent now advances the slightly different formulation that the Commission has jurisdiction "over anticompetitive practices by nonprofit associations whose activities provid[e] substantial economic benefits to their for-profit members' businesses." Brief for Respondent 20.Respondent urges deference to this interpretation of the Commission's jurisdiction as reasonable. Id., at 25-26 (citing Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U. S. 354, 380-382F. 2d 485, 487-488 (CA7 1975), with Community Blood Bank v. FTC, 4055 Cf. Bogan v. Hodgkins, 166 F.3d 509, 514, and n. 6 (CA2 1999); United States v. Brown University, 5 F.3d 658, 669 (CA3 1993); Chicago Professional Sports Limited Partnership v. National Basketball Assn., 961 F.2d 667, 674-676 (CA7 1992); Law v. National Collegiate Athletic Assn., 134 F.3d 1010, 1020 (CAlO 1998); U. S. Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 589, 594-595 (CAl1993).766(1988) (SCALIA, J., concurring) (Chevron deference applies to agency's interpretation of its own statutory jurisdiction)). But we have no occasion to review the call for deference here, the interpretation urged in respondent's brief being clearly the better reading of the statute under ordinary principles of construction.The FTC Act is at pains to include not only an entity "organized to carry on business for its own profit," 15 U. S. C. § 44, but also one that carries on business for the profit "of its members," ibid. While such a supportive organization may be devoted to helping its members in ways beyond immediate enhancement of profit, no one here has claimed that such an entity must devote itself single-mindedly to the profit of others. It could, indeed, hardly be supposed that Congress intended such a restricted notion of covered supporting organizations, with the opportunity this would bring with it for avoiding jurisdiction where the purposes of the FTC Act would obviously call for asserting it.Just as the FTC Act does not require that a supporting organization must devote itself entirely to its members' profits, neither does the Act say anything about how much of the entity's activities must go to raising the members' bottom lines. There is accordingly no apparent reason to let the statute's application turn on meeting some threshold percentage of activity for this purpose, or even satisfying a softer formulation calling for a substantial part of the nonprofit entity's total activities to be aimed at its members' pecuniary benefit. To be sure, proximate relation to lucre must appear; the FTC Act does not cover all membership organizations of profit-making corporations without more, and an organization devoted solely to professional education may lie outside the FTC Act's jurisdictional reach, even though the quality of professional services ultimately affects the profits of those who deliver them.There is no line drawing exercise in this case, however, where the CDA's contributions to the profits of its individual767members are proximate and apparent. Through for-profit subsidiaries, the CDA provides advantageous insurance and preferential financing arrangements for its members, and it engages in lobbying, litigation, marketing, and public relations for the benefit of its members' interests. This congeries of activities confers far more than de minimis or merely presumed economic benefits on CDA members; the economic benefits conferred upon the CDA's profit-seeking professionals plainly fall within the object of enhancing its members' "profit," 6 which the FTC Act makes the jurisdictional touch-6 This conclusion is consistent with holdings by a number of Courts of Appeals. In FTC v. National Comm'n on Egg Nutrition, the Court of Appeals held that a nonprofit association "organized for the profit of the egg industry," 517 F. 2d, at 488, fell within the Commission's jurisdiction. In American Medical Assn. v. FTC, 638 F.2d 443 (CA2 1980), the Court of Appeals held that the "business aspects," id., at 448, of the AMA's activities brought it within the Commission's reach. These cases are consistent with our conclusion that an entity organized to carryon activities that will confer greater than de minimis or presumed economic benefits on profit-seeking members certainly falls within the Commission's jurisdiction. In Community Blood Bank v. FTC, the Court of Appeals addressed the question whether the Commission had jurisdiction over a blood bank and an association of hospitals. It held that "the question of the jurisdiction over the corporations or other associations involved should be determined on an ad hoc basis," 405 F. 2d, at 1018, and that the Commission's jurisdiction extended to "any legal entity without shares of capital which engages in business for profit within the traditional meaning of that language," ibid. (emphasis deleted). The Court of Appeals also said that "[a]ccording to a generally accepted definition 'profit' means gain from business or investment over and above expenditures, or gain made on business or investment where both receipts or payments are taken into account," id., at 1017, although in the same breath it noted that the term's "meaning must be derived from the context in which it is used," id., at 1016. Our decision here is fully consistent with Community Blood Bank, because the CDA contributes to the profits of at least some of its members, even on a restrictive definition of profit as gain above expenditures. (It should go without saying that the FTC Act does not require for Commission jurisdiction that members of an entity turn a profit on their membership, but only that the entity be organized to carryon business for members' profit.) Nonetheless, we do not, and indeed, on the facts here, could768stone. There is no difficulty in concluding that the Commission has jurisdiction over the CDA.The logic and purpose of the FTC Act comport with this result. The FTC Act directs the Commission to "prevent" the broad set of entities under its jurisdiction "from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce." 15 U. S. C. § 45(a)(2). Nonprofit entities organized on behalf of for-profit members have the same capacity and derivatively, at least, the same incentives as for-profit organizations to engage in unfair methods of competition or unfair and deceptive acts. It may even be possible that a nonprofit entity up to no good would have certain advantages, not only over a for-profit member but over a for-profit membership organization as well; it would enjoy the screen of superficial disinterest while devoting itself to serving the interests of its members without concern for doing more than breaking even.Nor, contrary to petitioner's argument, is the legislative history inconsistent with this interpretation of the Commission's jurisdiction. Although the versions of the FTC Act first passed by the House and the Senate defined "corporation" to refer only to incorporated, joint stock, and sharecapital companies organized to carry on business for profit, see H. R. Conf. Rep. No. 1142, 63d Cong., 2d Sess., 11, 14 (1914), the Conference Committee subsequently revised the definition to its present form, an alteration that indicates annot, decide today whether the Commission has jurisdiction over nonprofit organizations that do not confer profit on for-profit members but do, for example, show annual income surpluses, engage in significant commerce, or compete in relevant markets with for-profit players. We therefore do not foreclose the possibility that various paradigms of profit might fall within the ambit of the FTC Act. Nor do we decide whether a purpose of contributing to profit only in a presumed sense, as by enhancing professional educational efforts, would implicate the Commission's jurisdiction.769intention to include nonprofit entities.7 And the legislative history, like the text of the FTC Act, is devoid of any hint at an exemption for professional associations as such.We therefore conclude that the Commission had jurisdiction to pursue the claim here, and turn to the question whether the Court of Appeals devoted sufficient analysis to sustain the claim that the advertising restrictions promulgated by the CDA violated the FTC Act.IIIThe Court of Appeals treated as distinct questions the sufficiency of the analysis of anticompetitive effects and the substantiality of the evidence supporting the Commission's conclusions. Because we decide that the Court of Appeals erred when it held as a matter of law that quick-look analysis was appropriate (with the consequence that the Commission's abbreviated analysis and conclusion were sustainable), we do not reach the question of the substantiality of the evidence supporting the Commission's conclusion.8In National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85 (1984), we held that a "naked restraint on price and output requires some competitive jus-7 A letter from Bureau of Corporations Commissioner Joseph E. Davies to Senator Francis G. Newlands, the bill's sponsor and a member of the Conference Committee, written August 8, 1914, before the Conference Committee revisions, included a memorandum dated August 7, 1914, that expressed concern that the versions of the bill passed by the House and the Senate would not extend jurisdiction to purportedly nonprofit organizations, which might "furnish convenient vehicles for common understandings looking to the limitation of output and the fixing of prices contrary to law." Trade Commission Bill: Letter from the Commissioner of Corporations to the Chairman of the Senate Comm. on Interstate Commerce, Transmitting Certain Suggestions Relative to the Bill (H. R. 15613) to Create a Federal Trade Commission, 63d Cong., 2d Sess., 3 (1914).8We leave to the Court of Appeals the question whether on remand it can effectively assess the Commission's decision for substantial evidence on the record, or whether it must remand to the Commission for a more extensive rule-of-reason analysis on the basis of an enhanced record.770tification even in the absence of a detailed market analysis." Id., at 110. Elsewhere, we held that "no elaborate industry analysis is required to demonstrate the anticompetitive character of" horizontal agreements among competitors to refuse to discuss prices, National Soc. of Professional Engineers v. United States, 435 U. S. 679, 692 (1978), or to withhold a particular desired service, FTC v. Indiana Federation of Dentists, 476 U. S. 447, 459 (1986) (quoting National Soc. of Professional Engineers, supra, at 692). In each of these cases, which have formed the basis for what has come to be called abbreviated or "quick-look" analysis under the rule of reason, an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets. In National Collegiate Athletic Assn., the league's television plan expressly limited output (the number of games that could be televised) and fixed a minimum price. 468 U. S., at 99-100. In National Soc. of Professional Engineers, the restraint was "an absolute ban on competitive bidding." 435 U. S., at 692. In Indiana Federation of Dentists, the restraint was "a horizontal agreement among the participating dentists to withhold from their customers a particular service that they desire." 476 U. S., at 459. As in such cases, quick-look analysis carries the day when the great likelihood of anticompetitive effects can easily be ascertained. See Law v. National Collegiate Athletic Assn., 134 F.3d 1010, 1020 (CAlO 1998) (explaining that quick-look analysis applies "where a practice has obvious anticompetitive effects"); Chicago Professional Sports Limited Partnership v. National Basketball Assn., 961 F.2d 667, 674-676 (CA7 1992) (finding quick-look analysis adequate after assessing and rejecting logic of proffered procompetitive justifications); cf. United States v. Brown University, 5 F.3d 658, 677-678 (CA3 1993) (finding full rule-of-reason analysis required where universities sought to provide financial aid to needy students and noting by way of contrast that the agree-771ments in National Soc. of Professional Engineers and Indiana Federation of Dentists "embodied a strong economic self-interest of the parties to them").The case before us, however, fails to present a situation in which the likelihood of anticompetitive effects is comparably obvious. Even on JUSTICE BREYER'S view that bars on truthful and verifiable price and quality advertising are prima facie anticompetitive, see post, at 784-785 (opinion concurring in part and dissenting in part), and place the burden of procompetitive justification on those who agree to adopt them, the very issue at the threshold of this case is whether professional price and quality advertising is sufficiently verifiable in theory and in fact to fall within such a general rule. Ultimately our disagreement with JUSTICE BREYER turns on our different responses to this issue. Whereas he accepts, as the Ninth Circuit seems to have done, that the restrictions here were like restrictions on advertisement of price and quality generally, see, e. g., post, at 785, 787, 790, it seems to us that the CDA's advertising restrictions might plausibly be thought to have a net procompetitive effect, or possibly no effect at all on competition. The restrictions on both discount and nondiscount advertising are, at least on their face, designed to avoid false or deceptive advertising 9 in a market characterized by striking disparities between the information available to the professional and the patient.10 Cf. Carr & Mathewson, The Eco-9 That false or misleading advertising has an anticompetitive effect, as that term is customarily used, has been long established. Cf. FTC v. Algoma Lumber Co., 291 U. S. 67, 79-80 (1934) (finding a false advertisement to be unfair competition).10 "The fact that a restraint operates upon a profession as distinguished from a business is, of course, relevant in determining whether that particular restraint violates the Sherman Act. It would be unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas. The public service aspect, and other features of the professions, may require that a particular practice, which could772nomics of Law Firms: A Study in the Legal Organization of the Firm, 33 J. Law & Econ. 307, 309 (1990) (explaining that in a market for complex professional services, "inherent asymmetry of knowledge about the product" arises because "professionals supplying the good are knowledgeable [whereas] consumers demanding the good are uninformed"); Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84 Q. J. Econ. 488 (1970) (pointing out quality problems in market characterized by asymmetrical information). In a market for professional services, in which advertising is relatively rare and the comparability of service packages not easily established, the difficulty for customers or potential competitors to get and verify information about the price and availability of services magnifies the dangers to competition associated with misleading advertising. What is more, the quality of professional services tends to resist either calibration or monitoring by individual patients or clients, partly because of the specialized knowledge required to evaluate the services, and partly because of the difficulty in determining whether, and the degree to which, an outcome is attributable to the quality of services (like a poor job of tooth filling) or to something else (like a very tough walnut). See Leland, Quacks, Lemons, and Licensing: A Theory of Minimum Quality Standards, 87 J. Pol. Econ. 1328, 1330 (1979); 1 B. Furrow, T. Greaney, S. Johnson, T. Jost, & R. Schwartz, Health Law § 3-1, p. 86 (1995) (describing the common view that "the lay public is incapable of adequately evaluating the quality of medical services"). Patients' attachments to particular professionals, the rationality of which is difficult to assess, complicate the picture even further. Cf. Evans, Professionals and the Production Function: Can Competition Policy Improve Efficiency in the Licensed Professions?, in Occupational Licensure and Regulation 235-236 (S. Rotten-properly be viewed as a violation of the Sherman Act in another context, be treated differently." Goldfarb v. Virginia State Bar, 421 U. S. 773, 788-789, n. 17 (1975).773berg ed. 1980) (describing long-term relationship between professional and client not as "a series of spot contracts" but rather as "a long-term agreement, often implicit, to deal with each other in a set of future unspecified or incompletely specified circumstances according to certain rules," and adding that "[i]t is not clear how or if these [implicit contracts] can be reconciled with the promotion of effective price competition in individual spot markets for particular services"). The existence of such significant challenges to informed decisionmaking by the customer for professional services immediately suggests that advertising restrictions arguably protecting patients from misleading or irrelevant advertising call for more than cursory treatment as obviously comparable to classic horizontal agreements to limit output or price competition.The explanation proffered by the Court of Appeals for the likely anticompetitive effect of the CDA's restrictions on discount advertising began with the unexceptionable statements that "price advertising is fundamental to price competition," 128 F. 3d, at 727, and that "[r]estrictions on the ability to advertise prices normally make it more difficult for consumers to find a lower price and for dentists to compete on the basis of price," ibid. (citing Bates v. State Bar of Ariz., 433 U. S. 350, 364 (1977); Morales v. Trans World Airlines, Inc., 504 U. S. 374, 388 (1992)). The court then acknowledged that, according to the CDA, the restrictions nonetheless furthered the "legitimate, indeed procompetitive, goal of preventing false and misleading price advertising." 128 F. 3d, at 728. The Court of Appeals might, at this juncture, have recognized that the restrictions at issue here are very far from a total ban on price or discount advertising, and might have considered the possibility that the particular restrictions on professional advertising could have different effects from those "normally" found in the commercial world, even to the point of promoting competition by reducing the occurrence of unverifiable and misleading across-the-board774discount advertisingY Instead, the Court of Appeals confined itself to the brief assertion that the "CDA's disclosure requirements appear to prohibit across-the-board discounts because it is simply infeasible to disclose all of the information that is required," ibid., followed by the observation that "the record provides no evidence that the rule has in fact led to increased disclosure and transparency of dental pricing," ibid.But these observations brush over the professional context and describe no anticompetitive effects. Assuming that the record in fact supports the conclusion that the CDA disclosure rules essentially bar advertisement of across-theboard discounts, it does not obviously follow that such a ban would have a net anticompetitive effect here. Whether advertisements that announced discounts for, say, first-time customers, would be less effective at conveying information relevant to competition if they listed the original and discounted prices for checkups, X-rays, and fillings, than they would be if they simply specified a percentage discount across the board, seems to us a question susceptible to empirical but not a priori analysis. In a suspicious world, the discipline of specific example may well be a necessary condition of plausibility for professional claims that for all practical purposes defy comparison shopping. It is also possible in principle that, even if across-the-board discount advertisements were more effective in drawing customers in the short run, the recurrence of some measure of intentional or accidental misstatement due to the breadth of their claims mightllJU8TICE BREYER claims that "the Court of Appeals did consider the relevant differences." Post, at 790. But the language he cites says nothing more than that per se analysis is inappropriate here and that "some caution" was appropriate where restrictions purported to restrict false advertising, see 128 F. 3d, at 726-727. Caution was of course appropriate, but this statement by the Court of Appeals does not constitute a consideration of the possible differences between these and other advertising restrictions.775leak out over time to make potential patients skeptical of any such across-the-board advertising, so undercutting the method's effectiveness. Cf. Akerlof, 84 Q. J. Econ., at 495 (explaining that "dishonest dealings tend to drive honest dealings out of the market"). It might be, too, that acrossthe-board discount advertisements would continue to attract business indefinitely, but might work precisely because they were misleading customers, and thus just because their effect would be anticompetitive, not procompetitive. Put another way, the CDA's rule appears to reflect the prediction that any costs to competition associated with the elimination of across-the-board advertising will be outweighed by gains to consumer information (and hence competition) created by discount advertising that is exact, accurate, and more easily verifiable (at least by regulators). As a matter of economics this view mayor may not be correct, but it is not implausible, and neither a court nor the Commission may initially dismiss it as presumptively wrong.12In theory, it is true, the Court of Appeals neither ruled out the plausibility of some procompetitive support for the CDA's requirements nor foreclosed the utility of an evidentiary discussion on the point. The court indirectly acknowledged the plausibility of procompetitive justifications for the12JUSTICE BREYER suggests that our analysis is "of limited relevance," post, at 791, because "[t]he basic question is whether this ... theoretically redeeming virtue in fact offsets the restrictions' anticompetitive effects in this case," ibid. He thinks that the Commission and the Court of Appeals "adequately answered that question," ibid., but the absence of any empirical evidence on this point indicates that the question was not answered, merely avoided by implicit burden shifting of the kind accepted by JusTICE BREYER. The point is that before a theoretical claim of anticompetitive effects can justify shifting to a defendant the burden to show empirical evidence of procompetitive effects, as quick-look analysis in effect requires, there must be some indication that the court making the decision has properly identified the theoretical basis for the anticompetitive effects and considered whether the effects actually are anti competitive. Where, as here, the circumstances of the restriction are somewhat complex, assumption alone will not do.776CDA's position when it stated that "the record provides no evidence that the rule has in fact led to increased disclosure and transparency of dental pricing," 128 F. 3d, at 728. But because petitioner alone would have had the incentive to introduce such evidence, the statement sounds as though the Court of Appeals may have thought it was justified without further analysis to shift a burden to the CDA to adduce hard evidence of the procompetitive nature of its policy; the court's adversion to empirical evidence at the moment of this implicit burden shifting underscores the leniency of its enquiry into evidence of the restrictions' anticompetitive effects.The Court of Appeals was comparably tolerant in accepting the sufficiency of abbreviated rule-of-reason analysis as to the nonprice advertising restrictions. The court began with the argument that "[t]hese restrictions are in effect a form of output limitation, as they restrict the supply of information about individual dentists' services." Ibid. (citing P. Areeda & H. Hovenkamp, Antitrust Law ~ 1505, pp. 693-694 (1997 Supp.)). Although this sentence does indeed appear as cited, it is puzzling, given that the relevant output for antitrust purposes here is presumably not information or advertising, but dental services themselves. The question is not whether the universe of possible advertisements has been limited (as assuredly it has), but whether the limitation on advertisements obviously tends to limit the total delivery of dental services. The court came closest to addressing this latter question when it went on to assert that limiting advertisements regarding quality and safety "prevents dentists from fully describing the package of services they offer," 128 F. 3d, at 728, adding that "[t]he restrictions may also affect output more directly, as quality and comfort advertising may induce some customers to obtain nonemergency care when they might not otherwise do so," ibid. This suggestion about output is also puzzling. If quality advertising actually induces some patients to obtain more care777than they would in its absence, then restricting such advertising would reduce the demand for dental services, not the supply; and it is of course the producers' supply of a good in relation to demand that is normally relevant in determining whether a producer-imposed output limitation has the anticompetitive effect of artificially raising prices,13 see General Leaseways, Inc. v. National Truck Leasing Assn., 744 F.2d 588, 594-595 (CA7 1984) ("An agreement on output also equates to a price-fixing agreement. If firms raise price, the market's demand for their product will fall, so the amount supplied will fall too-in other words, output will be restricted. If instead the firms restrict output directly, price will as mentioned rise in order to limit demand to the reduced supply. Thus, with exceptions not relevant here, raising price, reducing output, and dividing markets have the same anticompetitive effects").Although the Court of Appeals acknowledged the CDA's view that "claims about quality are inherently unverifiable and therefore misleading," 128 F. 3d, at 728, it responded that this concern "does not justify banning all quality claims without regard to whether they are, in fact, false or misleading," ibid. As a result, the court said, "the restriction is a sufficiently naked restraint on output to justify quick look analysis." Ibid. The court assumed, in these words, that some dental quality claims may escape justifiable censure, because they are both verifiable and true. But its implicit13 JUSTICE BREYER wonders if we "mea[n] this statement as an argument against the anti competitive tendencies that flow from an agreement not to advertise service quality." Post, at 791. But as the preceding sentence shows, we intend simply to question the logic of the Court of Appeals's suggestion that the restrictions are anticompetitive because they somehow "affect output," 128 F. 3d, at 728, presumably with the intent to raise prices by limiting supply while demand remains constant. We do not mean to deny that an agreement not to advertise service quality might have anticompetitive effects. We merely mean that, absent further analysis of the kind JUSTICE BREYER undertakes, it is not possible to conclude that the net effect of this particular restriction is anti competitive.778assumption fails to explain why it gave no weight to the countervailing, and at least equally plausible, suggestion that restricting difficult-to-verify claims about quality or patient comfort would have a procompetitive effect by preventing misleading or false claims that distort the market. It is, indeed, entirely possible to understand the CDA's restrictions on unverifiable quality and comfort advertising as nothing more than a procompetitive ban on puffery, cf. Bates, 433 U. S., at 366 (claims relating to the quality of legal services "probably are not susceptible of precise measurement or verification and, under some circumstances, might well be deceptive or misleading to the public, or even false"); id., at 383-384 ("[A]dvertising claims as to the quality of services ... are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction"), notwithstanding JUSTICE BREYER'S citation (to a Commission discussion that never faces the issue of the unverifiability of professional quality claims, raised in Bates), post, at 785.14The point is not that the CDA's restrictions necessarily have the procompetitive effect claimed by the CDA; it is possible that banning quality claims might have no effect at all on competitiveness if, for example, many dentists made very much the same sort of claims. And it is also of course possible that the restrictions might in the final analysis be anticompetitive. The point, rather, is that the plausibility of competing claims about the effects of the professional advertising restrictions rules out the indulgently abbreviated review to which the Commission's order was treated. The obvious anticompetitive effect that triggers abbreviated analysis has not been shown.14 The Commission said only that" 'mere puffing' deceives no one and has never been subject to regulation." 121 F. T. C., at 318. The question here, of course, is not whether puffery may be subject to governmental regulation, but whether a professional organization may ban it.779In light of our focus on the adequacy of the Court of Appeals's analysis, JUSTICE BREYER'S thorough-going, de novo antitrust analysis contains much to impress on its own merits but little to demonstrate the sufficiency of the Court of Appeals's review. The obligation to give a more deliberate look than a quick one does not arise at the door of this Court and should not be satisfied here in the first instance. Had the Court of Appeals engaged in a painstaking discussion in a league with JUSTICE BREYER'S (compare his 14 pages with the Ninth Circuit's 8), and had it confronted the comparability of these restrictions to bars on clearly verifiable advertising, its reasoning might have sufficed to justify its conclusion. Certainly JUSTICE BREYER'S treatment of the antitrust issues here is no "quick look." Lingering is more like it, and indeed JUSTICE BREYER, not surprisingly, stops short of endorsing the Court of Appeals's discussion as adequate to the task at hand.Saying here that the Court of Appeals's conclusion at least required a more extended examination of the possible factual underpinnings than it received is not, of course, necessarily to call for the fullest market analysis. Although we have said that a challenge to a "naked restraint on price and output" need not be supported by "a detailed market analysis" in order to "requir[e] some competitive justification," National Collegiate Athletic Assn., 468 U. S., at 110, it does not follow that every case attacking a less obviously anticompetitive restraint (like this one) is a candidate for plenary market examination. The truth is that our categories of analysis of anticompetitive effect are less fixed than terms like "per se," "quick look," and "rule of reason" tend to make them appear. We have recognized, for example, that "there is often no bright line separating per se from Rule of Reason analysis," since "considerable inquiry into market conditions" may be required before the application of any so-called "per se" condemnation is justified. Id., at 104, n. 26. "[W]hether the ultimate finding is the product of a presumption or actual780market analysis, the essential inquiry remains the samewhether or not the challenged restraint enhances competition." Id., at 104. Indeed, the scholar who enriched antitrust law with the metaphor of "the twinkling of an eye" for the most condensed rule-of-reason analysis himself cautioned against the risk of misleading even in speaking of a "spectrum" of adequate reasonableness analysis for passing upon antitrust claims: "There is always something of a sliding scale in appraising reasonableness, but the sliding scale formula deceptively suggests greater precision than we can hope for .... Nevertheless, the quality of proof required should vary with the circumstances." P. Areeda, Antitrust Law ~ 1507, p. 402 (1986).15 At the same time, Professor Areeda also emphasized the necessity, particularly great in the quasi-common law realm of antitrust, that courts explain the logic of their conclusions. "By exposing their reasoning, judges ... are subjected to others' critical analyses, which in turn can lead to better understanding for the future." Id., ~ 1500, at 364. As the circumstances here demonstrate, there is generally no categorical line to be drawn between15 Other commentators have expressed similar views. See, e. g., Kolasky, Counterpoint: The Department of Justice's "Stepwise" Approach Imposes Too Heavy a Burden on Parties to Horizontal Agreements, Antitrust 41, 43 (spring 1998) ("[I]n applying the rule of reason, the courts, as with any balancing test, use a sliding scale to determine how much proof to require"); Piraino, Making Sense of the Rule of Reason: A New Standard for Section 1 of the Sherman Act, 47 Vand. L. Rev. 1753, 1771 (1994) ("[C]ourts will have to undertake varying degrees of inquiry depending upon the type of restraint at issue. The legality of certain restraints will be easy to determine because their competitive effects are obvious. Other restrictions will require a more detailed analysis because their competitive impact is more ambiguous"). But see Klein, A "Stepwise" Approach for Analyzing Horizontal Agreements Will Provide a Much Needed Structure for Antitrust Review, Antitrust 41, 42 (spring 1990) (examination of procompetitive justifications "is by no means a full scrutiny of the proffered efficiency justification. It is, rather, a hard look at the justification to determine if it meets the defendant's burden of coming forward with-but not establishing-a valid efficiency justification").781restraints that give rise to an intuitively obvious inference of anticompetitive effect and those that call for more detailed treatment. What is required, rather, is an enquiry meet for the case, looking to the circumstances, details, and logic of a restraint. The object is to see whether the experience of the market has been so clear, or necessarily will be, that a confident conclusion about the principal tendency of a restriction will follow from a quick (or at least quicker) look, in place of a more sedulous one. And of course what we see may vary over time, if rule-of-reason analyses in case after case reach identical conclusions. For now, at least, a less quick look was required for the initial assessment of the tendency of these professional advertising restrictions. Because the Court of Appeals did not scrutinize the assumption of relative anticompetitive tendencies, we vacate the judgment and remand the case for a fuller consideration of the issue.It is so ordered

OCTOBER TERM, 1998SyllabusCALIFORNIA DENTAL ASSOCIATION v. FEDERAL TRADE COMMISSIONCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 97-1625. Argued January 13, 1999-Decided May 24,1999Petitioner California Dental Association (CDA), a nonprofit association of local dental societies to which about three-quarters of the State's dentists belong, provides desirable insurance and preferential financing arrangements for its members, and engages in lobbying, litigation, marketing, and public relations for members' benefit. Members agree to abide by the CDA's Code of Ethics, which, inter alia, prohibits false or misleading advertising. The CDA has issued interpretive advisory opinions and guidelines relating to advertising. Respondent Federal Trade Commission brought a complaint, alleging that the CDA violated § 5 of the Federal Trade Commission Act (Act), 15 U. S. C. § 45, in applying its guidelines so as to restrict two types of truthful, nondeceptive advertising: price advertising, particularly discounted fees, and advertising relating to the quality of dental services. An Administrative Law Judge (ALJ) held the Commission to have jurisdiction over the CDA and found a § 5 violation. As relevant here, the Commission held that the advertising restrictions violated the Act under an abbreviated rule-of-reason analysis. In affirming, the Ninth Circuit sustained the Commission's jurisdiction and concluded that an abbreviated or "quick look" rule-of- reason analysis was proper in this case.Held:1. The Commission's jurisdiction extends to an association that, like the CDA, provides substantial economic benefit to its for-profit members. The Act gives the Commission authority over a "corporatio[n]," 15 U. S. C. § 45(a)(2), "organized to carryon business for its own profit or that of its members," § 44. The Commission's claim that the Act gives it jurisdiction over nonprofit associations whose activities provide substantial economic benefits to their for-profit members is clearly the better reading of the Act, which does not require that a supporting organization must devote itself entirely to its members' profits or say anything about how much of the entity's activities must go to raising the members' bottom lines. There is thus no apparent reason to let the Act's application turn on meeting some threshold percentage of activity for this purpose or even a softer formulation calling for a substantial part of the entity's total activities to be aimed at its members' pecuniary757benefit. The Act does not cover all membership organizations of profit-making corporations without more. However, the economic benefits conferred upon CDA's profit-seeking professionals plainly fall within the object of enhancing its members' "profit," which is the Act's jurisdictional touchstone. The Act's logic and purpose comport with this result, and its legislative history is not inconsistent with this interpretation. Pp.765-769.2. Where any anti competitive effects of given restraints are far from intuitively obvious, the rule of reason demands a more thorough enquiry into the consequences of those restraints than the abbreviated analysis the Ninth Circuit performed in this case. Pp.769-781.(a) An abbreviated or "quick-look" analysis is appropriate when an observer with even a rudimentary understanding of economics could conclude that the arrangements in question have an anticompetitive effect on customers and markets. See, e. g., National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85. This case fails to present a situation in which the likelihood of anticompetitive effects is comparably obvious, for the CDA's advertising restrictions might plausibly be thought to have a net procompetitive effect or possibly no effect at all on competition. Pp. 769-771.(b) The discount and nondiscount advertising restrictions are, on their face, designed to avoid false or deceptive advertising in a market characterized by striking disparities between the information available to the professional and the patient. The existence of significant challenges to informed decisionmaking by the customer for professional services suggests that advertising restrictions arguably protecting patients from misleading or irrelevant advertising call for more than cursory treatment. In applying cursory review, the Ninth Circuit brushed over the professional context and described no anticompetitive effects from the discount advertising bar. The CDA's price advertising rule appears to reflect the prediction that any costs to competition associated with eliminating across-the-board advertising will be outweighed by gains to consumer information created by discount advertising that is exact, accurate, and more easily verifiable. This view mayor may not be correct, but it is not implausible; and neither a court nor the Commission may initially dismiss it as presumptively wrong. The CDA's plausible explanation for its nonprice advertising restrictions, namely that restricting unverifiable quality claims would have a procompetitive effect by preventing misleading or false claims that distort the market, likewise rules out the Ninth Circuit's use of abbreviated rule-of-reason analysis for those restrictions. The obvious anti competitive effect that triggers such analysis has not been shown. Pp. 771-778.758Full Text of Opinion

1955_134

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question presented is whether the proceeds of the sale by the United States Government of standing timber on allotted lands on the Quinaielt Indian Reservation may be made subject to capital gains tax, consistently with applicable treaty and statutory provisions and the Government's role as respondents' trustee and guardian.When white men first came to the Olympic Peninsula, in what is now the State of Washington, they found the Quinaielt Tribe of Indians and their neighboring allied tribes occupying a tract of country lying between the Page 351 U. S. 3 Coast Range and the Pacific Ocean. This vast tract, with the exception of a small portion reserved for their exclusive use, was ceded by the Quinaielts and their neighbors to the United States in exchange for protection and tutelage by the treaty of July 1, 1855, and January 25, 1856, 12 Stat. 971. According to this treaty, the Quinaielts were to have exclusive use of their reservation "and no white man shall be permitted to reside thereon without permission of the tribe. . . ." Article II. Years later, Congress passed the General Allotment Act of 1887. [Footnote 1] Thereunder, Indians were to be allotted lands on their reservations not to exceed 160 acres of grazing land or 80 acres of agricultural land, [Footnote 2] and, 25 years after allotment, the allottees were to receive the lands discharged of the trust under which the United States had theretofore held them, and to obtain a patent "in fee, discharged of said trust and free of all charge or incumbrance whatsoever," [Footnote 3] though the President might extend the period. [Footnote 4]Respondents, husband and wife, were born on the reservation, and are described by the Government as full-blood, noncompetent Quinaielt Indians. They have lived on the reservation all their lives with the exception of the time served by respondent husband in the Armed Forces of the United States during World War II.Pursuant to the treaty and under the General Allotment Act of 1887, respondent husband was allotted from the treaty-guaranteed reservation 93.25 acres, and received Page 351 U. S. 4 a trust patent [Footnote 5] therefor dated October 1, 1907. [Footnote 6] During the tax year here in question, the fee title to this land was still held by the United States in trust for him, and was not subject to alienation or encumbrance by him except with the consent of the United States Government, which consent had never been given. The land was forest land, covered by coniferous trees from one hundred years to several hundred years old. It was not adaptable to agricultural purposes, and was of little value after the timber was cut.In the year 1943, the Bureau of Indian Affairs of the United States Department of the Interior entered into a contract of sale for the standing timber on respondent's allotted land for the total price of $15,080.80. The Government received the sum of $8,418.28 on behalf of respondent in that year. [Footnote 7] Page 351 U. S. 5Upon demand of petitioner, Collector of Internal Revenue for the District of Washington, respondents filed a joint income tax return on October 10, 1947, for the tax year 1943, reporting long-term capital gain from the sale of the timber in that year. Simultaneously, they paid the taxes shown due. Thereafter, they filed a timely claim for refund of the taxes paid, and contended that the proceeds from the sale of timber from the allotted land were not subject to federal income taxation, because such taxation would be in violation of the provisions of the Quinaielt Treaty, the trust patent, and the General Allotment Act. The claim for refund was denied, and this action was instituted. The District Court found that the tax had been unlawfully collected, and ordered the refund. 110 F. Supp. 924. The Court of Appeals, agreeing with the District Court but recognizing a conflict between this case and the decision of the Tenth Circuit in the case of Jones v. Taunah, 186 F.2d 445, affirmed. 220 F.2d 349. Because of the apparent conflict, we granted certiorari. 350 U.S. 816.The Government urges us to view this case as an ordinary tax case, without regard to the treaty, relevant statutes, congressional policy concerning Indians, or the Page 351 U. S. 6 guardian-ward relationship between the United States and these particular Indians. It argues:"As citizens of the United States, they are taxable under the broad provisions of Sections 11 and 22(a) of the Internal Revenue Code of 1939, which imposes a tax on the net income of every individual, derived from any source whatever. There is no exemption from tax in the Quinaielt Treaty, the General Allotment Act, the taxing statute, or in any other legislation dealing with taxpayers' affairs. . . .""Even if it be assumed that the United States would be prohibited from imposing a direct tax on the allotted land held in trust for the taxpayers, there would nevertheless be no prohibition against a federal tax on the income derived from the land, since a tax on such income is not the same as the tax on the source of the income, the land. [Footnote 8]"We agree with the Government that Indians are citizens, and that, in ordinary affairs of life, not governed by treaties or remedial legislation, they are subject to the payment of income taxes as are other citizens. We also agree that, to be valid, exemptions to tax laws should be clearly expressed. But we cannot agree that taxability of respondents in these circumstances is unaffected by the treaty, the trust patent, or the Allotment Act.The courts below held that imposition of the tax here in question is inconsistent with the Government's promise to transfer the fee "free of all charge or incumbrance whatsoever." Although this statutory provision is not expressly couched in terms of nontaxability, this Court has said that"Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards Page 351 U. S. 7 of the nation, dependent upon its protection and good faith. Hence, in the words of Chief Justice Marshall:""The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import as connected with the tenor of the treaty, they should be considered as used only in the latter sense.""Worcester v. State of Georgia, 6 Pet. 515, 31 U. S. 582"Carpenter v. Shaw, 280 U. S. 363, 280 U. S. 367.Thus, the general words "charge or incumbrance" might well be sufficient to include taxation. But Congress, in an amendment to the General Allotment Act, gave additional force to respondents' position. Section 6 of that Act was amended to include a proviso --"That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent. . . . [Footnote 9]"The Government argues that this amendment was directed solely at permitting state and local taxation after a transfer in fee, but there is no indication in the legislative history of the amendment that it was to be so limited. [Footnote 10] The fact that this amendment antedated the federal income tax by 10 years also seems irrelevant. The Page 351 U. S. 8 literal language of the proviso evinces a congressional intent to subject an Indian allotment to all taxes only after a patent in fee is issued to the allottee. This, in turn, implies that, until such time as the patent is issued, the allotment shall be free from all taxes, both those in being and those which might in the future be enacted. [Footnote 11]The first opinion of an Attorney General touching on this question seemed to construe the language of the amendment to Section 6 as exempting from the income tax income derived from restricted allotments. [Footnote 12] And even without such a clear statutory basis for exemption, a later Attorney General advised that he was --"[U]nable, by implication, to impute to Congress under the broad language of our Internal Revenue Acts an intent to impose a tax for the benefit of the Federal Government on income derived from the restricted property of these wards of the nation -- property the management and control of which rests largely in the hands of officers of the Government charged by law with the responsibility and duty of protecting the interests and welfare of these dependent people. In other words, it is not lightly to be assumed that Congress intended to tax the ward for the benefit of the guardian. [Footnote 13]"Two of these opinions were published as Treasury Decisions. [Footnote 14] On the basis of these opinions and decisions, and a series of district and circuit court decisions, it was said by Felix S. Cohen, an acknowledged expert in Page 351 U. S. 9 Indian law, that "[i]t is clear that the exemption accorded tribal and restricted Indian lands extends to the income derived directly therefrom." [Footnote 15] These relatively contemporaneous official and unofficial writings are entitled to consideration. The Government makes much of a subsequent Attorney General's opinion, [Footnote 16] which expressly overruled an earlier opinion [Footnote 17] on the authority of Superintendent of Five Civilized Tribes v. Commissioner. 295 U. S. 418.That case is distinguishable from the case at hand. It involved what the Court characterized as "income derived from investment of surplus income from land," [Footnote 18] or income on income, which Cohen termed "reinvestment income." The purpose of the allotment system was to protect the Indians' interest, and "to prepare the Indians to take their place as independent, qualified members of the modern body politic." Board of Commissioners v. Seber, 318 U. S. 705, 318 U. S. 715. To this end, it is necessary to preserve the trust and income derived directly therefrom, but it is not necessary to exempt reinvestment income from tax burdens. It is noteworthy that the Superintendent case did not involve an attempt to tax the land "surplus." [Footnote 19] Page 351 U. S. 10The wisdom of the congressional exemption from tax embodied in Section 6 of the General Allotment Act is manifested by the facts of the instant case. Respondent's timber constitutes the major value of his allotted land. The Government determines the conditions under which the cutting is made. [Footnote 20] Once logged off, the land is of little value. [Footnote 21] The land no longer serves the purpose for which it was by treaty set aside to his ancestors, and for which it was allotted to him. It can no longer be adequate to his needs and serve the purpose of bringing him finally to a state of competency and independence. Unless the proceeds of the timber sale are preserved for respondent, he cannot go forward when declared competent with the necessary chance of economic survival in competition with others. This chance is guaranteed by the tax exemption afforded by the General Allotment Act and the solemn undertaking in the patent. It is unreasonable to infer that, in enacting the income tax law, Congress intended to limit or undermine the Government's undertaking. To tax respondent under these circumstances would, in the words of the court below, be, "at the least, a sorry breach of faith with these Indians." [Footnote 22]The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtSquire v. Capoeman, 351 U.S. 1 (1956)Squire v. CapoemanNo. 134Argued January 19, 1956Decided April 23, 1956351 U.S. 1SyllabusIncome from the sale by the Government of standing timber on allotted forest land on the Quinaielt Indian Reservation held in trust by the Government for a noncompetent Quinaielt Indian may not be subjected to a capital gains tax consistently with applicable treaty and statutory provisions and the Government's role as trustee and guardian for such Indian. Pp. 351 U. S. 2-10.(a) Though Indians are citizens, and are subject to income taxes, it cannot be said that, in the circumstances of this case, the taxability of this Indian is unaffected by the treaty with the Quinaielt Indians, the General Allotment Act, or the trust patent under which this land is held in trust for the Indian. Pp. 351 U. S. 6.(b) The provision of § 5 of the General Allotment Act of 1887 that lands on Indian reservations allotted to individual Indians and held in trust for them by the Government shall ultimately be conveyed to them in fee simple discharged of the trust and "free of all charge or incumbrance whatsoever" might well be construed as exempting such lands from taxation. Pp. 351 U. S. 6-7.(c) The provision of § 6 of the General Allotment Act, as amended, that, when a patent in fee simple has been issued to an Indian allottee, "all restrictions as to . . . taxation of said land shall be removed" implies that, until such time as the patent is issued, the allotment shall be free from all taxes. Pp. 351 U. S. 7-9. Page 351 U. S. 2(d) Superintendent of Five Civilized Tribes v. Commissioner, 295 U. S. 418, distinguished. P. 351 U. S. 9.(e) Since the purpose of the General Allotment Act is to enable Indian allottees to attain a state of competency and independence, and since that purpose would be defeated by imposition of the tax here proposed, it is unreasonable to infer that, in enacting the income tax law, Congress intended to destroy the tax exemption afforded by the General Allotment Act. P. 351 U. S. 10.220 F.2d 349 affirmed.

1975_75-5027

MR. JUSTICE BRENNAN delivered the opinion of the Court.This case presents the question reserved in McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 178 n. 18 (1973): whether the grant of civil jurisdiction to the States conferred by § 4 of Pub.L. 280, 67 Stat. 589, 28 U.S.C. § 1360, is a congressional grant of power to the States to tax reservation Indians except insofar as taxation is expressly excluded by the terms of the statute.Petitioner Russell Bryan, an enrolled member of the Minnesota Chippewa Tribe, [Footnote 1] resides in a mobile home on land held in trust by the United States for the Chippewa Tribe on the Leech Lake Reservation in Minnesota. In June, 1972, petitioner received notices from the auditor of respondent Itasca County, Minn., that he had been assessed personal property tax liability on the mobile home totaling § 147.95. Thereafter, in September, 1972, petitioner brought this suit in the Minnesota District Court seeking a declaratory judgment that the State and county were without authority to levy such a tax on personal property of a reservation Indian on the reservation, and that imposition of such a tax was contrary to federal law. The Minnesota District Court rejected the contention and entered judgment for respondent county. The Minnesota Supreme Court affirmed, 303 Minn. 395, 228 N.W.2d 249 (1975). We granted certiorari, 423 U.S. 923 (1975), and now reverse.IPrinciples defining the power of States to tax reservation Page 426 U. S. 376 Indians and their property and activities on federally established reservations were clarified in McClanahan v. Arizona State Tax Comm'n, supra. As summarized in its companion case, Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973), McClanahan concluded:"[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and McClanahan . . . lays to rest any doubt in this respect by holding that such taxation is not permissible absent Congressional consent."Mescalero Apache Tribe v. Jones, supra at 411 U. S. 148. [Footnote 2] Page 426 U. S. 377 McClanahan held that Arizona was disabled, in the absence of congressional consent, from imposing a state income tax on the income of a reservation Indian earned solely on the reservation. On the authority of McClanahan, Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), held this Term that, in the absence of congressional consent, the State was disabled from imposing a personal property tax on motor vehicles owned by tribal members living on the reservation, or a vendor license fee applied to a reservation Indian conducting a business for the tribe on reservation land, or a sales tax a applied to on-reservation sales by Indians to Indians.Thus, McClanahan and Moe preclude any authority in respondent county to levy a personal property tax upon petitioner's mobile home in the absence of congressional consent. Our task therefore is to determine whether § 4 of Pub.L. 280, 28 U.S.C. § 1360, constitutes such consent.Section 4(a), 28 U.S.C. § 1360(a), provides:"Each of the States . . . listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed . . . to the same extent that such State . . . has jurisdiction over other civil causes of action, and those civil laws of such State . . . that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State . . . : "Page 426 U. S. 378"* * * *" "Minnesota . . . All Indian country within the State, except the Red Lake Reservation."The statute does not, in terms, provide that the tax laws of a State are among "civil laws . . . of general application to private persons or private property." The Minnesota Supreme Court concluded, however, that they were, finding in § 4(b) of the statute a negative implication of inclusion in § 4(a) of a general power of tax. Section 4(b), 28 U.S.C. § 1360(b), provides:"Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein."The Minnesota Supreme Court reasoned that,"unless paragraph (a) is interpreted as a general grant of the power to tax, then the exceptions contained in paragraph (b) are limitations on a nonexistent power."303 Minn. at 402, 228 N.W.2d at 253. [Footnote 3] Therefore, the state court held: "Public Law 280 is a clear grant of the power Page 426 U. S. 379 to tax." Id. at 406, 228 N.W.2d at 256. [Footnote 4] We disagree. That conclusion is foreclosed by the legislative history of Pub.L. 280 and the application of canons of construction applicable to congressional statutes claimed to terminate Indian immunities.IIThe primary concern of Congress in enacting Pub.L. 280 that emerges from its sparse legislative history was with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement. See Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 U.C.L.A.L.Rev. 535, 541-542 (1975). The House Report states:"These States lack jurisdiction to prosecute Indians for most offenses committed on Indian reservations or other Indian country, with limited exceptions. The applicability of Federal criminal laws in States having Indian reservations is also limited. The United States district courts have a measure of jurisdiction over offenses committed on Indian reservations or other Indian country by or against Indians, but, in cases of offenses committed by Indians against Indians, that jurisdiction is limited to the so-called 10 major crimes: murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny.""As a practical matter, the enforcement of law Page 426 U. S. 380 and order among the Indians in the Indian country has been left largely to the Indian groups themselves. In many States, tribes are not adequately organized to perform that function; consequently, there has been created a hiatus in law enforcement authority that could best be remedied by conferring criminal jurisdiction on States indicating an ability and willingness to accept such responsibility."H.R.Rep. No. 848, 83d Cong., 1st Sess., 6 (1953). [Footnote 5] Thus, provision for state criminal jurisdiction over offenses committed by or against Indians on the reservations was the central focus of Pub. L 280, and is embodied in § 2 of the Act, 18 U.S.C. § 1162. [Footnote 6] Page 426 U. S. 381In marked contrast in the legislative history is the virtual absence of expression of congressional policy or intent respecting § 4's grant of civil jurisdiction to the States. Of special significance for our purposes, however, is the total absence of mention or discussion regarding a congressional intent to confer upon the States an authority to tax Indians or Indian property on reservations. Neither the Committee Reports nor the floor discussion in either House mentions such authority. [Footnote 7] This omission has significance in the application of the canons of construction applicable to statutes affecting Indian immunities, as some mention would normally be expected if such a sweeping change in the status of tribal government and reservation Indians had been contemplated by Congress. [Footnote 8] The only mention of taxation authority is in a colloquy between Mr. Sellery, Chief Counsel of the Bureau of Indian Affairs, and Congressman Young during House committee hearings on Pub.L. 280. That colloquy strongly suggests that Congress did not mean to grant tax authority to the States:"Mr. Young. Does your bill limit the provision Page 426 U. S. 382 for Federal assistance to States in defraying.the increased expenses of the courts in connection with the widening of the jurisdiction that the bill encompasses?""Mr. Sellery. No; it does not.""Mr. Young. Do you think it would be necessary to provide for some payment, inasmuch as the great portion of Indian lands are not subject to taxation?""Mr. Sellery. . . . Generally, the Department's views are that, if we started on the processes of Federal financial assistance or subsidization of law enforcement activities among the Indians, it might turn out to be a rather costly program, and it is a problem which the States should deal with and accept without Federal financial assistance; otherwise, there will be some tendency, the Department believes, for the Indian to be thought of, and perhaps to think of himself, because of the financial assistance which comes from the Federal Government, as still somewhat a member of a race or group which is set apart from other citizens of the State. And it is desired to give him and the other citizens of the State the feeling of a conviction that he is in the same status and has access to the same services, including the courts, as other citizens of the State who are not Indians.""Mr. Young. That would not quite be true, though, would it? Because, for the most part, he does not pay any taxes.""Mr. Sellery. No. There is that difference.""Mr. Young. A rather sizable difference in not paying for the courts or paying for the increased expenses for judicial proceedings.""Mr. Sellery. The Indians, of course, do pay other forms of taxes. I do not know how the courts Page 426 U. S. 383 of Nevada are supported financially, but the Indians do pay the sales tax and other taxes.""Mr. Young. But no income tax or corporation tax or profits tax. You understand a large portion of the land is held in trust, and therefore is not subject to tax.""Mr. Sellery. That is correct.""Mr. Young. S o far as my State is concerned, it would be a large burden on existing costs of judicial procedure. I think it is only right that the Federal Government should make some contribution for that. You seem to differentiate. I think there is a differentiation, too, in that they are not paying taxes.""Mr. Sellery. I will concede your point that they are not paying taxes. The Department has recommended, nevertheless, that no financial assistance be afforded to the States."App. 55-56. [Footnote 9]Piecing together as best we can the sparse legislative history of § 4, subsection (a) seems to have been primarily intended to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes; this is definitely the import of the statutory wording conferring upon a State"jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in . . . Indian country . . . to the same extent that such State . . . has jurisdiction over other civil causes of action."With this as the primary Page 426 U. S. 384 focus of § 4(a), the wording that follows in § 4(a) --"and those civil laws of such State . . . that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State"-- authorizes application by the state courts of their rules of decision to decide such disputes. [Footnote 10] Cf. 28 U.S.C. § 1652. This construction finds support in the consistent and uncontradicted references in the legislative history to "permitting" "State courts to adjudicate civil controversies" arising on Indian reservations, H.R.Rep. No. 848, pp. 5, 6 (emphasis added), and the absence of anything remotely resembling an intention to confer general state civil regulatory control over Indian reservations. [Footnote 11] In Page 426 U. S. 385 short, the consistent and exclusive use of the terms "civil causes of action," "aris[ing] on," "civil laws . . . of general application to private persons or private property," and "adjudicat[ion]" in both the Act and its legislative history virtually compels our conclusion that the primary intent of § 4 was to grant jurisdiction over private civil litigation involving reservation Indians in state court.Furthermore, certain tribal reservations were completely exempted from the provisions of Pub.L. 280 precisely because each had a "tribal law and order organization that functions in a reasonably satisfactory manner." H.R.Rep. No. 848, p. 7. [Footnote 12] Congress plainly Page 426 U. S. 386 meant only to allow state courts to decide criminal and civil matters arising on reservations not so organized. Accordingly, rather than the expansive reading given § 4(a) by the Minnesota Supreme Court, we feel that the construction we give the section is much more consonant with the revealed congressional intent. Moreover, our construction is consistent with our prior references to § 4 as "the extension of state jurisdiction over civil causes of action by or against Indians arising in Indian country." Kennerly v. District Court of Montana, 400 U. S. 423, 400 U. S. 427 (1971). See also id. at 400 U. S. 424 n. 1; id. at 400 U. S. 430-431 (STEWART, J., dissenting); Warren Trading Post v. Arizona Tax Comm'n, 380 U. S. 685, 380 U. S. 687 n. 3 (1965); Menominee Tribe v. United States, 391 U. S. 404, 391 U. S. 416 n. 8 (1968) (STEWART, J., dissenting).Our construction is also more consistent with Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U.S.C. § § 1321-1326. Title IV repeals § 7 of Pub.L. 280, and requires tribal consent as a condition to further state assumptions of the jurisdiction provided in 18 U.S.C. § 1162 and 28 U.S.C. § 1360. Section 402 of Title IV, 25 U.S.C. § 1322, tracks the language of § 4 of Pub.L. 280. Section 406 of Title IV, 25 U.S.C. § 1326, which provides for Indian consent, refers to "State jurisdiction acquired pursuant to this subchapter with respect to criminal offenses or civil causes of action. . . ." It is true, of course, that the primary interpretation of § 4 must have reference to the legislative history of the Congress that enacted it, rather than to the history of Acts of a later Congress. Nevertheless, Title IV of the 1968 Act is intimately related to § 4, as it provides the method for further state assumptions of the jurisdiction conferred by § 4, and we previously have construed the effect of legislation affecting reservation Indians in light of "intervening" legislative enactments. Moe v. Salish & Kootenai Tribes, 425 U.S. at 425 U. S. 472-475. It would be Page 426 U. S. 387 difficult to suppose that Congress, in 1968, intended the meaning of § 4 to vary depending upon the time and method by which particular States acquired jurisdiction. And certainly the legislative history of Title IV makes it difficult to construe § 4 jurisdiction acquired pursuant to Title IV as extending general state civil regulatory authority, including taxing power, to govern Indian reservations. Senator Ervin, who offered and principally sponsored Title IV, see Kennerly v. District Court of Montana, supra at 400 U. S. 429 n. 5, referred to § 1360 civil jurisdiction as follows:"Certain representatives of municipalities have charged that the repeal of [§ 7 of] Public Law 280 would hamper air and water pollution controls and provide a haven for undesirable, unrestricted business establishments within tribal land borders. Not only does this assertion show the lack of faith that certain cities have in the ability and desire of Indian tribes to better themselves and their environment, but, most importantly, it is irrelevant, since Public Law 280 relates primarily to the application of state civil and criminal law in court proceedings, and has no bearing on programs set up by the States to assist economic and environmental development in Indian territory."(Emphasis added.) Hearing before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, No. 90-23, 90th Cong., 2d Sess., 136 (1968).IIIOther considerations also support our construction. Today's congressional policy toward reservation Indians may less clearly than in 1953 favor their assimilation, but Pub.L. 280 was plainly not meant to effect total assimilation. Public L. 280 was only one of many types of assimilationist legislation under active consideration Page 426 U. S. 388 in 1953. H.R.Rep. No. 848, pp. 5; Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 662 (CA9 1975). [Footnote 13] And nothing in its legislative history remotely suggests that Congress meant the Act's extension of civil jurisdiction to the States should result in the undermining or destruction of such tribal governments as did exist and a conversion of the affected tribes into little more than "private, voluntary organizations,'" United States v. Mazurie, 419 U. S. 544, 419 U. S. 557 (1975) -- a possible result if tribal governments and reservation Indians were subordinated to the full panoply of civil regulatory powers, including taxation, of state and local governments. [Footnote 14] The Act itself refutes such an Page 426 U. S. 389 inference: there is notably absent any conferral of state jurisdiction over the tribes themselves, and § 4(c), 28 U.S.C. § 1360(c), providing for the "full force and effect" of any tribal ordinances or customs "heretofore or hereafter adopted by an Indian tribe . . . if not inconsistent with any applicable civil law of the State," contemplates the continuing vitality of tribal government.Moreover, the same Congress that enacted Pub.L. 280 also enacted several termination Acts [Footnote 15] -- legislation which is cogent proof that Congress knew well how to express its intent directly when that intent was to subject reservation Indians to the full sweep of state laws and state taxation. Cf. Board of Comm'rs v. Seber, 318 U. S. 705, 318 U. S. 713 (1943); Goudy v. Meath, 203 U. S. 146, 203 U. S. 149 (1906). These termination enactments provide expressly for subjecting distributed property"and any income derived therefrom by the individual, corporation, or other legal entity . . . to the same taxes, State and Federal, as in the case of non-Indians, 25 U.S.C. Page 426 U. S. 390 §§ 564j, 749, 898, and provide that""all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction."25 U.S.C. §§ 564q, 757, 899; cf. 25 U.S.C. § 726. These contemporaneous termination Acts are in pari materia with Pub.L. 280. Menominee Tribe v. United States, 391 U.S. at 391 U. S. 411. Reading this express language respecting state taxation and application of the full range of state laws to tribal members of these contemporaneous termination Acts, the negative inference is that Congress did not mean in § 4(a) to subject reservation Indians to state taxation. Thus, rather than inferring a negative implication of a grant of general taxing power in § 4(a) from the exclusion of certain taxation in § 4(b), we conclude that construing Pub.L. 280 in pari materia with these Acts shows that, if Congress, in enacting Pub.L. 280, had intended to confer upon the States general civil regulatory powers, including taxation, over reservation Indians, it would have expressly said so.IVAdditionally, we note that § 4(b), excluding"taxation of any real or personal property . . . belonging to any Indian or any Indian tribe . . . that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States,"is not obviously the narrow exclusion of state taxation that the Minnesota Supreme Court read it to be. On its face, the statute is not clear whether the exclusion is applicable only to taxes levied directly on the trust property specifically or whether it also excludes taxation on activities Page 426 U. S. 391 taking place in conjunction with such property and income deriving from its use. And even if read narrowly to apply only to taxation levied against trust property directly, § 4(b) certainly does not expressly authorize all other state taxation of reservation Indians.Moreover, the express prohibition of any "alienation, encumbrance, or taxation" of any trust property can be read as prohibiting state courts, acquiring jurisdiction over civil controversies involving reservation Indians pursuant to § 4, from applying state laws or enforcing judgments in ways that would effectively result in the "alienation, encumbrance, or taxation" of trust property. Indeed, any other reading of this provision of § 4(b) is difficult to square with the identical prohibition contained in § 2(b) of the Act, which applies the same restrictions upon States exercising criminal jurisdiction over reservation Indians. It would simply make no sense to infer from the identical language of § 2(b) a general power in § 2(a) to tax Indians in all other respects, since § 2(a) deals only with criminal jurisdiction.Indeed, § 4(b) in its entirety may be read as simply a reaffirmation of the existing reservation Indian-Federal Government relationship in all respects save the conferral of state court jurisdiction to adjudicate private civil causes of action involving Indians. We agree with the Court of Appeals for the Ninth Circuit that § 4(b) "is entirely consistent with, and in effect is a reaffirmation of, the law as it stood prior to its enactment." Kirkwood v. Arenas, 243 F.2d 863, 865-866 (1957). The absence of more precise language respecting state taxation of reservation Indians is entirely consistent with a general uncertainty in 1953 of the precise limits of state power to tax reservation Indians respecting other than their trust property, and a congressional Page 426 U. S. 392 intent merely to reaffirm the existing law whatever subsequent litigation might determine it to be. [Footnote 16]Finally, in construing this "admittedly ambiguous" statute, Board of Comm'rs v. Seber, 318 U.S. at 318 U. S. 713, we must be guided by that "eminently sound and vital canon," Northern Cheyenne Tribe v. Hollowbreast, 425 U. S. 649, 425 U. S. 655 n. 7 (1976), that"statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians."Alaska Pacific Fisheries v. United States, 248 U. S. 78, 248 U. S. 89 (1918). See Choate v. Trapp, 224 U. S. 665, 224 U. S. 675 (1912); Antoine v. Washington, 420 U. S. 194, 420 U. S. 199-200 (1975). This principle of statutory construction has particular force in the face of claims that ambiguous statutes abolish by implication Indian tax immunities. McClanahan v. Arizona State Tax Comm'n, 411 U.S. at 411 U. S. 174; Squire v. Capoeman, 351 U. S. 1, 351 U. S. 6-7 (1956); Carpenter v. Shaw, 280 U. S. 363, 280 U. S. 366-367 (1930)."This is so because . . . Indians stand in a special relation to the federal government from which the states are excluded unless the Congress has manifested a clear purpose to terminate [a tax] immunity and allow states to treat Indians as part of the general community."Oklahoma Tax Comm'n v. United States, 319 U. S. 598, 319 U. S. 613-614 (1943) (Murphy, J., dissenting). What we recently said of a claim that Page 426 U. S. 393 Congress had terminated an Indian reservation by means of an ambiguous statute is equally applicable here to the respondent's claim that § 4(a) of Pub.L. 280 is a clear grant of power to tax, and hence a termination of traditional Indian immunity from state taxation:"Congress was fully aware of the means by which termination could be effected. But clear termination language was not employed in the . . . Act. This being so, we are not inclined to infer an intent to terminate. . . . A congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history."Mattz v. Arnett, 412 U. S. 481, 412 U. S. 504-505 (1973).The judgment of the Minnesota Supreme Court isReversed

U.S. Supreme CourtBryan v. Itasca County, 426 U.S. 373 (1976)Bryan v. Itasca CountyNo. 75-5027Argued April 20, 1976Decided June 14, 1976426 U.S. 373SyllabusPetitioner, an enrolled Chippewa Indian, brought this suit in state court seeking a declaratory judgment that the State of Minnesota and respondent county lacked authority to impose a personal property tax on his mobile home located on land held in trust for members of his tribe, and that imposition of such a tax contravened federal law. The trial court rejected the contention. The Minnesota Supreme Court affirmed, holding that the grant of civil jurisdiction to the State in § 4(a) of Pub.L. 280 includes taxing authority, and, since § 4(b) does not exempt nontrust property from such authority, the county had power to assess the tax. Section 4(a) gave various States, including Minnesota, with respect to all Indian country within the State except as specifically exempted,"jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed . . . to the same extent that such State . . . has jurisdiction over other civil causes of action, and those civil laws of such State . . . that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State. . . ."Though tax laws are not specifically mentioned, the State Supreme Court concluded that they were included, since the exempting provision, § 4(b), does not exempt nontrust property, but states that"[n]othing in this section shall authorize the . . . taxation of any real or personal property . . . belonging to any Indian or any Indian tribe . . . that is held in trust by the United States. . . ."Held: Public Law 280 did not grant States the authority to impose taxes on reservation Indians. Pp. 426 U. S. 379-393.(a) The central focus of Pub.L. 280, embodied in § 2 of the Act, was to confer on the States criminal jurisdiction with respect to crimes involving Indians, and no mention was made of a congressional intent to authorize the States to tax Indians or Indian property on Indian reservations, a significant omission in light of applying the canons of construction to statutes affecting Indian immunities, where some mention would normally be expected had Congress contemplated sweeping change in the status of reservation Indians. Pp. 426 U. S. 379-383. Page 426 U. S. 374(b) Section 4(a) seems to have been intended primarily to provide a state forum for resolving private legal disputes involving Indians. Pp. 426 U. S. 383-386.(c) When Title IV of the Civil Rights Act of 1968 amended Pub.L. 280 to require tribal consent to any new state jurisdiction, Congress in effect characterized the relevant part of Pub.L. 280 as conferring the power to resolve private civil controversies, and the legislative history of Title IV would make it difficult to construe § 4 jurisdiction acquired pursuant to that Title as extending general state regulatory power, including taxing power, to govern Indian reservations. Pp. 426 U. S. 386-387.(d) Public L. 280 was plainly not meant to effect total assimilation, and nothing in its legislative history suggests otherwise. The same Congress that enacted Pub.L. 280 also enacted several termination Acts, indicating that Congress well knew how directly to express its intent to confer upon the States general civil regulatory powers, including taxation. Pp. 426 U. S. 387-390.(e) Section 4(b), which is "entirely consistent with, and in effect . . . a reaffirmation of, the law as it stood prior to its enactment," Kirkwood v. Arenas, 243 F.2d 863, 866 (CA9), should, as an admittedly ambiguous statute, be construed in favor of the Indians and against abolishing their tax immunities by implication. Pp. 426 U. S. 390-393.303 Minn. 395, 228 N.W.2d 249, reversed.BRENNAN, J., delivered the opinion for a unanimous Court. Page 426 U. S. 375

1972_71-366

MR. JUSTICE MARSHALL delivered the opinion of the Court.On July 13, 1966, the United States filed a civil antitrust suit against Phillips Petroleum Co. (Phillips) and petitioner Tidewater Oil Co. (Tidewater). The complaint alleged that Phillips' acquisition of certain Page 409 U. S. 152 assets and operations of Tidewater violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18. The District Court denied the United States' motion for a temporary restraining order to prevent consummation of the acquisition, [Footnote 1] and its subsequent motion for a preliminary injunction to require either rescission of the acquisition or maintenance by Phillips of the going-concern value of the transferred assets and operations.Petitioner continued as a party to the suit during some five years of pretrial discovery and preparation. [Footnote 2] Then, in April, 1971, following the Government's announcement that it was ready for trial, petitioner moved to be dismissed as a party. [Footnote 3] The District Court denied the motion, but found that it involved"a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from [the] order may materially advance the ultimate termination of this litigation."It therefore certified "its order denying defendant's motion to dismiss for interlocutory appeal under Section 1292(b) of Title 28 of the United States Code." As required by the statute, Tidewater then applied to the Court of Appeals for the Ninth Circuit for leave to prosecute the appeal. That court, however, denied the application, relying solely on its previous Page 409 U. S. 153 decision in United States v. FMC Corp., 321 F.2d 534 (1963). There, an attempt was made to appeal an interlocutory order denying a preliminary injunction in a Government civil antitrust case. Notwithstanding that 28 U.S.C. § 1292(a)(1) provides for an appeal of right to the courts of appeals from an order granting or denying preliminary injunctions, the Ninth Circuit held that it lacked jurisdiction over such an appeal in a Government civil antitrust case because of § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, which provides that,"[i]n every civil action brought in any district court of the United States under any of [the Antitrust] Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court."In this case, then, the Court of Appeals extended its prior ruling to interlocutory orders within § 1292(b). Because this decision raises an important question of federal appellate jurisdiction, and because a conflict among the circuits subsequently developed on this question, [Footnote 4] we granted certiorari. [Footnote 5] For the reasons that follow, we affirm the decision of the Court of Appeals. Page 409 U. S. 154ITo determine the relevance of 28 U.S.C. § 1292(b) for Government civil antitrust cases, it is necessary first to consider the original purpose of § 2 of the Expediting Act and the over half-century of experience with that section in the context of interlocutory appeals provisions that preceded the enactment of § 1292(b) in 1958. [Footnote 6]In an effort to "expedite [certain] litigation of great and general importance," 36 Cong.Rec. 1679 (remarks of Sen. Fairbanks), [Footnote 7] Congress enacted § 2 of the Expediting Act in 1903 [Footnote 8] to withdraw all intermediate appellate jurisdiction in Government civil antitrust Page 409 U. S. 155 cases. At the time of the passage of the Expediting Act, the then recently established circuit courts of appeals [Footnote 9] had jurisdiction under the Evarts Act over an appeal not only from a "final decision," [Footnote 10] but also from "an interlocutory order or decree" granting or continuing an injunction or appointing a receiver "in a cause in which an appeal from a final decree may be taken . . . to the circuit court of appeals." [Footnote 11] Hence, by lodging exclusive appellate jurisdiction over the "final judgment of the district court" in this Court, the Expediting Act necessarily eliminated court of appeals jurisdiction over appeals from interlocutory, as well as final, decrees in Government civil antitrust cases.Congress thus initially determined to speed appellate review by channeling appeals in Expediting Act cases directly to this Court, and to avoid the delay inherent in piecemeal appeal by conditioning appeal upon the presence of a "final judgment." [Footnote 12] But mere speed in Page 409 U. S. 156 the disposition of Government civil antitrust cases was not Congress' only concern; that result might have been achieved simply by establishing procedures for the expeditious handling of such cases in the courts of appeals. Congress was also intent upon facilitating review by this Court "of a class of antitrust cases deemed particularly important." [Footnote 13] Because of the importance of uniform interpretation of the antitrust law, [Footnote 14] which was still in its infancy in 1903, it is understandable that Congress chose to establish this special appellate procedure for Government civil antitrust cases, which were thought generally to involve issues of wide importance. [Footnote 15] During the 25 years following the enactment of the Expediting Act, Congress amended the Evarts Act provision governing interlocutory appeals to the courts of Page 409 U. S. 157 appeals on four separate occasions -- in 1906, [Footnote 16] 1911, [Footnote 17] 1925, [Footnote 18] and 1928. [Footnote 19] It can be argued that, on its face, the very first of these amendments once again made interlocutory appeals available to the courts of appeals in Government civil antitrust cases, and that the language of each successive amendment, where relevant, perpetuated that state of affairs. [Footnote 20] But, while the clear meaning of statutory language is not to be ignored, "words are inexact tools, at best," Harrison v. Northern Trust Co., 317 U. S. 476, 317 U. S. 479 (1943), and hence it is essential that we place the words of a statute in their proper context by resort to the legislative history. Nowhere is this better illustrated than in this case. For we find it inconceivable Page 409 U. S. 158 that Congress, having purposefully withdrawn the jurisdiction of the courts of appeals in certain antitrust cases in 1903, would reestablish it in the same case -- but only for interlocutory orders -- just three years later in 1906, without making any reference to that purpose. Yet no mention of either the Expediting Act or Government civil antitrust cases is to be found in the legislative history of the 1906 amendment to the interlocutory appeals provision [Footnote 21] -- or, for that matter, in that of the successive amendments insofar as they are relevant; [Footnote 22] rather, for each amendment, some purpose wholly unrelated to Expediting Act cases is apparent from the relevant legislative materials. [Footnote 23] In light of this, we find Page 409 U. S. 159 it impossible to ascribe to Congress an intent to impair the original exclusivity of this Court's jurisdiction under § 2 through any of these amendments to the interlocutory appeals provision. Page 409 U. S. 160This clearly was the view of the seven members of the unanimous Court in United States v. California Cooperative Canneries, 279 U. S. 553 (1929). There, in rejecting the argument that an appeal lay to the court of appeals from an order denying a motion to intervene in a Government civil antitrust case, the Court stated: [Footnote 24]"[The Evarts Act] provisions governing appeals in general were amended by the Expediting Act so that, in suits in equity under the Anti-Trust Act 'in which the United States is complainant,' the appeal should be direct to this Court from the final decree in the trial court. Thus, Congress limited the right of review to an appeal from the decree which disposed of all matters . . . ; and it precluded the possibility of an appeal to either [this Court or the court of appeals] from an interlocutor decree."Id. at 279 U. S. 558 (emphasis added). And a decade and a half later, in Allen Calculators v. National Cash Register Co., 322 U. S. 137, 322 U. S. 142(1944), the Court reiterated"that jurisdiction to review District Court decrees was not vested in the Circuit Courts of Appeals, but solely in this court, and [the Expediting Act] limited the right of appeal to final decrees."It is true that interlocutory orders in Government civil antitrust cases were subsequently held reviewable by way of extraordinary writs under the All Writs Act, 28 U.S.C. § 1651(a), but application for the extraordinary writ must be made to this Court where "sole appellate jurisdiction lies" in such cases. United States Alkali Export Assn. v. United States, 325 U. S. 196, 325 U. S. 201-203 (1945); Page 409 U. S. 161 De Beers Consolidated Mines v. United States, 325 U. S. 212, 325 U. S. 217 (1945). [Footnote 25]The wording of the interlocutory appeals provision was again altered in the 1948 revision of the Judicial Code. [Footnote 26] The result -- after certain subsequent minor changes not here relevant [Footnote 27] -- was the present 28 U.S.C. § 1292(a)(1), which allows ''[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing Page 409 U. S. 162 or dissolving injunctions. . . [Footnote 28] to be appealed to the courts of appeals "except where a direct review may be had in the Supreme Court." (Emphasis added.) This final clause is susceptible of two plausible constructions that yield opposite results in cases subject to the Expediting Act. A direct review of interlocutory orders in Government civil antitrust cases clearly may be had in this Court, thus barring resort to § 1292(a)(1) -- or so it would seem. But direct review may not be had when the interlocutory order is entered, since there is no "final judgment," the predicate of an appeal under the Expediting Act. Therefore, were the final clause construed as directed only at the present availability of review in this Court, it would not, on its face, bar an interlocutory appeal. However, the function of the Revisers of the 1948 Code was generally limited to that of consolidation and codification. [Footnote 29] Consequently, a well established principle governing the interpretation of provisions altered in the 1948 revision is that "no change is to be presumed unless clearly expressed." Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 353 U. S. 228 (1957). We find no such clear expression here. To the contrary, the Revisers' Notes fail to reveal any intention to expand the scope of the preexisting jurisdiction of the courts of appeals over interlocutory appeals; the new § 1292 is described merely as a consolidation of a number of previously separate code provisions -- including the general Page 409 U. S. 163 interlocutory appeals provision -- "with necessary changes in phraseology to effect the consolidation." [Footnote 30]In sum, then, our examination of the history and evolution of the present § 1292(a)(1) -- the direct descendant of the original interlocutory appeals provision contained in the Evarts Act -- has convinced us that, at least up to the passage of § 1292(b) in 1958, Congress had not impaired the original exclusivity of this Court's jurisdiction under § 2 of the Expediting Act. As is usually true of questions of statutory construction, the issue is not totally free from doubt. [Footnote 31] Yet, in the last analysis, whatever ambiguity may exist in the lengthy history of the original interlocutory appeals provision relative to the Expediting Act, it results primarily from the absence of any consideration of Government civil antitrust cases in that history, and thus emphasizes the extent to which appellate jurisdiction in such cases has long been viewed as a peculiarly distinct matter. Cf. United States Alkali Export Assn. v. United States, 325 U.S. at 325 U. S. 202-203. Certainly, this conclusion finds substantial support in our prior decisions in which we have consistently interpreted our appellate jurisdiction under § 2 as exclusive. [Footnote 32] Page 409 U. S. 164IIWith this background, the question becomes what effect, if any, the enactment of § 1292(b) in 1958 had upon this Court's theretofore exclusive appellate jurisdiction in Government civil antitrust cases. Section 1292(h) provides in relevant part:"When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. . . ."At the outset, petitioner contends that there is simply no conflict between this provision and § 2 of the Expediting Act. It suggests that "civil action" must be read as an all-inclusive phrase that covers, inter alia, Government civil antitrust cases. At the same time, it points out that § 1292(b) is concerned only with interlocutory orders, while the Expediting Act deals only with final judgments. Thus, petitioner concludes that the enactment of § 1292(b) made discretionary interlocutory appeals available where none had previously existed, and that the two statutes are in complete harmony with one another.Such a facile argument could also be made to support the contention that § 1292(a)(1) can be invoked in Expediting Act cases -- were it not for the fact that, as we have already seen, § 2 does not merely apply solely to a "final judgment," but also limits the right of appeal to a Page 409 U. S. 165 "final judgment." Likewise, we can hardly accept petitioner's suggestion that, when Congress enacted § 1292(b), it wrote upon a clean slate insofar as appeals from interlocutory orders in Expediting Act cases are concerned. Nor do we find in § 1292(b) the "sharp break with the traditional policy" of limited availability of interlocutory appeal so apparent to the dissent. The new provision hardly created a general right of interlocutory appeal; rather, it only extended the availability of such appeals to a limited group of orders -- not previously covered by § 1292(a) -- that involve "a controlling question of law" the immediate appeal of which "may materially advance the ultimate termination of the litigation." [Footnote 33] In short, the consistent construction that had been accorded § 2 prior to the enactment of § 1292(b) [Footnote 34] cannot simply be ignored in determining the impact of that section on Government civil antitrust cases, cf. Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n, 393 U. S. 186, 393 U. S. 191-194 (1968). Acceptance of petitioner's contention would require us to conclude that § 1292(b) was intended to revise the policies underlying the Expediting Act for the first time -- that it was intended as the first departure from the purposes of avoiding piecemeal appeal and of limiting review of important questions of antitrust law to this Court. We have been unable to discern any such intention. Page 409 U. S. 166The legislative history associated with § 1292(b) contains no mention of cases within the Expediting Act. [Footnote 35] Reference, to be sure, was made to antitrust cases, but it is clear on the face of these statements [Footnote 36] that they refer only to private treble-damages actions. [Footnote 37] In fact, rather than indicating that § 1292(b) was intended to apply to antitrust cases subject to final review in this Court under the Expediting Act, the legislative history strongly suggests an essentially contrary conclusion: the subsection was intended to apply only to interlocutory orders, "not otherwise appealable under" § 1292(a), in civil actions in which the courts of appeals would have jurisdiction over an appeal from the final judgment Page 409 U. S. 167 under 28 U.S.C. § 1291. For instance, in explaining the proposed statute, the Senate Report on § 1292(b) states: [Footnote 38]"The bill results from a growing awareness of the need for expedition of cases pending before the district courts. Many cases which are filed in the Federal district courts require the district judge to entertain motions at an early stage in the proceedings which, if determined, against the plaintiff, result in a final order which would then be appealable to the circuit courts of appeals of the United States. However, such motions, if determined in the plaintiff's favor, are interlocutory, since they do not end the litigation and are not, therefore, under existing provisions of law, appealable."This is hardly supportive of petitioner's position, and yet, throughout the legislative materials, the focus similarly remains on interlocutory orders in civil cases that would be appealable to the courts of appeals upon final judgment. [Footnote 39]Petitioner's case is further weakened by the extraordinary result that acceptance of its position would yield. Section 1292(a) provides for an appeal as a matter of right from a number of specified types of interlocutory orders -- in particular, interlocutory orders granting or denying injunctions. Those interlocutory orders not within subsection (a), however, were made appealable in § 1292(b), subject to the judgment and discretion of the district court and the court of appeals. Greater importance obviously was attached to those Page 409 U. S. 168 types of interlocutory orders specified in subsection (a) than to those covered by (b). [Footnote 40] Nevertheless, petitioner would have us conclude that Congress intended to establish court of appeals jurisdiction for all interlocutory orders in Expediting Act cases except those orders for which an appeal of right is provided in § 1292(a)(1). [Footnote 41] As the Government notes, such a result would effectively turn § 1292 on its head. [Footnote 42] Consistent with the evident thrust of the statute's legislative history, the much more sensible conclusion is that § 1292(b) was intended to establish jurisdiction in the courts of appeals to review interlocutory orders, other than those specified in § 1292(a), in civil cases in which they would have jurisdiction were the judgments final. [Footnote 43] Page 409 U. S. 169At the foundation of the petitioner's position in this case is the contention that § 1292(b) is the panacea for the special burdens imposed on this Court by § 2 of the Expediting Act. Both the Court and various individual Members have, on occasion, commented that,"[w]hatever may have been the wisdom of the Expediting Act in providing direct appeals in antitrust cases at the time of its enactment in 1903, time has proven it unsatisfactory,"for "[d]irect appeals not only place a great burden on the Court, but also deprive us of the valuable assistance of the Courts of Appeals." United States v. Singer Mfg. Co., 374 U. S. 174, 374 U. S. 175 n. 1 (1963); see Ford Motor Co. v. United States, 405 U. S. 562, 405 U. S. 595 n. 5 (1972)(BURGER, C.J., concurring in part and dissenting in part); United States v. Borden Co., 370 U. S. 460, 370 U. S. 477 n. (1962) (Harlan, J., dissenting); Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 355 (1962)(Clark, J., concurring); id. at 370 U. S. 364-365 (Harlan, J., dissenting in part and concurring in part). Further, in light of the present size of our docket, direct review "seldom results in much expedition," since we normally must examine the entire record and resolve all questions, however unsubstantial. Id. at 370 U. S. 355 (Clark, J., concurring); see id. at 370 U. S. 364 (Harlan, J., dissenting in part and concurring in part); United States v. Borden Co., supra, at 370 U. S. 477 n. (Harlan, J., dissenting). Page 409 U. S. 170 Our action today should not be construed as a retreat from these previous remarks. On the contrary, we remain convinced that, under present circumstances, the Expediting Act fails to hasten substantially the final disposition of important antitrust actions while it unjustifiably burdens this Court with inadequately sifted records and with cases that could be disposed of by review in the courts of appeals. Uniformity in the interpretation and administration of the antitrust laws continues to be an important consideration. But such uniformity could be adequately ensured by the availability of review in this Court on certiorari of cases involving issues of general importance -- together with the "[l]imited expediting of such cases, under the discretion of this Court," Ford Motor Co. v. United States, supra, at 405 U. S. 595 n. 5 (BURGER, C.J., concurring in part and dissenting in part), where time is a factor. The simple fact is that"[t]he legal issues in most [Government] civil antitrust cases are no longer so novel or unsettled as to make them especially appropriate for initial appellate consideration by this Court, as compared with those in a variety of other areas of federal law,"Brown Shoe Co. v. United States, supra, at 370 U. S. 364 (Harlan, J., dissenting in part and concurring in part). Yet, despite all of these criticisms, our personal views as to the wisdom of § 2 are, of course, no basis for disregarding what we are bound to recognize as the plain and unaltered intent of Congress to require that appeals in Government civil antitrust cases be taken only from final judgments, and only to this Court.In any event, petitioner has failed to convince us that permitting appeals under § 1292(b) would provide a meaningful solution -- if any solution at all -- to the various problems created for the Court by the Expediting Act. In the first place, the availability of interlocutory appeals under § 1292(b) would not reduce the number of Government civil antitrust cases that could be brought Page 409 U. S. 171 to this Court on direct appeal upon the entrance of a final judgment. Nor would it reduce the number of issues subject to review by this Court; any issue determined on interlocutory appeal would normally be open to consideration on final appeal, [Footnote 44] and doubtless some party would raise an issue appealed under § 1292(b), since it must have involved "a controlling question of law." Also, there would be the added problem of applications for certiorari following a certified appeal in Expediting Act cases. By definition, the issue will be a substantial one, and, where the appellate decision is questionable, it would be necessary to decide whether to grant certiorari, which might require the Court to consider a particular case, on two separate occasions, [Footnote 45] or to deny certiorari, which might mean allowing the district court to proceed to final judgment on an erroneous basis. Given the potential waste of limited judicial resources -- those either of this Court or of the district court -- associated with each choice, neither can be considered attractive. Finally, in emphasizing the value of the screening function that court of appeals review would provide in Expediting Act cases, we have consistently focused upon the lengthy records and complex factual issues common to such cases. Yet, as is illustrated by this very case, in which the certified question relates to a motion to dismiss a party, questions that would be presented to the courts of appeals under § 1292(b) would often involve threshold procedural issues not Page 409 U. S. 172 requiring extensive analysis of the record. [Footnote 46] With respect to such issues, the screening function performed by intermediate appellate review is of far less significance than it would be with respect to questions of, say, relevant market, competition, or agreement. But these latter questions can be properly decided only after full development of the evidence, and it is therefore doubtful, at best, that interlocutory appeals would aid this Court in dealing with them on final review. [Footnote 47]Nor are we even certain that the expeditious termination of litigation in the district courts -- the express purpose of § 1292(b) [Footnote 48] -- would be materially advanced in the context of Government civil antitrust cases by acceptance of petitioner's contention. Permitting interlocutory appeals under § 1292(b) in Expediting Act Page 409 U. S. 173 cases would result in an anomalous situation: the court of appeals would have jurisdiction over certain interlocutory orders, but not over the final judgment, which would be appealable only to this Court. An interlocutory appeal taken under § 1292(b) must, of course, involve "a controlling question of law" the immediate appeal of which "may materially advance the ultimate termination of the litigation." In the normal case, the decision of such a question on interlocutory appeal is final, since the same court reviews the final judgment, and the likelihood of review in this Court on certiorari is very small. Here, however, the decision of the court of appeals on the interlocutory order would essentially be only an advisory opinion to the district court, since the issue would usually be open to relitigation on appeal of the final judgment to this Court. [Footnote 49] The net result would be added work for the courts of appeals, [Footnote 50] with no assurance that there would ultimately be a saving of district court time.IIIHence, we conclude that § 1292(b) did not establish jurisdiction in the Court of Appeals over interlocutory orders in Expediting Act cases. The exclusive nature of Page 409 U. S. 174 the jurisdiction created in § 2 of the Expediting Act has consistently been recognized by this Court, and we hold today that that exclusivity remains unimpaired. Despite our interest in a restructuring of our jurisdiction under the Expediting Act, we are neither willing nor able to adopt the ungainly half-measure offered by the petitioner in this case.Affirmed

U.S. Supreme CourtTidewater Oil Co. v. United States, 409 U.S. 151 (1972)Tidewater Oil Co. v. United StatesNo. 71-366Argued October 11, 1972Decided December 6, 1972409 U.S. 151SyllabusThe Expediting Act, providing that, in a civil antitrust action brought by the United States in a federal district court, an appeal from that court's final judgment will lie only to this Court, lodged exclusive appellate jurisdiction over such actions in this Court, and thus bars the courts of appeals from asserting jurisdiction over interlocutory orders covered by 28 U.S.C. § 1292(b), as well as over other interlocutory orders specified in § 1292(a). The legislative history of those provisions contains no indication of a congressional intent to impair the original exclusivity of this Court's jurisdiction under the Expediting Act. Pp. 409 U. S. 154-174.Affirmed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, and POWELL, JJ., joined. WHITE, J., filed a concurring statement, post, p. 409 U. S. 174. DOUGLAS, J., filed a dissenting opinion, post, p. 409 U. S. 174. STEWART, J., filed a dissenting opinion, which REHNQUIST, J., joined, and DOUGLAS, J., joined in part, post, p. 409 U. S. 178.

1992_91-781

phrase "property described in subsection (a)." Rather, the result reached in this case is correct because § 881(h) is best read as an expression of the traditional relation-back doctrine, which is a doctrine of retroactive vesting of title that takes effect only upon entry of the judicial order of forfeiture or condemnation. Under the alternative readingthat § 881 (h) provides for immediate, undecreed, secret vesting of title in the United States at the time of the illegal transaction-either the plain language of § 881 (a)(6)'s innocent-owner provision must be slighted or the provision must be deprived of all effect. Additionally, the traditional relation-back principle is the only interpretation of § 881 (h) that makes sense within the structure of the applicable customs forfeiture procedures, under which the Government does not gain title until there is a forfeiture decree, and provides the only explanation for the textual distinction between § 881 (a)(6)'s innocent "owner" and § 853's innocent "transferee" provisions. Pp. 131-138.2. There is no proper basis for the plurality's conclusion that respondent has assumed the burden of proving that she had no knowledge of the alleged source of Brenna's gift when she received it, as opposed to when the illegal acts giving rise to forfeiture occurred. The issue of what is the relevant time for purposes of determining lack of knowledge is not fairly included in the question on which the Court granted certiorari, and the Court need not resolve it. pp. 138-139.STEVENS, J., announced the judgment of the Court and delivered an opinion, in which BLACKMUN, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 131. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., and WHITE, J., joined, post, p. 139.Amy L. Wax argued the cause for the United States.With her on the briefs were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Roberts, and David T. Shelledy.James A. Plaisted argued the cause for the respondents.With him on the briefs was Shalom D. Stone. **Briefs of amici curiae urging affirmance were filed for the American Bankers Association by John J. Gill III and Michael F. Crotty; for the American Land Title Association et al. by David F. B. Smith; and for the Federal Home Loan Mortgage Corp. by Diane Marshall Ennist.Robert A. Ginsburg and Thomas W Logue filed a brief for the Dade County Tax Collector et al. as amici curiae.114114 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.JUSTICE STEVENS announced the judgment of the Court and delivered an opinion, in which JUSTICE BLACKMUN, JUSTICE O'CONNOR, and JUSTICE SOUTER join.The question presented is whether an owner's lack of knowledge of the fact that her home had been purchased with the proceeds of illegal drug transactions constitutes a defense to a forfeiture proceeding under the Comprehensive Drug Abuse Prevention and Control Act of 1970, § 511(a), 84 Stat. 1276, as amended, 21 U. S. C. § 881(a)(6).1IOn April 3, 1989, the Government filed an in rem action against the parcel of land in Rumson, New Jersey, on which respondent's home is located. The verified complaint alleged that the property had been purchased in 1982 by respondent with funds provided by Joseph Brenna that were "the proceeds traceable to an [unlawful] exchange for a controlled substance," App. 13, and that the property was therefore subject to seizure and forfeiture under § 881(a)(6), id., at 15.21 The statute provides:"The following shall be subject to forfeiture to the United States and no property right shall exist in them:"(6) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of [21 U. S. C. §§ 801-904], all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this subchapter, except that no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner."2 See n. 1, supra. The complaint also alleged that the property had been used in 1986 to facilitate the distribution of proceeds of an illegal115On April 12, 1989, in an ex parte proceeding, the District Court determined that there was probable cause to believe the premises were subject to forfeiture, and issued a summons and warrant for arrest authorizing the United States marshal to take possession of the premises. Respondent thereafter asserted a claim to the property, was granted the right to defend the action,3 and filed a motion for summary judgment.During pretrial proceedings, the following facts were established. In 1982, Joseph Brenna gave respondent approximately $240,000 to purchase the home that she and her three children have occupied ever since. Respondent is the sole owner of the property. From 1981 until their separation in 1987, she maintained an intimate personal relationship with Brenna. There is probable cause to believe that the funds used to buy the house were proceeds of illegal drug trafficking, but respondent swears that she had no knowledge of its origins.drug transaction, and was therefore subject to forfeiture pursuant to § 881(a)(7), which provides:"The following shall be subject to forfeiture to the United States and no property right shall exist in them:"(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner."No issue concerning the Government's claim under subparagraph (7) is presented before us.3 The United States Marshals Service entered into an agreement with respondent that allows her to remain in possession of the property pending the outcome of the litigation.116116 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.Among the grounds advanced in support of her motion for summary judgment was the claim that she was an innocent owner under § 881(a)(6). The District Court rejected this defense for two reasons: First, it ruled that "the innocent owner defense may only be invoked by those who can demonstrate that they are bona fide purchasers for value" (emphasis in original); 4 second, the court read the statute to offer the innocent owner defense only to persons who acquired an interest in the property before the acts giving rise to the forfeiture took place.5Respondent was allowed to take an interlocutory appeal pursuant to 28 U. s. C. § 1292(b). One of the controlling questions of law presented to the Court of Appeals was:"Whether an innocent owner defense may be asserted by a person who is not a bona fide purchaser for value concerning a parcel of land where the government has established probable cause to believe that the parcel of land was purchased with monies traceable to drug proceeds." 742 F. Supp. 189, 192 (NJ 1990).Answering that question in the affirmative, the Court of Appeals remanded the case to the District Court to determine whether respondent was, in fact, an innocent owner.4 "I find that the claimant cannot successfully invoke the 'innocent owner' defense here, because she admits that she received the proceeds to purchase the premises as a gift from Mr. Brenna. More particularly, I find that where, as here, the government has demonstrated probable cause to believe that property is traceable to proceeds from drug transactions, the innocent owner defense may only be invoked by those who can demonstrate that they are bona fide purchasers for value." 738 F. Supp. 854, 860 (NJ 1990).5 "In particular, the 'innocent owner defense' at issue provides that 'no property shall be forfeited ... to the extent of the interest of an owner, by reason of any act or omission ... committed or omitted without the knowledge or consent of that owner.' 21 U. S. C. § 881(a)(6) (emphasis supplied). This language implies that the acts or omissions giving rise to forfeiture must be committed after the third party acquires a legitimate ownership interest in the property." Ibid. (emphasis in original).117The Court of Appeals refused to limit the innocent owner defense to bona fide purchasers for value because the plain language of the statute contains no such limitation,6 because it read the legislative history as indicating that the term "owner" should be broadly construed,7 and because the difference between the text of § 881(a)(6) and the text of the criminal forfeiture statute evidenced congressional intent not to restrict the civil section in the same way.8The Court of Appeals also rejected the argument that respondent could not be an innocent owner unless she acquired the property before the drug transaction occurred. In advancing that argument the Government had relied on the "relation back" doctrine embodied in § 881(h), which provides that "[a]ll right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section." The court held that the relation back doctrine applied only to "property described in subsection (a)" and that the property at issue would not fit that description if respondent could establish her innocent owner defense. The court concluded that the Government's interpretation of § 881(h) "would essentially serve to emasculate the innocent owner defense provided for in section 881(a)(6). No one ob-6 "Despite the appeal of this analysis, the plain language of the innocent owner provision speaks only in terms of an 'owner' and in no way limits the term 'owner' to a bona fide purchaser for value." 937 F.2d 98, 101 (CA3 1991).7"Furthermore, in United States v. Parcel of Real Property Known as 6109 Grubb Road, 886 F.2d 618 (3d Cir. 1989), we determined, after reviewing the legislative history of section 881(a)(6), that 'the term "owner" should be broadly interpreted to include any person with a recognizable legal or equitable interest in the property seized.' Id. at 625 n. 4 (quoting 1978 U. S. Code Congo & Admin. News at 9522-23)." Id., at 101-102.8 "Moreover, as the district court pointed out, the criminal forfeiture statute, section 853, is explicitly limited to bona fide purchasers for value, while in section 881 Congress omitted such limiting language. We believe that such a difference was intended by Congress." Ibid.118118 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.taining property after the occurrence of the drug transaction-including a bona fide purchase for value-would be eligible to offer an innocent owner defense on his behalf." 937 F.2d 98, 102 (CA3 1991).The conflict between the decision of the Court of Appeals and decisions of the Fourth and Tenth Circuits, see In re One 1985 Nissan, 889 F.2d 1317 (CA4 1989); Eggleston v. Colorado, 873 F.2d 242, 245-248 (CAlO 1989), led us to grant certiorari, 503 U. S. 905 (1992). We now affirm.IILaws providing for the official seizure and forfeiture of tangible property used in criminal activity have played an important role in the history of our country. Colonial courts regularly exercised jurisdiction to enforce English and local statutes authorizing the seizure of ships and goods used in violation of customs and revenue laws.9 Indeed, the misuse9 "Long before the adoption of the Constitution the common law courts in the Colonies-and later in the states during the period of Confederation-were exercising jurisdiction in rem in the enforcement of forfeiture statutes. Like the Exchequer, in cases of seizure on navigable waters they exercised a jurisdiction concurrently with the courts of admiralty. But the vice-admiralty courts in the Colonies did not begin to function with any real continuity until about 1700 or shortly afterward. See Andrews, Vice-Admiralty Courts in the Colonies, in Records of the ViceAdmiralty Court of Rhode Island, 1617-1752 (ed. Towle, 1936), p. 1; Andrews, The Colonial Period of American History, vol. 4, ch. 8; Harper, The English Navigation Laws, ch. 15; Osgood, the American Colonies in the 18th Century, vol. 1, pp. 185-222, 299-303. By that time, the jurisdiction of common law courts to condemn ships and cargoes for violation of the Navigation Acts had been firmly established, apparently without question, and was regularly exercised throughout the colonies. In general the suits were brought against the vessel or article to be condemned, were tried by jury, closely followed the procedure in Exchequer, and if successful resulted in judgments of forfeiture or condemnation with a provision for119of the hated general warrant is often cited as an important cause of the American Revolution.10The First Congress enacted legislation authorizing the seizure and forfeiture of ships and cargos involved in customs offenses.ll Other statutes authorized the seizure of ships engaged in piracy.12 When a ship was engaged in acts of "piratical aggression," it was subject to confiscation notwithstanding the innocence of the owner of the vessel.13sale." C. J. Hendry Co. v. Moore, 318 U. S. 133, 139-140 (1943) (footnotes omitted).lOWriting for the Court in Stanford v. Texas, 379 U. S. 476, 481-482 (1965), Justice Stewart explained: "Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as 'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,' because they placed 'the liberty of every man in the hands of every petty officer.' The historic occasion of that denunciation, in 1761 at Boston, has been characterized as 'perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. "Then and there," said John Adams, "then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.''' Boyd v. United States, 116 U. S. 616, 625."11 See, e. g., §§ 12,36, 1 Stat. 39, 47; §§ 13, 14,22,27,67, 1 Stat. 157-159, 161, 163-164, 176.12 See The Palmyra, 12 Wheat. 1, 8 (1827).13 "The next question is, whether the innocence of the owners can withdraw the ship from the penalty of confiscation under the act of Congress. Here, again, it may be remarked that the act makes no exception whatsoever, whether the aggression be with or without the co-operation of the owners. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner. The vessel or boat (says the act of Congress) from which such piratical aggression, &c., shall have been first attempted or made shall be120120 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.Later statutes involved the seizure and forfeiture of distilleries and other property used to defraud the United States of tax revenues from the sale of alcoholic beverages. See, e. g., United States v. Stowell, 133 U. S. 1, 11-12 (1890). In these cases, as in the piracy cases, the innocence of the owner of premises leased to a distiller would not defeat a decree of condemnation based on the fraudulent conduct of the lessee.14condemned. Nor is there any thing new in a provision of this sort. It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offense has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party. The doctrine also is familiarly applied to cases of smuggling and other misconduct under our revenue laws; and has been applied to other kindred cases, such as cases arising on embargo and nonintercourse acts. In short, the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." Harmony v. United States, 2 How. 210, 233-234 (1844).14 "Beyond controversy, the title of the premises and property was in the claimant; and it is equally certain that he leased the same to the lessee for the purposes of a distillery, and with the knowledge that the lessee intended to use the premises to carry on that business, and that he did use the same for that purpose."Fraud is not imputed to the owner of the premises; but the evidence and the verdict of the jury warrant the conclusion that the frauds charged in the information were satisfactorily proved, from which it follows that the decree of condemnation is correct, if it be true, as heretofore explained, that it was the property and not the claimant that was put to trial under the pleadings; and we are also of the opinion that the theory adopted by the court below, that, if the lessee of the premises and the operator of the distillery committed the alleged frauds, the government was entitled to a verdict, even though the jury were of the opinion that the claimant was ignorant of the fraudulent acts or omissions of the distiller." Dobbins's Distillery v. United States, 96 U. S. 395, 403-404 (1878).121In all of these early cases the Government's right to take possession of property stemmed from the misuse of the property itself. Indeed, until our decision in Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 (1967), the Government had power to seize only property that" 'the private citizen was not permitted to possess.'" 15 The holding in that case that the Fourth Amendment did not prohibit the seizure of "mere evidence" marked an important expansion of governmental power. See Zurcher v. Stanford Daily, 436 U. S. 547, 577580 (1978) (STEVENS, J., dissenting).The decision by Congress in 1978 to amend the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, to authorize the seizure and forfeiture of proceeds of illegal drug transactions, see 92 Stat. 3777, also marked an important expansion of governmental power.16 Before that amendment, the statute had authorized forfeiture of only the15 "Thus stolen property-the fruits of crime-was always subject to seizure. And the power to search for stolen property was gradually extended to cover 'any property which the private citizen was not permitted to possess,' which included instrumentalities of crime (because of the early notion that items used in crime were forfeited to the State) and contraband. Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif. L. Rev. 474, 475. No separate governmental interest in seizing evidence to apprehend and convict criminals was recognized; it was required that some property interest be asserted. The remedial structure also reflected these dual premises. Trespass, replevin, and the other means of redress for persons aggrieved by searches and seizures, depended upon proof of a superior property interest. And since a lawful seizure presupposed a superior claim, it was inconceivable that a person could recover property lawfully seized." Warden v. Hayden, 387 U. S., at 303-304.16 A precedent for this expansion had been established in 1970 by the Racketeer Influenced and Corrupt Organizations Act (RICO), see 18 U. S. C. § 1963(a). Even RICO, however, did not specifically provide for the forfeiture of "proceeds" until 1984, when Congress added § 1963(a)(3) to resolve any doubt whether it intended the statute to reach so far. See S. Rep. No. 98-225, pp. 191-200 (1983); Russello v. United States, 464 U. S. 16 (1983).122122 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.illegal substances themselves and the instruments by which they were manufactured and distributed.17 The original forfeiture provisions of the 1970 statute had closely paralleled the early statutes used to enforce the customs laws, the piracy laws, and the revenue laws: They generally authorized the forfeiture of property used in the commission of criminal activity, and they contained no innocent owner defense. They applied to stolen goods, but they did not apply to proceeds from the sale of stolen goods. Because the statute, after its 1978 amendment, does authorize the forfeiture of such proceeds and also contains an express and novel protec-17 Section 511(a) of the 1970 Act, 84 Stat. 1276, provided:"The following shall be subject to forfeiture to the United States and no property right shall exist in them:"(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this title."(2) All raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substance in violation of this title."(3) All property which is used, or intended for use, as a container for property described in paragraph (1) or (2)."(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2), except that-"(A) no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this section unless it shall appear that the owner or other person in charge of such conveyance was a consenting party or privy to a violation of this title or title III; and"(B) no conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any State."(5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this title."123tion for innocent owners, we approach the task of construing it with caution.IIIThe Court of Appeals correctly concluded that the protection afforded to innocent owners is not limited to bona fide purchasers. The text of the statute is the strongest support for this conclusion. The statute authorizes the forfeiture of moneys exchanged for a controlled substance, and "all proceeds traceable to such an exchange," with one unequivocal exception:"[N]o property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner." 21 U. S. C. § 881(a)(6).The term "owner" is used three times and each time it is unqualified. Such language is sufficiently unambiguous to foreclose any contention that it applies only to bona fide purchasers. Presumably that explains why the Government does not now challenge this aspect of the Court of Appeals' ruling.That the funds respondent used to purchase her home were a gift does not, therefore, disqualify respondent from claiming that she is an owner who had no knowledge of the alleged fact that those funds were "proceeds traceable" to illegal sales of controlled substances. Under the terms of the statute, her status would be precisely the same if, instead of having received a gift of $240,000 from Brenna, she had sold him a house for that price and used the proceeds to buy the property at issue.IVAlthough the Government does not challenge our interpretation of the statutory term "owner," it insists that respondent is not the "owner" of a house she bought in 1982 and has lived in ever since. Indeed, it contends that she never has124124 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.been the owner of this parcel of land because the statute vested ownership in the United States at the moment when the proceeds of an illegal drug transaction were used to pay the purchase price. In support of its position, the Government relies on both the text of the 1984 amendment to the statute and the common-law relation back doctrine. We conclude, however, that neither the amendment nor the common-law rule makes the Government an owner of property before forfeiture has been decreed.In analyzing the Government's relation back argument, it is important to remember that respondent invokes the innocent owner defense against a claim that proceeds traceable to an illegal transaction are forfeitable. The Government contends that the money that Brenna received in exchange for narcotics became Government property at the moment Brenna received it and that respondent's house became Government property when that tainted money was used in its purchase. Because neither the money nor the house could have constituted forfeitable proceeds until after an illegal transaction occurred, the Government's submission would effectively eliminate the innocent owner defense in almost every imaginable case in which proceeds could be forfeited. It seems unlikely that Congress would create a meaningless defense. Moreover, considering that a logical application of the Government's submission would result in the forfeiture of property innocently acquired by persons who had been paid with illegal proceeds for providing goods or services to drug traffickers,18 the burden of persuading us that Congress intended such an inequitable result is especially heavy.18 At oral argument the Government suggested that a narrow interpretation of the word "proceeds" would "probably" prevent this absurdity. See Tr. of Oral Arg. 27. The Government's brief, however, took the unequivocal position that the statute withholds the innocent owner defense from anyone who acquires proceeds after the illegal transaction took place. See Brief for United States 10, 21, 25, 27.125The Government recognizes that the 1984 amendment did not go into effect until two years after respondent acquired the property at issue in this case. It therefore relies heavily on the common-law relation back doctrine applied to in rem forfeitures. That doctrine applied the fiction that property used in violation of law was itself the wrongdoer that must be held to account for the harms it had caused.19 Because the property, or "res," was treated as the wrongdoer, it was appropriate to regard it as the actual party to the in rem forfeiture proceeding. Under the relation back doctrine, a decree of forfeiture had the effect of vesting title to the offending res in the Government as of the date of its offending conduct. Because we are not aware of any common-law precedent for treating proceeds traceable to an unlawful exchange as a fictional wrongdoer subject to forfeiture, it is not entirely clear that the common-law relation back doctrine is applicable. Assuming that the doctrine does apply, however, it is nevertheless clear that under the common-law rule the fictional and retroactive vesting was not self-executing.Chief Justice Marshall explained that forfeiture does not automatically vest title to property in the Government:"It has been proved, that in all forfeitures accruing at common law, nothing vests in the government until some legal step shall be taken for the assertion of its right, after which, for many purposes, the doctrine of relation carries back the title to the commission of the offence." United States v. Grundy, 3 Cranch 337, 350-351 (1806).2019See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663,680684 (1974).20 In his dissent, JUSTICE KENNEDY advocates the adoption of a new common-law rule that would avoid the need to construe the terms of the statute that created the Government's right to forfeit proceeds of drug transactions. Under his suggested self-executing rule, patterned after an amalgam of the law of trusts and the law of secured transactions, the Government would be treated as the owner of a secured or beneficial interest in forfeitable proceeds even before a decree of forfeiture is entered. The various authorities that he cites support the proposition that if such126126 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.The same rule applied when a statute (a statute that contained no specific relation back provision) authorized the forfeiture. In a passage to which the Government has referred US,21 we stated our understanding of how the Government's title to forfeited property relates back to the moment of forfeit ability:"By the settled doctrine of this court, whenever a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offence is committed; andan interest exists, it may be extinguished by a sale to a bona fide purchaser; they provide no support for the assumption that such an interest springs into existence independently. As a matter of common law, his proposal is inconsistent with Chief Justice Marshall's statement that "nothing vests in the government until some legal step shall be taken," and with the cases cited by JUSTICE SCALIA, post, at 132. As a matter of statutory law, it is improper to rely on § 881(a) as the source of the Government's interest in proceeds without also giving effect to the statutory language defining the scope of that interest. That a statutory provision contains "puzzling" language, or seems unwise, is not an appropriate reason for simply ignoring its text.JUSTICE KENNEDY'S dramatic suggestion that our construction of the 1984 amendment "rips out," post, at 145, the "centerpiece of the Nation's drug enforcement laws," post, at 144, rests on what he characterizes as the "safe" assumption that the innocent owner defense would be available to "an associate" of a criminal who could "shelter the proceeds from forfeiture, to be reacquired once he is clear from law enforcement authorities," ibid. As a matter of fact, forfeitable proceeds are much more likely to be possessed by drug dealers themselves than by transferees sufficiently remote to qualify as innocent owners; as a matter of law, it is quite clear that neither an "associate" in the criminal enterprise nor a temporary custodian of drug proceeds would qualify as an innocent owner; indeed, neither would a sham bona fide purchaser.21 See Pet. for Cert. 9-10; Brief for United States 17.127the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienations, even to purchasers in good faith." United States v. Stowell, 133 U. S., at 16-17 (emphases added).If the Government wins a judgment of forfeiture under the common-law rule-which applied to common-law forfeitures and to forfeitures under statutes without specific relation back provisions-the vesting of its title in the property relates back to the moment when the property became forfeitable. Until the Government does win such a judgment, however, someone else owns the property. That person may therefore invoke any defense available to the owner of the property before the forfeiture is decreed.In this case a statute allows respondent to prove that she is an innocent owner. And, as the Chief Justice further explained in Grundy, if a forfeiture is authorized by statute, "the rules of the common law may be dispensed with," 3 Cranch, at 351. Congress had the opportunity to dispense with the common-law doctrine when it enacted § 881(h); as we read that subsection, however, Congress merely codified the common-law rule. Because that rule was never applied to the forfeiture of proceeds, and because the statute now contains an innocent owner defense, it may not be immediately clear that they lead to the same result.The 1984 amendment provides:"All right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section." 21 U. S. C. § 881(h).Because proceeds traceable to illegal drug transactions are a species of "property described in subsection (a)," the Government argues that this provision has the effect of preventing such proceeds from becoming the property of anyone other than the United States. The argument fails.128128 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.Although proceeds subject to § 881(h) are "described" in the first part of subsection (a)(6), the last clause of that subsection exempts certain proceeds-proceeds owned by one unaware of their criminal source-from forfeiture. As the Senate Report on the 1984 amendment correctly observed, the amendment applies only to "property which is subject to civil forfeiture under section 881(a)." 22 Under § 881(a)(6), the property of one who can satisfy the innocent owner defense is not subject to civil forfeiture. Because the success of any defense available under § 881 (a) will necessarily determine whether § 881(h) applies, § 881(a)(6) must allow an assertion of the defense before §881(h) applies.2322 The Report provides:"Section 306 also adds two new subsections at the end of section 881.The first provides that all right, title, and interest in property which is subject to civil forfeiture under section 881 (a) vests in the United States upon the commission of the acts giving rise to the forfeiture." S. Rep. No. 98-225, p. 215 (1983) (emphasis added).23 The logic of the Government's argument would apparently apply as well to the innocent owner defense added to the statute in 1988. That amendment provides, in part:"[N]o conveyance shall be forfeited under this paragraph to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner." § 6075(3)(C), 102 Stat. 4324. That amendment presumably was enacted to protect lessors like the owner whose yacht was forfeited in a proceeding that led this Court to observe:"It therefore has been implied that it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent. See, [Peisch v. Ware, 4 Cranch 347, 364 (1808)]; Goldsmith-Grant Co. v. United States, 254 U. S., at 512; United States v. One Ford Coupe Automobile, 272 U. S., at 333; Van Oster v. Kansas, 272 U. S., at 467. Similarly, the same might be said of an owner who proved not only that he was uninvolved in and unaware of the wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of his property; for, in that circumstance, it would be difficult to conclude that forfeiture served legitimate purposes and was not unduly oppressive. Cf. Armstrong v.129Therefore, when Congress enacted this innocent owner defense, and then specifically inserted this relation back provision into the statute, it did not disturb the common-law rights of either owners of forfeitable property or the Government. The common-law rule had always allowed owners to invoke defenses made available to them before the Government's title vested, and after title did vest, the common-law rule had always related that title back to the date of the commission of the act that made the specific property forfeitable. Our decision denies the Government no benefits of the relation back doctrine. The Government cannot profit from the common-law doctrine of relation back until it has obtained a judgment of forfeiture. And it cannot profit from the statutory version of that doctrine in § 881(h) until respondent has had the chance to invoke and offer evidence to support the innocent owner defense under § 881(a)(6).VAs a postscript we identify two issues that the parties have addressed, but that need not be decided.The Government has argued that the Court of Appeals' construction of the statute is highly implausible because it would enable a transferee of the proceeds of an illegal exchange to qualify as an innocent owner if she was unaware of the illegal transaction when it occurred but learned about it before she accepted the forfeitable proceeds. Respondent disputes this reading of the statute and argues that both legislative history and common sense suggest that the transferee's lack of knowledge must be established as of the time the proceeds at issue are transferred.24 Moreover, whetherUnited States, 364 U. S. 40, 49 (1960)." Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S., at 689-690 (footnote omitted).24 See Brief for Respondent 31-32, 37-38; Tr. of Oral Arg. 38. The several amici make the same point, see Brief for American Bankers Association as Amicus Curiae 15; Brief for Federal Home Loan Mortgage Corpo-130130 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDOpinion of STEVENS, J.or not the text of the statute is sufficiently ambiguous to justify resort to the legislative history, equitable doctrines may foreclose the assertion of an innocent owner defense by a party with guilty knowledge of the tainted character of the property. In all events, we need not resolve this issue in this case; respondent has assumed the burden of convincing the trier of fact that she had no knowledge of the alleged source of Brenna's gift in 1982, when she received it.25 In its order denying respondent's motion for summary judgment, the District Court assumed that respondent could prove what she had alleged, as did the Court of Appeals in allowing the interlocutory appeal from that order. We merely decide, as did both of those courts, whether her asserted defense was insufficient as a matter of law.26At oral argument, the Government also suggested that the statutory reference to "all proceeds traceable to such an exchange" is subject to a narrowing construction that might avoid some of the harsh consequences suggested in the various amici briefs expressing concerns about the impact of the statute on real estate titles. See Tr. of Oral Arg. 5-10, 1925. If a house were received in exchange for a quantity of illegal substances and that house were in turn exchanged for another house, would the traceable proceeds consist of the first house, the second house, or both, with the Government having an election between the two? Questions of this char-ration as Amicus Curiae 11-12; Brieffor American Land Title Association et al. as Amici Curiae 11-12; Brief for Dade County Tax Collector et al. as Amici Curiae 16-17.25 "The statute should be read to require that the owner assert his lack of knowledge of the criminal transaction at the time of the transfer. Since Goodwin did not have any knowledge of the alleged criminal transaction until long after the transfer, she should be protected by the innocent owner clause." Brief for Respondent 37-38.26 If she can show that she was unaware of the illegal source of the funds at the time Brenna transferred them to her, then she was necessarily unaware that they were the profits of an illegal transaction at the time of the transaction itself.131acter are not embraced within the issues that we granted certiorari to resolve, however, and for that reason, see Yee v. Escondido, 503 U. S. 519, 535-538 (1992), we express no opinion concerning the proper construction of that statutory term.The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1992SyllabusUNITED STATES v. A PARCEL OF LAND, BUILDINGS, APPURTENANCES, AND IMPROVEMENTS, KNOWN AS 92 BUENA VISTA AVENUE, RUMSON, NEW JERSEY, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 91-781. Argued October 13, 1992-Decided February 24, 1993The Government filed an in rem action against the parcel of land on which respondent's home is located, alleging that she had purchased the property with funds given her by Joseph Brenna that were "the proceeds traceable" to illegal drug trafficking, and that the property was therefore subject to seizure and forfeiture under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S. C. § 881(a)(6). The District Court ruled, among other things, that respondent, who claims that she had no knowledge of the origins of the funds used to buy her house, could not invoke the "innocent owner" defense in § 881(a)(6), which provides that "no property shall be forfeited ... , to the extent of the interest of an owner, by reason of any act ... established by that owner to have been committed ... without the knowledge or consent of that owner." The Court of Appeals remanded on interlocutory appeal, rejecting the District Court's reasoning that the innocent owner defense may be invoked only by persons who are bona fide purchasers for value and by those who acquired their property interests before the acts giving rise to the forfeiture took place.Held: The judgment is affirmed. 937 F.2d 98, affirmed.JUSTICE STEVENS, joined by JUSTICE BLACKMUN, JUSTICE O'CONNOR, and JUSTICE SOUTER, concluded that an owner's lack of knowledge of the fact that her home had been purchased with the proceeds of illegal drug transactions constitutes a defense to a forfeiture proceeding under the statute. Pp. 118-131.(a) The task of construing the statute must be approached with caution. Although customs, piracy, and revenue laws have long provided for the official seizure and forfeiture of tangible property used in the commission of criminal activity, the statute marked an important expansion of governmental power by authorizing the forfeiture of proceeds from the sale of illegal goods and by creating an express and novel protection for innocent owners. Pp. 118-123.112112 UNITED STATES v. PARCEL OF RUMSON, N. J., LANDSyllabus(b) The statute's use of the unqualified term "owner" in three places is sufficiently unambiguous to foreclose any contention that the protection afforded to innocent owners is limited to bona fide purchasers. That the funds respondent used to purchase her home were a gift does not, therefore, disqualify her from claiming that she is such an owner. P.123.(c) Contrary to the Government's contention, the statute did not vest ownership in the United States at the moment when the proceeds of the illegal drug transaction were used to pay the purchase price of the property at issue, thereby preventing respondent from ever becoming an "owner." Neither of the "relation back" doctrines relied on by the Government-the doctrine embodied in § 881(h), which provides that "[a]ll right, title and interest in property described in subsection (a) ... shall vest in the United States upon commission of the act giving rise to forfeiture under this section," or the common-law doctrine, under which a forfeiture decree effectively vests title to the offending res in the Government as of the date of the offending conduct-makes the Government an owner of property before forfeiture has been decreed. Assuming that the common-law doctrine applies, it is clear that the fictional and retroactive vesting of title thereunder is not self-executing, but occurs only when the Government wins a judgment of forfeiture. Until then, someone else owns the property and may invoke any available defense, including the assertion that she is an innocent owner. A reading of § 881 (h) demonstrates that it did not dispense with, but merely codified, the common-law doctrine and leads to the same result. The legislative history reveals that § 881 (h) applies only to property that is subject to civil forfeiture under § 881(a). Although proceeds traceable to illegal drug transactions are, in § 881 (h)'s words, "property described in subsection" (a)(6), the latter subsection exempts from civil forfeiture proceeds owned by one unaware of their criminal source and therefore must allow an assertion of the innocent owner defense before § 881 (h) applies. Pp. 123-129.(d) This Court need not resolve, inter alia, the parties' dispute as to the point at which guilty knowledge of the tainted character of property will deprive a party of an innocent owner defense, because respondent has assumed the burden of convincing the trier of fact that she had no knowledge of the alleged source of Brenna's gift when she received it. Pp. 129-131.JUSTICE SCALIA, joined by JUSTICE THOMAS, concluded:1. While it is true that § 881 (a)(6)'s "innocent owner" exception produces the same result as would an "innocent owner" exception to traditional common-law forfeiture (with its relation-back principle), that conclusion cannot be based upon the plurality's implausible reading of the113Full Text of Opinion

1977_77-539

MR. JUSTICE MARSHALL delivered the opinion of the Court.Under § 303(a) of the Tariff Act of 1930, 46 Stat. 687, as amended, 19 U.S.C. § 1303(a) (1976 ed.), whenever a foreign country pays a "bounty or grant" upon the exportation of a product from that country, the Secretary of the Treasury is required to levy a countervailing duty, "equal to the net amount of such bounty or grant," upon importation of the product into the United States. [Footnote 1] The issue in this case is whether Japan confers a "bounty" or "grant" on certain consumer electronic products by failing to impose a commodity tax on those products when they are exported, while imposing the tax on the products when they are sold in Japan. Page 437 U. S. 446IUnder the Commodity Tax Law of Japan, Law No. 48 of 1962, see App. 44-48, a variety of consumer goods, including the electronic products at issue here, are subject to an "indirect" tax -- a tax levied on the goods themselves, and computed as a percentage of the manufacturer's sales price, rather than the income or wealth of the purchaser or seller. The Japanese tax applies both to products manufactured in Japan and to those imported into Japan. [Footnote 2] On goods manufactured in Japan, the tax is levied upon shipment from the factory; imported products are taxed when they are withdrawn from the customs warehouse. Only goods destined for consumption in Japan are subject to the tax, however. Products shipped for export are exempt, and any tax paid upon the shipment of a product is refunded if the product is subsequently exported. Thus, the tax is "remitted" on exports. [Footnote 3]In April, 1970, petitioner, an American manufacturer of consumer electronic products, filed a petition with the Commissioner of Customs, [Footnote 4] requesting assessment of countervailing duties on a number of consumer electronic products exported from Japan to this country. [Footnote 5] Petitioner alleged that Japan Page 437 U. S. 447 had bestowed a "bounty or grant" upon exportation of these products by, inter alia, remitting the Japanese Commodity Tax that would have been imposed had the products been sold within Japan. In January, 1976, after soliciting the views of interested parties and conducting an investigation pursuant to Treasury Department regulations, see 19 CFR § 159.47(c) (1977), the Acting Commissioner of Customs published a notice of final determination, rejecting petitioner's request. 41 Fed Reg. 1298 (1976). [Footnote 6]Petitioner then filed suit in the Customs Court, claiming that the Treasury Department had erred in concluding that remission of the Japanese Commodity Tax was not a bounty or grant within the purview of the countervailing duty statute. [Footnote 7] The Department defended on the ground that, since the remission of indirect taxes was "nonexcessive," the statute did not require assessment of a countervailing duty. In the Department's terminology, a remission of taxes is "nonexcessive" if it does not exceed the amount of tax paid or otherwise due; thus, for example, if a tax of $5 is levied on goods at the factory, the return of the $5 upon exportation would be "nonexcessive," whereas a payment of $8 from the government to the manufacturer upon exportation would be "excessive" by $3. The Department pointed out that the current Page 437 U. S. 448 version of § 303 is, in all relevant respects, unchanged from the countervailing duty statute enacted by Congress in 1897, [Footnote 8] and that the Secretary -- in decisions dating back to 1898 --has always taken the position that the nonexcessive remission of an indirect tax is not a bounty or grant within the meaning of the statute. [Footnote 9]On cross-motions for summary judgment, the Customs Court ruled in favor of petitioner and ordered the Secretary to assess countervailing duties on all Japanese consumer electronic Page 437 U. S. 449 products specified in petitioner's complaint. 430 F. Supp. 242 (1977). The court acknowledged the Secretary's longstanding interpretation of the statute. It concluded, however, that this administrative practice could not be sustained in light of this Court's decision in Downs v. United States, 187 U. S. 496 (1903), which held that an export bounty had been conferred by a complicated Russian scheme for the regulation of sugar production and sale, involving, among other elements, remission of excise taxes in the event of exportation.On appeal by the Government, the Court of Customs and Patent Appeals, dividing 3-2, reversed the judgment of the Customs Court and remanded for entry of summary judgment in favor of the United States. 64 C.C.P.A. 130, 562 F.2d 1209 (1977). The majority opinion distinguished Downs on the ground that it did not decide the question of whether nonexcessive remission of an indirect tax, standing alone, constitutes a bounty or grant upon exportation. The court then examined the language of § 303 and the legislative history of the 1897 provision and concluded that,"in determining whether a bounty or grant has been conferred, it is the economic result of the foreign government's action which controls."64 C.C.P.A. at 138-139, 562 F.2d at 1216. Relying primarily on the "long-continued" and "uniform" administrative practice, id. at 142-143, 146-147, 562 F.2d at 1218-1219, 1222-1223, and secondarily on congressional "acquiescence" in this practice through repeated reenactment of the controlling statutory language, id. at 143-144, 562 F.2d at 1220, the court held that interpretation of "bounty or grant" so as not to include a nonexcessive remission of an indirect tax is "a lawfully permissible interpretation of § 303." Id. at 147, 562 F.2d at 1223.We granted certiorari, 434 U.S. 1060 (1978), and we now affirm. Page 437 U. S. 450IIIt is undisputed that the Treasury Department adopted the statutory interpretation at issue here less than a year after passage of the basic countervailing duty statute in 1897, see T.D. 19321, 1 Synopsis of [Treasury] Decisions 696 (1898), and that the Department has uniformly maintained this position for over 80 years. [Footnote 10] This longstanding and consistent administrative interpretation is entitled to considerable weight."When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.""To sustain [an agency's] application of [a] statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings."Udall v. Tallman, 380 U. S. 1, 380 U. S. 16 (1965), quoting Unemployment Compensation Comm'n v. Aragon, 329 U. S. 143, 329 U. S. 153 (1946). Moreover, an administrative"practice has peculiar weight when it involves a contemporaneous construction of a statute by the [persons] charged with the responsibility of setting its machinery in motion, of making the parts work efficiently and smoothly while they are yet untried and new."Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 288 U. S. 315 (1933); see, e.g., Power Reactor Co. v. Electricians, 367 U. S. 396, 367 U. S. 408 (1961).The question is thus whether, in light of the normal aids to statutory construction, the Department's interpretation is "sufficiently reasonable" to be accepted by a reviewing court. Train v. Natural Resources Defense Council, 421 U. S. 60, Page 437 U. S. 451 421 U. S. 75 (1975). Our examination of the language, the legislative history, and the overall purpose of the 1897 provision persuades us that the Department's initial construction of the statute was far from unreasonable; and we are unable to find anything in the events subsequent to that time that convinces us that the Department was required to abandon this interpretationAThe language of the 1897 statute evolved out of two earlier countervailing duty provisions that had been applicable only to sugar imports. The first provision was enacted in 1890, apparently for the purpose of protecting domestic sugar refiners from unfair foreign competition; it provided for a fixed countervailing duty on refined sugar imported from countries that "pay, directly or indirectly, a [greater] bounty on the exportation of" refined sugar than on raw sugar. Tariff Act of 1890, 11237, 26 Stat. 584. Although the congressional debates did not focus sharply on the meaning of the word "bounty," what evidence there is suggests that the term was not intended to encompass the nonexcessive remission of an indirect tax. Thus, one strong supporter of increased protection for American sugar producers heavily criticized the export "bounties" conferred by several European governments, and attached a concise description of "The Bounty Systems in Europe"; both the remarks and the description indicated that the "bounties" consisted of the amounts by which government payments exceeded the excise taxes that had been paid upon the beets from which the sugar was produced. See 21 Cong.Rec. 9529, 9532 (1890) (remarks of Sen. Gibson); id. at 9537 (description). According to the description, for example, French sugar manufacturers paid an"excise tax [of] $97.06 per gross ton[,] [b]ut upon the export of a ton of sugar . . . , received back as a drawback $117.60, making a clear bounty of $20.54 per gross ton of sugar exported."Ibid. Page 437 U. S. 452This concept of a "net" bounty -- that is, a remission in excess of taxes paid or otherwise due -- as the trigger for a countervailing duty requirement emerged more clearly in the second sugar provision, enacted in 1894. Tariff Act of 1894, � 182 1/2, 28 Stat. 521. The 1894 statute extended the countervailing duty requirement to all imported sugar, raw as well as refined, and provided for payment of a fixed duty on all sugar coming from a country which "pays, directly or indirectly, a bounty on the export thereof." A proviso to the statute made clear, however, that no duties were to be assessed in the event that the "bounty" did not exceed the amount of taxes already paid. [Footnote 11] The author of the 1894 provision, Senator Jones, expressly characterized this difference between the amounts received upon exportation and the amounts already paid in taxes as the "net bounty" on exportation. 26 Cong.Rec. 5705 (1894) (discussing German export bounty system).The 1897 statute greatly expanded upon the coverage of the 1894 provision by making the countervailing duty requirement applicable to all imported products. Tariff Act of 1897, § 5, 30 Stat. 205, quoted in n 8, supra. There are strong indications, however, that Congress intended to retain the "net bounty" concept of the 1894 provision as the criterion for determining when a countervailing duty was to be imposed. Although the proviso in the 1894 law was deleted, the 1897 statute did provide for levying of duties equal to the "net amount" of any export bounty or grant. And the legislative Page 437 U. S. 453 history suggests that this language, in addition to establishing a responsive mechanism for determining the appropriate amount of countervailing duty, was intended to incorporate the prior rule that nonexcessive remission of indirect taxes would not trigger the countervailing duty requirement at all.There is no question that the prior rule was carried forward in the version of the 1897 statute that originally passed the House. This version did not extend the countervailing duty requirement to all imports. Instead, it merely modified the 1894 sugar provision so that the amount of the countervailing duty, rather than being fixed, would be"equal to [the export] bounty, or so much thereof as may be in excess of any tax collected by [the foreign] country upon [the] exported [sugar], or upon the beet or cane from which it was produced. . . ."See 30 Cong.Rec. 1634 (187). The House Report unequivocally stated that the countervailing duty was intended to be "equivalent to the net export bounty paid by any country." H.R.Rep. No. 1, 55th Cong., 1st Sess., 4-5 (1897) (emphasis supplied).The Senate deleted the House provision from the bill and replaced it with the more general provision that was eventually enacted into law. See 30 Cong.Rec. 1733 (1897) (striking House provision); id. at 2226 (adopting general provision); id. at 2705, 2750 (House agreement to Senate amendment). The debates in the Senate indicate, however, that -- aside from extending the coverage of the House provision -- the Senate did not intend to change its substance. Senator Allison, the sponsor of the Senate amendment, explained that the House provision was being "stricken from the bill," because "the same paragraph in substance [is] being inserted [in] section [5], making this countervailing duty apply to all articles instead of to [sugar] alone." Id. at 1635. See also id. at 1732 (remarks of Sen. White). Senator Allison twice remarked that the countervailing duty that he was proposing was an "imitation" of the one provided in the 1894 statute, Page 437 U. S. 454 id. at 1719; see id. at 1674, and later in the debates he stated -- in response to a question as to whether the countervailing duty would be equal to "the whole amount of the export bounty" -- that "[the bounty contemplated] is the net bounty less the taxes and reductions . . . ," id. at 1721 (answering question from Sen. Vest).An additional indication of the Senate's intent can be found in the extended discussion of the effect that the statute would have with respect to German sugar exports. Time after time, the amount of the German "bounty" -- and, correspondingly, the amount of the countervailing duty that would be imposed under the statute -- was stated to be 38c per 100 pounds of refined sugar, and 27c per 100 pounds of raw sugar. See, e.g.,id. at 1650 (remarks of Sens. Allison, Vest, and Caffery), 1658 (Sens. Allison and Jones), 1680 (Sen. Jones), 1719 (Sens. Allison and Lindsay), 1729 (Sen. Caffery), 2823-2824 (Sens. Aldrich and Jones). These figures were supplied by the Treasury Department itself, see id. at 1719 (remarks of Sen. Allison), 1722 (letter from Treasury Department to Sen. Caffery), and were utilized by both proponents and opponents of the measure. And yet it was frequently acknowledged during the debates that Germany exempted sugar exports from its domestic consumption tax of $2.16 per 100 pounds, an amount far in excess of the 38c and 27c figures. See, e.g., id. at 1646 (remarks of Sen. Vest), 1651 (Sen. Caffery), 1697 (same), 2205 (same). Had the Senators considered the mere remission of an indirect tax to be a "bounty," it seems unlikely that they would have stated that the German "bounties" were only 38 and 27c per 100 pounds. [Footnote 12] Especially in Page 437 U. S. 455 light of the strong opposition to countervailing duties even of the magnitude of 38c and 27c, see, e.g., id. at 1719 (remarks of Sen. Lindsay), 2203-2205 (remarks of Sen. Gray), it seems reasonable to infer that Congress did not intend to impose countervailing duties of many times this magnitude.BRegardless of whether this legislative history absolutely compelled the Secretary to interpret "bounty or grant" so as not to encompass any nonexcessive remission of an indirect tax, there can be no doubt that such a construction was reasonable in light of the statutory purpose. Cf. Mourning v. Family Publications Service, Inc., 411 U. S. 356, 411 U. S. 374 (1973). This purpose is relatively clear from the face of the statute, and is confirmed by the congressional debates: the countervailing Page 437 U. S. 456 duty was intended to offset the unfair competitive advantage that foreign producers would otherwise enjoy from export subsidies paid by their governments. See, e.g., 30 Cong Rec. 1674 (remarks of Sen. Allison), 2205 (Sen. Caffery), 2225 (Sen. Lindsay) (1897). The Treasury Department was well positioned to establish rules of decision that would accurately carry out this purpose, particularly since it had contributed the very figures relied upon by Congress in enacting the statute. See Zuber v. Allen, 396 U. S. 168, 396 U. S. 192 (1969).In deciding in 1898 that a nonexcessive remission of indirect taxes did not result in the type of competitive advantage that Congress intended to counteract, the Department was clearly acting in accordance with the shared assumptions of the day as to the fairness and economic effect of that practice. The theory underlying the Department's position was that a foreign country's remission of indirect taxes did not constitute subsidization of that country's exports. Rather, such remission was viewed as a reasonable measure for avoiding double taxation of exports -- once by the foreign country and once upon sale in this country. As explained in a recent study prepared by the Department for the Senate Committee on Finance:"[The Department's construction was] based on the principle that, since exports are not consumed in the country of production, they should not be subject to consumption taxes in that country. The theory has been that the application of countervailing duties to the rebate of consumption [and other indirect] taxes would have the effect of double taxation of the product, since the United States would not only impose its own indirect taxes, such as Federal and state excise taxes and state and local sales taxes, but would also collect, through the use of the countervailing duty, the indirect tax imposed by the Page 437 U. S. 457 exporting country on domestically consumed goods."Senate Committee on Finance, Executive Branch GATT Studies, 93d Cong., 2d Sess., 17-18 (1974). This intuitively appealing principle regarding double taxation had been widely accepted both in this country and abroad for many years prior to enactment of the 1897 statute. See, e.g., Act of July 4, 1789, § 3, 1 Stat. 26 (remission of import duties upon exportation of products); 4 Works and Correspondence of D. Ricardo 216-217 (pamphlets and papers first published in 1822); A. Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, Book Four, ch. IV (1776).CThe Secretary's interpretation of the countervailing duty statute is as permissible today as it was in 1898. The statute has been reenacted five times by Congress without any modification of the relevant language, see n 8, supra, and, whether or not Congress can be said to have "acquiesced" in the administrative practice, it certainly has not acted to change it. At the same time, the Secretary's position has been incorporated into the General Agreement on Tariffs and Trade (GATT), [Footnote 13] which is followed by every major trading nation in the world; foreign tax systems as well as private expectations thus have been built on the assumption that countervailing duties would not be imposed on nonexcessive remissions of indirect taxes. In light of these substantial reliance interests, the longstanding administrative construction of the statute should "not be Page 437 U. S. 458 disturbed except for cogent reasons." McLaren v. Flescher, 256 U. S. 477, 256 U. S. 481 (1921); see Udall v. Tallman, 380 U.S. at 380 U. S. 18.Aside from the contention, discussed in 437 U. S. infra that the Department's construction is inconsistent with this Court's decisions, petitioner's sole argument is that the Department's position is premised on false economic assumptions that should be rejected by the courts. In particular, petitioner points to "modern" economic theory suggesting that remission of indirect taxes may create an incentive to export in some circumstances, and to recent criticism of the GATT rules as favoring producers in countries that rely more heavily on indirect than on direct taxes. [Footnote 14] But, even assuming that these arguments are at all relevant in view of the legislative history of the 1897 provision and the longstanding administrative construction of the statute, they do not demonstrate the unreasonableness of the Secretary's current position. Even "modern" economists do not agree on the ultimate economic effect of remitting indirect taxes, and -- given the present state of economic knowledge -- it may be difficult, if not impossible, to measure the precise effect in any particular case. See, e.g., Executive Branch GATT Studies, supra at 13-14, 17; Marks & Malmgren, Negotiating Nontariff Distortions to Trade, 7 L. & Policy in Int'l Bus. 351 (1975). More fundamentally, as the Senate Committee with responsibility in this Page 437 U. S. 459 area recently stated,"the issues involved in applying the countervailing duty law are complex, and . . . internationally, there is [a] lack of any satisfactory agreement on what constitutes a fair, as opposed to an 'unfair,' subsidy."S.Rep. No. 93-1298, p. 183 (1974). In this situation, it is not the task of the judiciary to substitute its views as to fairness and economic effect for those of the Secretary.IIINotwithstanding all of the foregoing considerations, this would be a very different case if, as petitioner contends, the Secretary's practice were contrary to this Court's decision in Downs v. United States, 187 U. S. 496 (1903). [Footnote 15] Upon close examination of the admittedly opaque opinion in that case, however, we do not believe that Downs is controlling on the question presented here.The Russian sugar laws at issue in Downs were, as the Court noted, "very complicated." Id. at 187 U. S. 502. Much of the Court's opinion was devoted to an exposition of these provisions, see id. at 187 U. S. 502-512, but, for present purposes, only two features are relevant: (1) excise taxes imposed on sugar sales within Russia were remitted on exports; and (2) the exporter received, in addition, a certificate entitling its bearer to sell an amount of sugar in Russia, equal to the quantity exported, without paying the full excise tax otherwise due. This certificate was transferable, and had a substantial market value related to the amount of tax forgiveness that it carried with it. Page 437 U. S. 460The Secretary, following the same interpretation of the statute that he followed here, imposed a countervailing duty based on the value of the certificates alone, and not on the excise taxes remitted on the exports themselves. [Footnote 16] Downs, the importer, sought review, claiming that the Russian system did not confer any countervailable bounty or grant within the meaning of the 1897 statute. He did not otherwise challenge the amount of the duty assessed by the Secretary. [Footnote 17]The issue as it came before this Court, therefore, was whether a nonexcessive remission of an indirect tax, together with the granting of an additional benefit represented by the value of the certificate, constituted a "bounty or grant." Since the amount of the bounty was not in question, neither the parties nor this Court focused carefully on the distinction between remission of the excise tax and conferral of the certificate. Petitioner argues, however, that certain broad language in the Court's opinion suggests that mere remission of a tax, even if nonexcessive, must be considered a bounty or grant within the meaning of the statute. Petitioner relies in particular on the following language:"The details of this elaborate procedure for the production, sale, taxation and exportation of Russian sugar are of much less importance than the two facts which appear clearly through this maze of regulations, viz.: that no sugar is permitted to be sold in Russia that does not pay an excise tax of R. 1.75 per pood, and that sugar exported pays no tax at all. . . . When a tax is imposed Page 437 U. S. 461 upon all sugar produced, but is remitted upon all sugar exported, then, by whatever process, or in whatever manner, or under whatever name it is disguised, it is a bounty upon exportation."Id. at 187 U. S. 515.This passage is inconsistent with both preceding and subsequent language which suggests that the Court understood the "bounty" to reside in the value of the certificates. At one point, the Court stated that"[t]he amount [the exporter] receives for his export certificate [on the market], say, R. 1.25, is the exact amount of the bounty he receives upon exportation. . . ."Ibid. [Footnote 18] And the Court in conclusion specifically endorsed the Fourth Circuit's holding to the same effect, see n 17, supra:"[T]he Circuit Court of Appeals found: 'That the Russian exporter of sugar obtained from his government a certificate, solely because of such exportation, which is worth in the open market of that country from R. 1.25 to R. 1.64 per pood, or from 1.8 to 2.35 cents per pound. Therefore we hold that the government of Russia does secure to the exporter of that country, as the inevitable result of its action, a money reward or gratuity whenever he exports sugar from Russia.' We all concur in this expression of opinion."187 U.S. at 187 U. S. 516. Given this other language, we cannot read for its broadest implications the passage on which petitioner relies. In our view, the passage does no more than establish the propositionPage 437 U. S. 462 that an excessive remission of taxes -- there, the combination of the exemption with the certificates -- is an export bounty within the meaning of the statute.As the court below noted,"'[i]t is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used.'"64 C.C.P.A. at 134, 62 F.2d at 1213, quoting Cohens v. Virginia, 6 Wheat. 264, 19 U. S. 399 (1821). No one argued in Downs that a nonexcessive remission of taxes, standing alone, would have constituted a bounty on exportation, and indeed that issue was not presented on the facts of the case. It must also be remembered, of course, that the Court did affirm the Secretary's decision, and that decision rested on the conclusion that a bounty had been paid only to the extent that the remission exceeded the taxes otherwise due. In light of all these circumstances, the isolated statement in Downs relied upon by petitioner cannot be dispositive here.The judgment of the Court of Customs and Patent Appeals is, accordingly,Affirmed

U.S. Supreme CourtZenith Radio Corp. v. United States, 437 U.S. 443 (1978)Zenith Radio Corp. v. United StatesNo. 77-539Argued April 25, 1978Decided June 21, 1978437 U.S. 443SyllabusPetitioner, an American manufacturer of consumer electronic products, filed a petition with the Commissioner of Customs, requesting assessment under § 303 of the Tariff Act of 1930 of countervailing duties on various consumer electronic products exported from Japan to this country. Petitioner contended that the products benefited from bounties or grants paid or conferred by Japan because Japan imposes a commodity tax (an "indirect" tax) on those products when they are sold in that country, but "remits" the tax when the products are exported, any tax paid on the shipment of a product being refunded upon the subsequent exportation. Section 303 provides that, whenever a foreign country pays a "bounty or grant" upon the exportation of a product from that country, the Secretary of the Treasury (Secretary) must levy a countervailing duty "equal to the net amount of such bounty or grant" upon the importation of the product into the United States. After rejection of its request, petitioner filed suit in the Customs Court, claiming that the Treasury Department had erred in concluding that remission of the Japanese tax was not a bounty or grant within the purview of § 303. The Secretary contended that, since the remission of the tax was "nonexcessive" (i.e., not above the amount of the tax paid or otherwise due), § 303 did not require assessment of a countervailing duty. Relying on Downs v. United States, 187 U. S. 496, the Customs Court ruled in petitioner's favor. The Court of Customs and Patent Appeals reversed.Held: Japan does not confer a "bounty or grant" within the meaning of § 303 on the consumer electronic products by failing to impose a commodity tax on those products when they are exported to this country, while imposing the tax on the products when they are sold in Japan. Downs v. United States, supra, distinguished. Pp. 437 U. S. 450-462.(a) The Secretary's statutory interpretation that was followed in this case has been consistently maintained since the basic countervailing duty statute was enacted in 1897, and that administrative interpretation is entitled to great weight. See Udall v. Tallman, 380 U. S. 1, 380 U. S. 16. Pp. 437 U. S. 450-451.(b) The legislative history of the statute suggests that the term Page 437 U. S. 444 "bounty" was not intended to encompass the nonexcessive remission of an indirect tax. Pp. 437 U. S. 451-455.(c) The Secretary's interpretation was reasonable in light of the statutory purpose of the countervailing duty, viz., offsetting the unfair competitive advantage that foreign products would otherwise enjoy from export subsidies paid by their governments. In deciding in 1898 that a nonexcessive remission of indirect taxes did not give the exporter an unfair competitive advantage, the Secretary permissibly viewed the remission as a reasonable measure for avoiding double taxation of exports -- once by the foreign country and once upon sale in this country. Pp. 437 U. S. 455-457.(d) The Secretary's interpretation is as permissible today as it was in 1898. The statute has been reenacted five times with no modification of the relevant language, and the Secretary's position has been incorporated into an international agreement followed by every major trading nation in the world. It is not for the judiciary to substitute its views as to the fairness and economic effect of remitting indirect taxes. Pp. 437 U. S. 457-459.(e) Downs v. United States, supra, did not involve the issue of whether a nonexcessive remission of taxes, standing alone, would have constituted a bounty on exportation, and is not dispositive of this case. Pp. 437 U. S. 459-462.64 C.C.P.A. 130, 562 F.2d 1209, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 437 U. S. 445

1963_116

MR. JUSTICE STEWART delivered the opinion of the Court.The Twenty-first Amendment to the Constitution, which repealed the Eighteenth, provides in its second section that"The transportation or importation into any Page 377 U. S. 325 State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."This appeal requires consideration of the relationship of this provision of the Twenty-first Amendment to other provisions of the Constitution, particularly the Commerce Clause. [Footnote 1]The appellee (Idlewild) is engaged in the business of selling bottled wines and liquors to departing international airline travelers at the John F. Kennedy Airport in New York. Its place of business is leased from the Port of New York Authority for use solely as "an office in connection with the sale . . . of in-bond wines and liquors." Idlewild accepts orders only from travelers whose tickets and boarding cards indicate their imminent departure. A customer gets nothing but a receipt at the time he gives his order and makes payment. The liquor which he orders is transferred directly to the departing aircraft on documents approved by United States Customs, and is not delivered to the customer until he arrives at his foreign destination.The beverages sold by Idlewild are purchased by it from bonded wholesalers located outside New York State who deal in tax-free liquors for export. Merchandise ordered by Idlewild is withdrawn from bonded warehouses on approved Customs documents, copies of which are mailed by the wholesalers both to Idlewild and to the United States Customs Office at the airport. A third sealed copy of the document is given to the bonded trucker who delivers it to the Customs Office at the airport after he has transported the shipment to Idlewild's place of business. The contents of each shipment are recorded by Idlewild, as are withdrawals from inventory Page 377 U. S. 326 whenever a sale is made, and, when an entire shipment has been sold, these records are turned over to Customs officials. Idlewild's records and its physical inventory, as well as the transfer of the liquor from the bonded trucks to Idlewild's premises and from those premises to the departing aircraft, are at all times open to inspection by the Bureau of Customs. Before Idlewild commenced these business operations in 1960, the Bureau of Customs inspected its place of business and explicitly approved its proposed method of operations.Idlewild commenced doing business in the spring of 1960. A few weeks later, the New York State Liquor Authority, whose members are the appellants in this cast, informed Idlewild, upon the advice of the Attorney General of New York, that its business was illegal under the provisions of the New York Alcoholic Beverage Control Law because the business was unlicensed and unlicensable under that law. [Footnote 2] Idlewild thereupon brought the present Page 377 U. S. 327 action for an injunction restraining the appellants from interfering with its business, and for a judgment declaring that the provisions of the New York statute, as applied to its business, were repugnant to the Commerce Clause of the Constitution, and, under the Supremacy Clause, to the Tariff Act of 1930, under which the Bureau of Customs had approved Idlewild's business operations. [Footnote 3]After lengthy procedural delays, [Footnote 4] a three-judge District Court granted the requested relief. 212 F. Supp. 376. The court expressed doubt that the New York Alcoholic Beverage Control Law was intended to apply to a business such as that carried on by Idlewild, both because of the manifest irrelevance to such a business of many of the law's provisions [Footnote 5] and because the New York courts Page 377 U. S. 328 had held that the law was inapplicable to the sale of liquor in the Free Trade Zone of the Port of New York. During v. Valente, 267 App.Div. 383, 46 N.Y.S.2d 385. See also Rosenblum v. Frankel, 279 App.Div. 66, 108 N.Y.S.2d 6. In view of the posture of the litigation, the court declined, however, to defer deciding the merits of the controversy pending a construction of the statute by the New York courts, although recognizing that "a technical application of the doctrine of abstention" would under ordinary circumstances counsel such a course.On the merits, the court concluded, after reviewing the relevant cases, that the Commerce Clause rendered constitutionally impermissible New York's attempt wholly to terminate Idlewild's business operations. The court conceded that New York has broad power under the Twenty-first Amendment to supervise and regulate the transportation of liquor through its territory for the purpose of guarding against a diversion of such liquor into domestic channels, but pointed out that"the Liquor Authority has neither alleged nor proved the diversion of so much as one bottle of plaintiff's merchandise to users within the state of New York."212 F. Supp. at 386. We noted probable jurisdiction, Hostetter v. Idlewild B.V.L. Corp., 375 U.S. 809, and, for the reasons which follow, we affirm the judgment of the District Court.We hold first that the District Court did not err in declining to defer to the state courts before deciding this controversy on its merits. The doctrine of abstention is equitable in its origins, Railroad Comm'n of Texas v. Pullman Co., 312 U. S. 496, 312 U. S. 500-501, and this Court has held that, even Page 377 U. S. 329though constitutional issues be involved, "reference to state courts for construction of statute should not automatically be made." NAACP v. Bennett, 360 U. S. 471. Unlike many cases in which abstention has been held appropriate, there was here no danger that a federal decision would work a disruption of an entire legislative scheme of regulation. [Footnote 6] We therefore accept the District Court's decision that abstention was unwarranted here, where neither party requested it and where the litigation had already been long delayed, despite the plaintiff's efforts to expedite the proceedings. [Footnote 7]Turning, then, to the merits of this controversy, the basic issue we face is whether the Twenty-first Amendment so far obliterates the Commerce Clause as to empower New York to prohibit absolutely the passage of liquor through its territory, under the supervision of the United States Bureau of Customs acting under federal law, [Footnote 8] for delivery to consumers in foreign countries. For it is not disputed that, if the commodity involved here were not liquor, but grain or lumber, the Commerce Clause would clearly deprive New York of any such power. Lemke v. Farmers Grain Co., 258 U. S. 50; Texas & N.O. R. Co. v. Sabine Tram Co., 227 U. S. 111; Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229. Page 377 U. S. 330This Court made clear in the early years following adoption of the Twenty-first Amendment that, by virtue of its provisions, a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders. Thus, in upholding a State's power to impose a license fee upon importers of beer, the Court pointed out that,"[p]rior to the Twenty-First Amendment, it would obviously have been unconstitutional to have imposed any fee for that privilege. The imposition would have been void . . . because the fee would be a direct burden on interstate commerce; and the Commerce Clause confers the right to import merchandise free into any state, except as Congress may otherwise provide."State Board v. Young's Market Co., 299 U. S. 59, 299 U. S. 62. [Footnote 9] In the same vein, the Court upheld a Michigan statute prohibiting Michigan dealers from selling beer manufactured in a State which discriminated against Michigan beer. Indianapolis Brewing Co. v. Liquor Comm'n, 305 U. S. 391."Since the Twenty-first Amendment, . . . the right of a State to prohibit or regulate the importation of intoxicating liquor is not limited by the Commerce Clause. . . ."Id. at 305 U. S. 394. See also Finch & Co. v. McKittrick, 305 U. S. 395.This view of the scope of the Twenty-first Amendment with respect to a State's power to restrict, regulate, or prevent the traffic and distribution of intoxicants within its borders has remained unquestioned. See California v. Washington, 358 U. S. 64. Thus, in Ziffrin, Inc. v. Reeves, 308 U. S. 132, there was involved a Kentucky statute,"a long, comprehensive measure (123 sections) Page 377 U. S. 331 designed rigidly to regulate the production and distribution of alcoholic beverages through means of licenses and otherwise. The manifest purpose is to channelize the traffic, minimize the commonly attendant evils; also to facilitate the collection of revenue. To this end, manufacture, sale, transportation, and possession are permitted only under carefully prescribed conditions and subject to constant control by the state."Id. at 308 U. S. 134. The Court upheld a provision of that "comprehensive measure" which prohibited a domestic manufacturer of liquor from delivering his product to an unlicensed private carrier. The Court noted that"Kentucky has seen fit to permit manufacture of whiskey only upon condition that it be sold to an indicated class of customers and transported in definitely specified ways. These conditions are not unreasonable, and are clearly appropriate for effectuating the policy of limiting traffic in order to minimize well known evils, and secure payment of revenue. The statute declares whiskey removed from permitted channels contraband subject to immediate seizure. This is within the police power of the state, and property so circumstanced cannot be regarded as a proper article of commerce."Id. at 308 U. S. 139. [Footnote 10]To draw a conclusion from this line of decisions that the Twenty-first Amendment has somehow operated to Page 377 U. S. 332 "repeal" the Commerce Clause wherever regulation of intoxicating liquors is concerned would, however, be an absurd oversimplification. If the Commerce Clause had been pro tanto "repealed," then Congress would be left with no regulatory power over interstate or foreign commerce in intoxicating liquor. Such a conclusion would be patently bizarre, and is demonstrably incorrect. In Jameson & Co. v. Morgenthau, 307 U. S. 171,"the Federal Alcohol Administration Act was attacked upon the ground that the Twenty-first Amendment to the Federal Constitution gives to the States complete and exclusive control over commerce in intoxicating liquors, unlimited by the Commerce Clause, and hence that Congress has no longer authority to control the importation of these commodities into the United States."The Court's response to this theory was a blunt one: "We see no substance in this contention." Id. at 307 U. S. 172-173. See also United States v. Frankfort Distilleries, 324 U. S. 293. (Sherman Act.)Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.This principle is reflected in the Court's decision in Collins v. Yosemite Park Co., 304 U. S. 518. There, it was held that the Twenty-first Amendment did not give California power to prevent the shipment into and through her territory of liquor destined for distribution and consumption in a national park. The Court said that this traffic did not involve "transportation into California for delivery or use therein'" within the meaning of the Amendment. "The delivery and use is in the Park, and under a distinct sovereignty." Id. at 304 U. S. 538. This ruling was later characterized by the Court as holding Page 377 U. S. 333 "that shipment through a state is not transportation or importation into the state within the meaning of the Amendment." Carter v. Virginia, 321 U. S. 131, 321 U. S. 137. [Footnote 11] See also Johnson v. Yellow Cab Co., 321 U. S. 383, aff'g 137 F.2d 274.We may assume that i,f in Collins, California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing unlawful diversion into her territory, California would have been constitutionally permitted to do so. [Footnote 12] But the Court held that California could not prevent completely the transportation of the liquor across the State's territory for delivery and use in a federal enclave within it.A like accommodation of the Twenty-first Amendment with the Commerce Clause leads to a like conclusion in the present case. Here, ultimate delivery and use is not in New York, but in a foreign country. The State has not sought to regulate or control the passage of intoxicants through her territory in the interest of preventing their unlawful diversion into the internal commerce of the State. As the District Court emphasized, this case does not involve "measures aimed at preventing unlawful Page 377 U. S. 334 diversion or use of alcoholic beverages within New York." 212 F. Supp. at 386. Rather, the State has sought totally to prevent transactions carried on under the aegis of a law passed by Congress in the exercise of its explicit power under the Constitution to regulate commerce with foreign nations. This, New York cannot constitutionally do.Affirmed

U.S. Supreme CourtHostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964)Hostetter v. Idlewild Bon Voyage Liquor Corp.No. 116Argued March 23, 1964Decided June 1, 1964377 U.S. 324SyllabusAppellee, who, under Federal Bureau of Customs supervision, purchases bottled intoxicants at wholesale outside New York, brings them into the State, and, at an airport there, sells them at retail for delivery abroad to international airline travelers, brought this action for an injunction and declaratory judgment against State Liquor Authority members who claimed that appellee's business violated state law. After long procedural delays, a three-judge District Court granted the requested relief.Held:1. Abstention, which is not automatically required, and which had been requested by neither party, was not warranted in this protracted litigation, there being no danger that a federal decision would disrupt state regulation. Pp. 377 U. S. 328-329.2. Though the State has power under the Twenty-first Amendment to regulate transportation through its territory of intoxicants to avoid their diversion into domestic channels, the Commerce Clause deprives the State of power to prevent transactions supervised by the Bureau of Customs involving intoxicants for delivery to consumers in foreign countries. Pp. 377 U. S. 329-334.212 F. Supp. 376 affirmed.

1988_87-1327

JUSTICE STEVENS delivered the opinion of the Court.This case is a sequel to Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), in which we held that the Jicarilla Apache Tribe (Tribe) has the power to impose a severance tax on the production of oil and gas by non-Indian lessees of wells located on the Tribe's reservation. We must now decide whether the State of New Mexico can continue to impose its severance taxes on the same production of oil and gas.IAll 742,135 acres of the Jicarilla Apache Reservation are located in northwestern New Mexico. Id. at 455 U. S. 133. In 1887, President Cleveland issued an Executive Order setting aside this tract of public land "as a reservation for the use and occupation of the Jicarilla Apache Indians." 1 C. Kappler, Indian Affairs, Laws and Treaties 875 (1904). The only qualification contained in the order was a proviso protecting bona fide settlers from defeasance of previously acquired federal rights. [Footnote 1] Page 490 U. S. 167 Ibid. The land is still owned by the United States, and is held in trust for the Tribe.The Tribe, which consists of approximately 2,500 enrolled members, is organized under the Indian Reorganization Act. 48 Stat. 984, 25 U.S.C. § 461 et seq. The Indian Mineral Leasing Act of 1938 (1938 Act) grants the Tribe authority, subject to the approval of the Secretary of the Interior (Secretary), to execute mineral leases. 52 Stat. 347, 25 U.S.C. § 396a et seq. Since at least as early as 1953, the Tribe has been leasing reservation lands to nonmembers for the production of oil and gas. See Merrion, supra, at 455 U. S. 135. Mineral leases now encompass a substantial portion of the reservation, and constitute the primary source of the Tribe's general operating revenues. In 1969, the Secretary approved an amendment to the Tribe's Constitution authorizing it to enact ordinances, subject to his approval, imposing taxes on nonmembers doing business in the reservation. See Revised Constitution of the Jicarilla Apache Tribe, Art. XI, § 1(e) (Equity). The Tribe enacted such an ordinance in 1976, imposing a severance tax on "any oil and natural gas severed, saved and removed from Tribal lands." Oil and Gas Severance Tax, Ordinance No. 77-0-02, Jicarilla Apache Tribal Code (hereinafter J.A.T.C.), Tit. 11, ch. 1 (1987) (Equity); see also Merrion, supra, at 135-136. The Secretary approved the ordinance later that year, and in 1982 this Court upheld the Tribe's power to impose a severance tax on preexisting as well as future leases. See Merrion, supra. Subsequently, the Tribe enacted a privilege tax, which the Page 490 U. S. 168 Secretary also approved. See Oil and Gas Privilege Tax, Ordinance No. 85-0-434, J.A.T.C., Tit. 11, ch. 2 (1985). [Footnote 2]In 1976, Cotton Petroleum Corporation (Cotton), a non-Indian company in the business of extracting and marketing oil and gas, acquired five leases covering approximately 15,000 acres of the reservation. There were then 15 operating wells on the leased acreage, and Cotton has since drilled another 50 wells. The leases were issued by the Tribe and the United States under the authority of the 1938 Act. Pursuant to the terms of the leases, Cotton pays the Tribe a rent of $125 per acre, plus a royalty of 12 1/2 percent of the value of its production. [Footnote 3] In addition, Cotton pays the Tribe's oil and gas severance and privilege taxes, which amount to approximately 6 percent of the value of its production. Thus, Cotton's aggregate payment to the Tribe includes an acreage rent in excess of $1 million plus royalties and taxes amounting to about 18 1/2 percent of its production.Prior to 1982, Cotton paid, without objection, five different oil and gas production taxes to the State of New Mexico. [Footnote 4] The state taxes amount to about 8 percent of the value of Cotton's production. The same 8 percent is collected from producers throughout the State. Thus, on wells outside the Page 490 U. S. 169 reservation, the total tax burden is only 8 percent, while Cotton's reservation wells are taxed at a total rate of 14 percent (8 percent by the State and 6 percent by the Tribe). No state tax is imposed on the royalties received by the Tribe.At the end of our opinion in Merrion, 455 U.S. at 455 U. S. 158-159, n. 26, we added a footnote rejecting the taxpayer's argument that the tribal tax was invalid as a "multiple tax burden on interstate commerce" because imposed on the same activity already taxed by the State. One of the reasons the argument failed was that the taxpayer had made no attempt to show that the Tribe was "seek[ing] to seize more tax revenues than would be fairly related to the services provided by the Tribe." Ibid. After making that point, the footnote suggested that the state tax might be invalid under the Commerce Clause if in excess of what "the State's contact with the activity would justify." [Footnote 5] Ibid. (emphasis in original). Page 490 U. S. 170In 1982, Cotton paid its state taxes under protest and then brought an action in the District Court for Santa Fe County challenging the taxes under the Indian Commerce, Interstate Commerce, Due Process, and Supremacy Clauses of the Federal Constitution. App. 2-15. Relying on the Merrion footnote, Cotton contended that state taxes imposed on reservation activity are only valid if related to actual expenditures by the State in relation to the activity being taxed. Record 421. In support of this theory, Cotton presented evidence at trial tending to prove that the amount of tax it paid to the State far exceeded the value of services that the State provided to it, and that the taxes paid by all nonmember oil producers far exceeded the value of services provided to the reservation as a whole. [Footnote 6] Cotton did not, however, attempt to prove that the state taxes imposed any burden on the Tribe.After trial, the Tribe sought, and was granted, leave to file a brief amicus curiae. Id. at 128. The Tribe argued that a decision upholding the state taxes would substantially interfere with the Tribe's ability to raise its own tax rates, and would diminish the desirability of on-reservation oil and gas leases. Id. at 124. The Tribe expressed a particular concern about what it characterized as a failure of the State "to provide services commensurate with the taxes collected." Ibid. Page 490 U. S. 171After the Tribe filed its brief, the New Mexico District Court issued a decision upholding the state taxes. App. to Juris. Statement 14. The District Court found that "New Mexico provides substantial services to both the Jicarilla Tribe and Cotton," [Footnote 7] and concluded that the State had a valid interest in imposing taxes on non-Indians on the reservation. [Footnote 8] Squarely rejecting Cotton's theory of the case, the court stated that "[t]he theory of public finance does not require expenditures equal to revenues." Id. at 17. Turning to the question whether the state taxes were inconsistent with the federal interest in fostering the economic development of Indian tribes, the District Court found that the "economic and legal burden of paying the state taxes falls on Cotton or its buyers," and that "[n]o economic burden falls on the tribe by virtue of the state taxes." Id. at 15. More specifically, it found that the state taxes had not affected the Tribe's ability to collect its taxes or to impose a higher Page 490 U. S. 172 tax, and had "not in any way deterred production of oil and gas" on the reservation. Id. at 16-17. It concluded that the taxes had no adverse impact on tribal interests, and that they were not preempted by federal law. Id. at 17-18. Finally, the District Court held that the taxes were fully consistent with the Commerce and Due Process Clauses of the Federal Constitution. Ibid.The New Mexico Court of Appeals affirmed. 106 N.M. 517, 745 P.2d 1170 (1987). Like the District Court, it was left unpersuaded by Cotton's contention that the New Mexico taxes are invalid because the State's expenditures on reservation activity do not equal the revenues collected. The Court of Appeals correctly noted that the Merrion footnote, 455 U.S. at 455 U. S. 159, n. 26, "intimate[s] no opinion on the possibility of such a challenge," but simply suggests that a state tax "might" be invalid if greater than the State's "contact with the [on-reservation] activity would justify." 106 N.M. at 520, 745 P.2d at 1173. Finding no support for Cotton's position in Merrion, the Court of Appeals looked instead to our opinion in Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981), and concluded that a State's power to tax an activity connected to interstate commerce is not limited to the value of the services provided in support of that activity. 106 N.M. at 521, 745 P.2d at 1174. Agreeing with the trial court that the New Mexico taxes were fairly related to the services provided to Cotton, the Court of Appeals rejected Cotton's Commerce Clause challenge. Ibid.The Tribe, again participating as an amicus curiae, urged a different approach to the case. Unlike Cotton, the Tribe argued that the state taxes could not withstand traditional preemption analysis. The Tribe conceded that state laws, to the extent they do not interfere with tribal self-government, may control the conduct of non-Indians on the reservation. It maintained, however, that the taxes at issue interfered with its ability to raise taxes, and thus with its right to self-government. The Court of Appeals rejected Page 490 U. S. 173 this argument because the record contained no evidence of any adverse impact on the Tribe and, indeed, indicated that the Tribe could impose even higher taxes than it had without adverse effect. [Footnote 9]The New Mexico Supreme Court granted, but then quashed, a writ of certiorari. 106 N.M. 511, 745 P.2d 1159 (1987). We then noted probable jurisdiction and invited the parties to brief and argue the following additional question:"Does the Commerce Clause require that an Indian Tribe be treated as a State for purposes of determining whether a state tax on nontribal activities conducted on an Indian Reservation must be apportioned to account for taxes imposed on those same activities by the Indian Tribe?"485 U.S. 1005 (1988). We now affirm the judgment of the New Mexico Court of Appeals.IIThis Court's approach to the question whether a State may tax on-reservation oil production by non-Indian lessees has varied over the course of the past century. At one time, such a tax was held invalid unless expressly authorized by Congress; more recently, such taxes have been upheld unless expressly or impliedly prohibited by Congress. The changed approach to these taxes is one aspect of the evolution of the doctrine of intergovernmental tax immunity that we recently discussed in detail in South Carolina v. Baker, 485 U. S. 505 (1988).During the first third of this century, this Court frequently invalidated state taxes that arguably imposed an indirect economic Page 490 U. S. 174 burden on the Federal Government or its instrumentalities by application of the "intergovernmental immunity" doctrine. That doctrine"was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax 'on' the government because it burdened the government's power to enter into the contract."Id. at 485 U. S. 518. In a case decided in 1922, the Court applied the intergovernmental immunity doctrine to invalidate a state tax on income derived by a non-Indian lessee from the sale of his interest in oil produced on Indian land. See Gillespie v. Oklahoma, 257 U. S. 501. Consistently with the view of intergovernmental immunity that then prevailed, the Court stated that "a tax upon such profits is a direct hamper upon the effort of the United States to make the best terms that it can for its wards." Id. at 257 U. S. 506 (citing Weston v. Charleston, 2 Pet. 449, 27 U. S. 468 (1829)). The same reasoning was used to invalidate a variety of other state taxes imposed on non-Indian lessees at that time. [Footnote 10]Shortly after reaching its zenith in the Gillespie decision, the doctrine of intergovernmental tax immunity started a long path in decline, and has now been "thoroughly repudiated" by modern case law. South Carolina v. Baker, supra, at 485 U. S. 520. In 1932, four Members of this Court argued that Gillespie was unsound and should be overruled. See Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 385 U. S. 401 (Stone, J., dissenting); id. at 285 U. S. 405 (Brandeis, J., dissenting). Five years later, the Court took a substantial step in that direction, rejecting the view that a nondiscriminatory state tax on a Page 490 U. S. 175 private party contracting with the Government is invalid because the economic burden of the tax may fall on the Government. See James v. Dravo Contracting Co., 302 U. S. 134 (1937)."With the rationale for conferring a tax immunity on parties dealing with another government rejected, the government contract immunities recognized under prior doctrine were, one by one, eliminated."South Carolina v. Baker, supra, at 485 U. S. 522. Specifically, in Helvering v. Mountain Producers Corp., 303 U. S. 376, 303 U. S. 386-387 (1938), the Court squarely overruled Gillespie, supra. Thus, after Mountain Producers Corp., supra, was decided, oil and gas lessees operating on Indian reservations were subject to nondiscriminatory state taxation as long as Congress did not act affirmatively to preempt the state taxes. See ibid. See also Oklahoma Tax Comm'n v. Texas Co., 336 U. S. 342 (1949).In sum, it is well settled that, absent express congressional authorization, a State cannot tax the United States directly. See McCulloch v. Maryland, 4 Wheat. 316 (1819). It is also clear that the tax immunity of the United States is shared by the Indian tribes for whose benefit the United States holds reservation lands in trust. See Montana v. Blackfeet Tribe of Indians, 471 U. S. 759, 471 U. S. 764 (1985). Under current doctrine, however, a State can impose a nondiscriminatory tax on private parties with whom the United States or an Indian tribe does business, even though the financial burden of the tax may fall on the United States or tribe. See id. at 471 U. S. 765; South Carolina v. Baker, supra, at 485 U. S. 523. Although a lessee's oil production on Indian lands is therefore not "automatically exempt from state taxation," Congress does, of course, retain the power to grant such immunity. Mescalero Apache Tribe v. Jones, 411 U. S. 145, 411 U. S. 150 (1973). Whether such immunity shall be granted is thus a question that "is essentially legislative in character." Texas Co., supra, at 336 U. S. 365-366.The question for us to decide is whether Congress has acted to grant the Tribe such immunity, either expressly or Page 490 U. S. 176 by plain implication. [Footnote 11] In addition, we must consider Cotton's argument that the "multiple burden" imposed by the state and tribal taxes is unconstitutional.IIIAlthough determining whether federal legislation has preempted state taxation of lessees of Indian land is primarily an exercise in examining congressional intent, the history of tribal sovereignty serves as a necessary "backdrop" to that process. Cf. Rice v. Rehner, 463 U. S. 713, 463 U. S. 719 (1983) (quoting McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 172 (1973)). As a result, questions of preemption in this area are not resolved by reference to standards of preemption that have developed in other areas of the law, and are not controlled by "mechanical or absolute conceptions of state or tribal sovereignty." White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 448 U. S. 145 (1980). Instead, we have applied a flexible preemption analysis sensitive to the particular facts and legislation involved. Each case "requires a particularized examination of the relevant state, federal, and tribal interests." Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U. S. 832, 458 U. S. 838 (1982). Moreover, in examining the preemptive force of the relevant federal legislation, we are cognizant of both the broad policies that underlie the legislation and the history of tribal independence in the field at issue. See ibid. It bears emphasis that, although congressional silence no longer entails a broad-based immunity from taxation for private parties doing business with Indian tribes, federal preemption is not limited to cases in which Congress has expressly -- as compared to Page 490 U. S. 177 impliedly -- preempted the state activity. Finally we note that, although state interests must be given weight and courts should be careful not to make legislative decisions in the absence of congressional action, ambiguities in federal law are, as a rule, resolved in favor of tribal independence. See ibid.Against this background, Cotton argues that the New Mexico taxes are preempted by the "federal laws and policies which protect tribal self-government and strengthen impoverished reservation economies." Brief for Appellants 16. Most significantly, Cotton contends that the 1938 Act exhibits a strong federal interest in guaranteeing Indian tribes the maximum return on their oil and gas leases. Moreover, Cotton maintains that the Federal and Tribal Governments, acting pursuant to the 1938 Act, its accompanying regulations, and the Jicarilla Apache Tribal Code, exercise comprehensive regulatory control over Cotton's on-reservation activity. Cotton describes New Mexico's responsibilities, in contrast, as "significantly limited." Brief for Appellants 21. Thus, weighing the respective state, federal, and tribal interests, Cotton concludes that the New Mexico taxes unduly interfere with the federal interest in promoting tribal economic self-sufficiency, and are not justified by an adequate state interest. We disagree.The 1938 Act neither expressly permits state taxation nor expressly precludes it, but rather simply provides that"unallotted lands within any Indian reservation or lands owned by any tribe . . . may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council . . . for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities."25 U.S.C. § 396a. The Senate and House Reports that accompanied the Act, moreover -- even when considered in their broadest possible terms -- shed little light on congressional intent concerning state taxation of oil and gas produced on leased lands. See S.Rep. No. 985, 75th Cong., 1st Sess. (1937); H.R.Rep. No. 1872, 75th Cong., Page 490 U. S. 178 3d Sess. (1938). Both Reports reflect that the proposed legislation was suggested by the Secretary and considered by the appropriate committees, which recommended that it pass without amendment. Beyond this procedural summary, the Reports simply rely on the Secretary's letter of transmittal to describe the purpose of the Act. That letter provides that the legislation was intended, in light of the disarray of federal law in the area, "to obtain uniformity so far as practicable of the law relating to the leasing of tribal lands for mining purposes," and, in particular, was designed to "bring all mineral leasing matters in harmony with the Indian Reorganization Act." Id. at 1, 3; S.Rep. No. 985, supra, at 2, 3. In addition, the letter contains the following passage:"It is not believed that the present law is adequate to give the Indians the greatest return from their property. As stated, present law provides for locating and taking mineral leases in the same manner as mining locations are made on the public lands of the United States; but there are disadvantages in following this procedure on Indian lands that are not present in applying for a claim on the public domain. For instance, on the public domain, the discoverer of a mineral deposit gets extralateral rights, and can follow the ore beyond the side lines indefinitely, while on the Indian lands, under the act of June 30, 1919, he is limited to the confines of the survey markers not to exceed 600 feet by 1,500 feet in any one claim. The draft of the bill herewith would permit the obtaining of sufficient acreage to remove the necessity for extralateral rights with all of its attending controversies."Id. at 2; H.R.Rep. No. 1872, supra, at 2 (emphasis added).Relying on the first sentence in this paragraph, Cotton argues that the 1938 Act embodies a broad congressional policy of maximizing revenues for Indian tribes. Cotton finds support for this proposition in Montana v. Blackfeet Tribe, 471 U. S. 759 (1985). That case raised the question Page 490 U. S. 179 whether the 1938 Act authorizes state taxation of a tribe's royalty interests under oil and gas leases issued to nonmembers. Applying the settled rule that a tribe may only be directly taxed by a State if "Congress has made its intention to [lift the tribe's exemption] unmistakably clear," id. at 765, we concluded that "the State may not tax Indian royalty income from leases issued pursuant to the 1938 Act," id. at 768. In a footnote, we added the observation that direct state taxation of Indian revenues would frustrate the 1938 Act's purpose of "ensur[ing] that Indians receive the greatest return from their property,' [S.Rep. No. 985, supra, at] 2; H.R.Rep. No. 1872, supra, at 2." Id. at 767, n. 5.To the extent Cotton seeks to give the Secretary's reference to "the greatest return from their property" talismanic effect, arguing that these words demonstrate that Congress intended to guarantee Indian tribes the maximum profit available without regard to competing state interests, it overstates its case. There is nothing remarkable in the proposition that, in authorizing mineral leases, Congress sought to provide Indian tribes with a profitable source of revenue. It is, however, quite remarkable, indeed unfathomable in our view, to suggest that Congress intended to remove all state imposed obstacles to profitability by attaching to the Senate and House Reports a letter from the Secretary that happened to include the phrase "the greatest return from their property." Read in the broadest terms possible, the relevant paragraph suggests that Congress sought to remove "disadvantages in [leasing mineral rights] on Indian lands that are not present in applying for a claim on the public domain." S.Rep. No. 985, supra, at 2; H.R.Rep. No. 1872, supra, at 2. By 1938, however, it was established that oil and gas lessees of public lands were subject to state taxation. See Mid-Northern Oil. Co. v. Walker, 268 U. S. 45 (1925). It is thus apparent that Congress was not concerned with state taxation, but with matters such as the unavailability of extralateral mineral rights on Indian land. Nor do we Page 490 U. S. 180 read the Blackfeet footnote, 471 U.S. at 471 U. S. 767, n. 5, to give the Secretary's words greater effect. We think it clear that the footnote simply stands for the proposition that the Act's purpose of creating a source of revenue for Indian tribes provides evidence that Congress did not intend to authorize direct state taxation of Indian royalties.We thus agree that a purpose of the 1938 Act is to provide Indian tribes with badly needed revenue, but find no evidence for the further supposition that Congress intended to remove all barriers to profit maximization. The Secretary's letter of transmittal, even when read permissively for broad policy goals and even when read to resolve ambiguities in favor of tribal independence, supports no more.Our review of the legislation that preceded the 1938 Act provides no additional support for Cotton's expansive view of the Act's purpose. This history is relevant in that it supplies both the legislative background against which Congress enacted the 1938 Act and the relevant "backdrop" of tribal independence. Congress first authorized mineral leasing on Indian lands in 1891. See Act of Feb. 28, 1891, § 3, 26 Stat. 795, 25 U.S.C. § 397 (1891 Act). That legislation, which empowered tribes to enter into grazing and mining leases, only applied to lands "occupied by Indians who have bought and paid for the same," and was thus interpreted to be inapplicable to Executive Order reservations. See British-American Oil Producing Co. v. Board of Equalization of Montana, 299 U. S. 159, 299 U. S. 161-162, 299 U. S. 164 (1936). Mineral leasing on reservations created by Executive Order -- like the Jicarilla Apache Reservation -- was not authorized until almost four decades later. After years of debate concerning whether Indians had any right to share in royalties derived from oil and gas leases in Executive Order reservations, [Footnote 12] Page 490 U. S. 181 Congress finally enacted legislation in 1927 that authorized such leases. See Indian Oil Act of 1927, 44 Stat. (part 2) 1347, 25 U.S.C. § 398a (1927 Act).While both the 1891 and 1927 Acts were in effect, Gillespie was the prevailing law and, under its expansive view of intergovernmental tax immunity, States were powerless to impose severance taxes on oil produced on Indian reservations unless Congress expressly waived that immunity. Just two years after Gillespie was decided, Congress took such express action and authorized state taxation of oil and gas production in treaty reservations. See Indian Oil Leasing Act of 1924, 43 Stat. 244 (1924 Act), current version at 25 U.S.C. § 398. See also British-American Oil Producing Co. v. Board of Equalization, supra (applying 1924 Act to uphold state tax imposed on the production of oil and gas in Page 490 U. S. 182 the Blackfeet Indian Reservation). More significantly for purposes of this case, when Congress first authorized oil and gas leasing on Executive Order reservations in the 1927 Act, it expressly waived immunity from state taxation of oil and gas lessees operating in those reservations. See 44 Stat. (part 2) 1347, 25 U.S.C. § 398c. Thus, at least as to Executive Order reservations, state taxation of nonmember oil and gas lessees was the norm from the very start. There is, accordingly, simply no history of tribal independence from state taxation of these lessees to form a "backdrop" against which the 1938 Act must be read.We are also unconvinced that the contrast between the 1927 Act's express waiver of immunity and the 1938 Act's silence on the subject suggests that Congress intended to repeal the waiver in the 1938 Act, and thus to diametrically change course by implicitly barring state taxation. The general repealer clause contained in the 1938 Act provides that "[a]ll Act[s] or parts of Acts inconsistent herewith are hereby repealed." 52 Stat. 348. Although one might infer from this clause that all preceding, nonconflicting legislation in the area, like the 1927 Act's waiver provision, is implicitly incorporated, we need not go so far to simply conclude that the 1938 Act's omission demonstrates no congressional purpose to close the door to state taxation. Moreover, the contrast between the 1927 and 1938 Acts is easily explained by the contemporaneous history of the doctrine of intergovernmental tax immunity. In 1927, Gillespie prevailed, and States were only permitted to tax lessees of Indian lands if Congress expressly so provided. By the time the 1938 Act was enacted, however, Gillespie had been overruled and replaced by the modern rule permitting such taxes absent congressional disapproval. [Footnote 13] Thus, Congress' approaches to both the Page 490 U. S. 183 1927 and 1938 Acts were fully consistent with an intent to permit state taxation of nonmember lessees. [Footnote 14]Cotton nonetheless maintains that our decisions in White Mountain Apache Tribe v. Bracker, 448 U. S. 136 (1980), and Ramah Navajo School Bd Inc. v. Bureau of Revenue of Page 490 U. S. 184 New Mexico, 458 U. S. 832 (1982), compel the conclusion that the New Mexico taxes are preempted by federal law. In pressing this argument, Cotton ignores the admonition included in both of those decisions that the relevant preemption test is a flexible one sensitive to the particular state, federal, and tribal interests involved. See id. at 458 U. S. 838; Bracker, supra, at 448 U. S. 145.In Bracker, we addressed the question whether Arizona could impose its motor carrier license and use fuel taxes on a nonmember logging company's use of roads located solely within an Indian reservation. Significantly, the roads at issue were "built, maintained, and policed exclusively by the Federal Government, the Tribe, and its contractors," 448 U.S. at 448 U. S. 150, and the State was"unable to identify any regulatory function or service [it] performed . . . that would justify the assessment of taxes for activities on Bureau and tribal roads within the reservation,"id. at 448 U. S. 148-149. See also id. at 448 U. S. 174 (Powell, J., concurring) ("The State has no interest in raising revenues from the use of Indian roads that cost it nothing and over which it exercises no control"). Moreover, it was undisputed in Bracker that the economic burden of the taxes ultimately fell on the Tribe. Id. at 448 U. S. 151. Based on these facts and on our conclusion that collection of the taxes would undermine federal policy "in a context in which the Federal Government has undertaken to regulate the most minute details" of the Tribe's timber operations, we held that the taxes were preempted. Id. at 448 U. S. 149.Ramah Navajo School Bd. involved a similar factual scenario. In the late 1960's, New Mexico closed the only public high school that served the Ramah Navajo children. The State then sought to tax two nonmember construction firms hired by the Tribe to build a school in the reservation. As in Bracker, the State asserted no legitimate regulatory interest that might justify the tax. Ramah Navajo School Bd., supra, at 843-846. Also as in Bracker, the economic burden of the tax ultimately fell on the Tribe. And finally, again Page 490 U. S. 185 as in Bracker, we noted that federal law imposed a comprehensive regulatory scheme. Ramah Navajo School Bd., 458 U.S. at 458 U. S. 839-842. We concluded:"Having declined to take any responsibility for the education of these Indian children, the State is precluded from imposing an additional burden on the comprehensive federal scheme intended to provide this education -- a scheme which has 'left the State with no duties or responsibilities.'"Id. at 458 U. S. 843 (quoting Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685, 380 U. S. 691 (1965)).The factual findings of the New Mexico District Court clearly distinguish this case from both Bracker, supra, and Ramah Navajo School Bd., supra. After conducting a trial, that court found that "New Mexico provides substantial services to both the Jicarilla Tribe and Cotton," costing the State approximately $3 million per year. App. to Juris. Statement 16. Indeed, Cotton concedes that, from 1981 through 1985, New Mexico provided its operations with services costing $89,384, but argues that the cost of these services is disproportionate to the $2,293,953 in taxes the State collected from Cotton. Brief for Appellants 13-14. Neither Bracker, nor Ramah Navajo School Bd., however, imposes such a proportionality requirement on the States. [Footnote 15] Rather, both cases involved complete abdication or noninvolvement of the State in the on-reservation activity. The present case is also unlike Bracker and Ramah Navajo School Bd. in that the District Court found that "[n]o economic burden falls on the tribe by virtue of the state taxes," App. to Juris. Statement 15, and that the Tribe could, in fact, increase its taxes without adversely affecting on-reservation oil and gas development, id. at 17. Finally, the District Court found that the Page 490 U. S. 186 State regulates the spacing and mechanical integrity of wells located on the reservation. Id. at 16. Thus, although the federal and tribal regulations in this case are extensive, [Footnote 16] they are not exclusive, as were the regulations in Bracker and Ramah Navajo School Bd.We thus conclude that federal law, even when given the most generous construction, does not preempt New Mexico's oil and gas severance taxes. This is not a case in which the State has had nothing to do with the on-reservation activity save tax it. Nor is this a case in which an unusually large state tax has imposed a substantial burden on the Tribe. [Footnote 17] It is, of course, reasonable to infer that the New Page 490 U. S. 187 Mexico taxes have at least a marginal effect on the demand for on-reservation leases, the value to the Tribe of those leases, and the ability of the Tribe to increase its tax rate. Any impairment to the federal policy favoring the exploitation of on-reservation oil and gas resources by Indian tribes that might be caused by these effects, however, is simply too indirect and too insubstantial to support Cotton's claim of preemption. To find preemption of state taxation in such indirect burdens on this broad congressional purpose, absent some special factor such as those present in Bracker and Ramah Navajo School Bd., would be to return to the pre-1937 doctrine of intergovernmental tax immunity. [Footnote 18] Any adverse effect on the Tribe's finances caused by the taxation of a private party contracting with the Tribe would be ground to strike the state tax. Absent more explicit guidance from Congress, we decline to return to this long-discarded and thoroughly repudiated doctrine.IVCotton also argues that New Mexico's severance taxes -- "insofar as they are imposed without allocation or apportionment on top of Jicarilla Apache tribal taxes" -- impose "an unlawful Page 490 U. S. 188 multiple tax burden on interstate commerce." Brief for Appellants 33. In support of this argument, Cotton relies on three facts: (1) that the State and the Tribe tax the same activity; (2) that the total tax burden on Cotton is higher than the burden on its off-reservation competitors who pay no tribal tax; and (3) that the state taxes generate revenues that far exceed the value of the services it provides on the reservation.As we pointed out in the Merrion footnote, see n. 5, supra, a multiple taxation issue may arise when more than one State attempts to tax the same activity. If a unitary business derives income from several States, each State may only tax the portion of that income that is attributable to activity within its borders. [Footnote 19] See, e.g., Exxon Corp. v. Wisconsin Department of Revenue, 447 U. S. 207 (1980). Thus, in such a case, an apportionment formula is necessary in order to identify the scope of the taxpayer's business that is within the taxing jurisdiction of each State. In this case, however, all of Cotton's leases are located entirely within the borders of the State of New Mexico and also within the borders of the Jicarilla Apache Reservation. Indeed, they are also within the borders of the United States. There are, therefore, three different governmental entities, each of which has taxing jurisdiction over all of the non-Indian wells. Cf. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980) (Indian Tribe did not oust State of power to impose cigarette tax on on-reservation sales to non-Indian customers by imposing its own tax on transaction). Page 490 U. S. 189 The federal sovereign has the undoubted power to prohibit taxation of the Tribe's lessees by the Tribe, by the State, or by both, but, since it has not exercised that power, concurrent taxing jurisdiction over all of Cotton's on-reservation leases exists. Cf. Commonwealth Edison Co. v. Montana, 453 U.S. at 453 U. S. 617 (noting that, because the taxed activity took place exclusively within Montana -- although much of it on federal lands within the State -- no nexus or apportionment problem existed). Unless and until Congress provides otherwise, each of the other two sovereigns has taxing jurisdiction over all of Cotton's leases.It is, of course, true that the total taxes paid by Cotton are higher than those paid by off-reservation producers. But neither the State nor the Tribe imposes a discriminatory tax. The burdensome consequence is entirely attributable to the fact that the leases are located in an area where two governmental entities share jurisdiction. As we noted in Merrion, the tribal tax does "not treat minerals transported away from the reservation differently than it treats minerals that might be sold on the reservation." 455 U.S. at 455 U. S. 157-158. Similarly, the New Mexico taxes are administered in an evenhanded manner, and are imposed at a uniform rate throughout the State -- both on and off the reservation. See 106 N.M. at 521, 745 P.2d at 1174.Cotton's most persuasive argument is based on the evidence that tax payments by reservation lessees far exceed the value of services provided by the State to the lessees, or, more generally, to the reservation as a whole. See n 6, supra. There are, however, two sufficient reasons for rejecting this argument. First, the relevant services provided by the State include those that are available to the lessees and the members of the Tribe, off the reservation as well as on it. The intangible value of citizenship in an organized society is not easily measured in dollars and cents; moreover, the District Court found that the actual per capita state expenditures for Jicarilla members are equal to or greater than Page 490 U. S. 190 the per capita expenditures for non-Indian citizens. See App. to Juris. Statement 16. Second, there is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer -- or by those living in the community where the taxpayer is located -- must equal the amount of its tax obligations. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 480 U. S. 491, n. 21 (1987). As we recently explained:"[T]here is no requirement under the Due Process Clause that the amount of general revenue taxes collected from a particular activity must be reasonably related to the value of the services provided to the activity. Instead, our consistent rule has been:""Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure and who are not responsible for the condition to be remedied."" A tax is not an assessment of benefits. It is, as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve abandonment of the most fundamental principle of government -- that it exists primarily to provide for the common good.""Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 301 U. S. 521-523 (1937) (citations and footnote omitted).""* * * *" "There is no reason to suppose that this latitude afforded the States under the Due Process Clause is somehow divested by the Commerce Clause merely because the taxed activity has some connection to interstate commerce; Page 490 U. S. 191 particularly when the tax is levied on an activity conducted within the State."Commonwealth Edison Co., supra, at 453 U.S. 622-623.Cotton, in effect, asks us to divest New Mexico of its normal latitude because its taxes have "some connection" to commerce with the Tribe. The connection, however, is by no means close enough. There is simply no evidence in the record that the tax has had an adverse effect on the Tribe's ability to attract oil and gas lessees. It is, of course, reasonable to infer that the existence of the state tax imposes some limit on the profitability of Indian oil and gas leases -- just as it no doubt imposes a limit on the profitability of off-reservation leasing arrangements -- but that is precisely the same indirect burden that we rejected as a basis for granting non-Indian contractors an immunity from state taxation in Helvering v. Mountain Producers Corp., 303 U. S. 376 (1938); Oklahoma Tax Comm'n v. United States, 319 U. S. 598 (1943); Oklahoma Tax Comm'n v. Texas Co., 336 U. S. 342 (1949); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463 (1976); and Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980).VIn our order noting probable jurisdiction we invited the parties to address the question whether the Tribe should be treated as a State for the purpose of determining whether New Mexico's taxes must be apportioned. All of the Indian tribes that have filed amicus curiae briefs addressing this question -- including the Jicarilla Apache Tribe -- have uniformly taken the position that Indian tribes are not States within the meaning of the Commerce Clause. This position is supported by the text of the Clause itself. Article I, § 8, cl. 3, provides the "Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Thus, the Commerce Clause draws a clear distinction between "States" and "Indian Page 490 U. S. 192 Tribes." As Chief Justice Marshall observed in Cherokee Nation v. Georgia, 5 Pet. 1, 30 U. S. 18 (1831):"The objects to which the power of regulating commerce might be directed are divided into three distinct classes -- foreign nations, the several states, and Indian Tribes. When forming this article, the convention considered them as entirely distinct."In fact, the language of the Clause no more admits of treating Indian tribes as States than of treating foreign nations as States. See ibid.It is also well established that the Interstate Commerce and Indian Commerce Clauses have very different applications. In particular, while the Interstate Commerce Clause is concerned with maintaining free trade among the States even in the absence of implementing federal legislation, see McLeod v. J. E. Dilworth Co., 322 U. S. 327, 322 U. S. 330 (1944); Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs, see Morton v. Mancari, 417 U. S. 535, 417 U. S. 551-552 (1974); F. Cohen, Handbook of Federal Indian Law 207-208, and nn. 2, 3 and 9-11 (1982). The extensive case law that has developed under the Interstate Commerce Clause, moreover, is premised on a structural understanding of the unique role of the States in our constitutional system that is not readily imported to cases involving the Indian Commerce Clause. Most notably, as our discussion of Cotton's "multiple taxation" argument demonstrates, the fact that States and tribes have concurrent jurisdiction over the same territory makes it inappropriate to apply Commerce Clause doctrine developed in the context of commerce "among" States with mutually exclusive territorial jurisdiction to trade "with" Indian tribes.Accordingly, we have no occasion to modify our comment on this question in the Bracker case:"Tribal reservations are not States, and the differences in the form and nature of their sovereignty make it Page 490 U. S. 193 treacherous to import to one notions of preemption that are properly applied to the other."448 U.S. at 448 U. S. 143.The judgment of the New Mexico Court of Appeals isAffirmed

U.S. Supreme CourtCotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989)Cotton Petroleum Corp. v. New MexicoNo. 87-1327Argued November 30, 1988Decided April 25, 1989490 U.S. 163SyllabusPursuant to authority granted by the Indian Mineral Leasing Act of 1938 (1938 Act), the Jicarilla Apache Tribe (Tribe) leased lands on its New Mexico reservation to appellant Cotton Petroleum Corp. (Cotton), a non-Indian company, for the production of oil and gas. Cotton's on-reservation production is subject to both a 6% tribal severance tax and appellee State's 8% severance taxes, which apply to all producers throughout the State. In 1982, Cotton paid its state taxes under protest, and then brought an action in state court under, inter alia, the Commerce Clause of the Federal Constitution, contending that the state taxes were invalid on the basis of evidence tending to prove that the amount of such taxes imposed on reservation activity far exceeded the value of services the State provided in relation to such activity. The Tribe filed a brief amicus curiae arguing that a decision upholding the state taxes would substantially interfere with the Tribe's ability to raise its own tax rates and would diminish the desirability of on-reservation leases. The trial court upheld the state taxes, concluding, among other things, that the State provides substantial services to both the Tribe and Cotton, that the theory of public finance does not require that expenditures equal revenues, that the taxes' economic and legal burden falls on Cotton and has no adverse impact on tribal interests, and that the taxes are not preempted by federal law. The State Court of Appeals affirmed. This Court noted probable jurisdiction and invited the parties to brief and argue the additional question whether the Commerce Clause requires a tribe to be treated as a "State" for purposes of determining whether a state tax on nontribal activities conducted on a reservation must be apportioned to account for taxes the tribe imposed on the same activity.Held: The State may validly impose severance taxes on the same on-reservation production of oil and gas by non-Indian lessees as is subject to the Tribe's own severance tax. Pp. 490 U. S. 173-193.(a) Under this Court's modern decisions, on-reservation oil and gas production by non-Indian lessees is subject to nondiscriminatory state taxation unless Congress has expressly or impliedly acted to preempt the state taxes. See, e.g., Helvering v. Mountain Producers Corp., 303 U. S. 376, 303 U. S. 386-387. Pp. 490 U. S. 173-176. Page 490 U. S. 164(b) The state taxes in question are not preempted by federal law, even when it is given the most generous construction under the relevant preemption test, which is flexible and sensitive to the particular facts and legislation involved and requires a particularized examination of the relevant state, federal, and tribal interests, including tribal sovereignty and independence. The 1938 Act neither expressly permits nor precludes state taxation, but simply authorizes the leasing for mining purposes of Indian lands. Moreover, that Act's legislative history sheds little light on congressional intent. The statement therein that preexisting law was inadequate to give Indians the greatest return for their property does not embody a broad congressional policy of maximizing tribes' revenues without regard to competing state interests, but simply suggests that Congress sought to remove disadvantages in mineral leasing on Indian lands that were not present with respect to public lands, which were, at the time, subject to state taxation. Montana v. Blackfeet Tribe, 471 U. S. 759, 471 U. S. 767, n. 5, distinguished. The fact that the 1938 Act's statutory predecessor expressly waived immunity from state taxation of oil and gas lessees on reservations demonstrates that there is no history of tribal independence from such taxation, while the 1938 Act's omission of that waiver simply reflects congressional recognition that this Court's intervening decisions had repudiated the preexisting doctrine of intergovernmental tax immunity, under which such state taxation was barred absent express congressional authorization. White Mountain Apache Tribe v. Bracker, 448 U. S. 136, and Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U. S. 832, are distinguished on the ground that, here, the State provides substantial services to the Tribe and Cotton that justify the tax; the tax imposes no economic burden on the Tribe; and federal and tribal regulation is not exclusive, since the State regulates the spacing and mechanical integrity of on-reservation wells. Pp. 490 U. S. 176-187.(c) There is no merit to Cotton's contention that the State's severance taxes -- insofar as they are imposed without allocation or apportionment on top of tribal taxes -- impose an unlawful multiple tax burden on interstate commerce. The fact that the State and Tribe tax the same activity is not dispositive, since each of those entities has taxing jurisdiction over the non-Indian wells by virtue of the location of Cotton's leases entirely on reservation lands within a single State. That the total tax burden on Cotton is greater than the burden on off-reservation producers is also not determinative, since neither taxing jurisdiction's tax is discriminatory, and the burdensome consequence is entirely attributable to the fact of concurrent jurisdiction. The argument that the state taxes generate revenues that far exceed the value of the State's on-reservation services Page 490 U. S. 165 is also rejected. Moreover, there is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer -- or by those living in the taxpayer's community -- must equal the amount of its tax obligations. Pp. 490 U. S. 187-191.(d) The express language, distinct applications, and judicial interpretation of the Interstate Commerce and Indian Commerce Clauses establish that Indian tribes may not be treated as "States" for tax apportionment purposes. Pp. 490 U. S. 191-193.106 N.M. 517, 745 P.2d 1170, affirmed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 490 U. S. 193. Page 490 U. S. 166

2001_01-147

JUSTICE STEVENS delivered the opinion of the Court.The Securities and Exchange Commission (SEC) filed a civil complaint alleging that a stockbroker violated both § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U. S. C. § 78j(b), and the SEC's Rule 10b-5, by selling his customer's securities and using the proceeds for his own benefit without the customer's knowledge or consent. The question presented is whether the alleged fraudulent conduct was "in connection with the purchase or sale of any security" within the meaning of the statute and the Rule.IBetween 1987 and 1991, respondent was employed as a securities broker in the Maryland branch of a New York brokerage firm. In 1987, he persuaded William Wood, an elderly man in poor health, to open a joint investment account for himself and his mentally retarded daughter. According to the SEC's complaint, the "stated investment objectives for the account were 'safety of principal and income.'" App. to Pet. for Cert. 27a. The Woods granted respondent discretion to manage their account and a general power of attorney to engage in securities transactions for their benefit without prior approval. Relying on respondent's promise to "conservatively invest" their money, the Woods entrusted him with $419,255. Before Mr. Wood's death in 1991, all of that money was gone.In 1991, the National Association of Securities Dealers (NASD) conducted a routine examination of respondent's firm and discovered that on over 25 separate occasions, money had been transferred from the Woods' account to accounts controlled by respondent. In due course, respondent was indicted in the United States District Court for the District of Maryland on 13 counts of wire fraud in violation of 18 U. S. C. § 1343. App. to Pet. for Cert. 40a. The first count alleged that respondent sold securities in the Woods' account and then made personal use of the proceeds. Id., at81642a. Each of the other counts alleged that he made wire transfers between Maryland and New York that enabled him to withdraw specified sums from the Woods' accounts. Id., at 42a-50a. Some of those transfers involved respondent writing checks to himself from a mutual fund account held by the Woods, which required liquidating securities in order to redeem the checks. Respondent was convicted on all counts, sentenced to prison for 52 months, and ordered to pay $10,800 in restitution.After respondent was indicted, the SEC filed a civil complaint in the same District Court alleging that respondent violated § 10(b) and Rule 10b-5 by engaging in a scheme to defraud the Woods and by misappropriating approximately $343,000 of the Woods' securities without their knowledge or consent. Id., at 27a. The SEC moved for partial summary judgment after respondent's criminal conviction, arguing that the judgment in the criminal case estopped respondent from contesting facts that established a violation of § 10(b).1 Respondent filed a motion seeking discovery on the question whether his fraud had the requisite "connection with" the purchase or sale of a security. The District Court refused to allow discovery and entered summary judgment against respondent. It enjoined him from engaging in future violations of the securities laws and ordered him to disgorge $343,000 in ill-gotten gains.The Court of Appeals for the Fourth Circuit reversed the summary judgment and remanded with directions for the District Court to dismiss the complaint. 238 F.3d 5591 The scope of Rule lOb-5 is coextensive with the coverage of § 10(b), see United States v. O'Hagan, 521 U. S. 642, 651 (1997); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 214 (1976); therefore, we use § lO(b) to refer to both the statutory provision and the Rule.The complaint also contained allegations that respondent had engaged in excessive trading, or "churning," to generate commission income. App. to Pet. for Cert. 30a. That claim was originally excluded from the summary judgment motion, and later abandoned by the SEC.817(2001). It first held that the wire fraud conviction, which only required two findings-(l) that respondent engaged in a scheme to defraud and (2) that he used interstate wire communications in executing the scheme-did not establish all the elements of a § 10(b) violation. Specifically, the conviction did not necessarily establish that his fraud was "in connection with" the sale of a security. Id., at 562.2 The court then held that the civil complaint did not sufficiently allege the necessary connection because the sales of the Woods' securities were merely incidental to a fraud that "lay in absconding with the proceeds" of sales that were conducted in "a routine and customary fashion," id., at 564. Respondent's "scheme was simply to steal the Woods' assets" rather than to engage "in manipulation of a particular secu-2 A summary of the evidence in the Court of Appeals' opinion affirming the judgment in respondent's criminal case supports the conclusion that the verdict did not necessarily determine that the fraud was connected with the sale of a security:"The Government presented ample direct and circumstantial evidence showing that Zandford had engaged in a scheme to defraud the Woods. It showed that: (1) Zandford had systematically transferred large sums of money from the Woods' account to his own accounts over a nineteen month period; (2) prior to November 1987, the Woods had no relationship with Zandford; (3) Zandford, and not the Woods, benefited from the money transfers; (4) the Woods were vulnerable victims due to their physical and mental limitations; (5) the personal services agreement, the loan, and the vintage car restoration business were not only contrary to the Woods' stated investment objectives, but they violated the rules of NASD and those of Zandford's employer that prohibited brokers from engaging in such arrangements; and (6) vehicles owned as part of the vintage car restoration business were titled in the name of Zandford's girlfriend as opposed to the Woods' names. Additional evidence showing a scheme to defraud included Zandford's failure to disclose to his employer the existence of the agreements and personal loans; his failure to report on his taxes or bank loan applications that he received income from acting as the personal representative; and his failure to disclose on his taxes his involvement in a vintage car restoration business. Zandford's contention that there is insufficient evidence supporting that he had engaged in a scheme to defraud the Woods is meritless." Id., at 36a-37a.818rity." Id., at 565. Ultimately, the court refused "to stretch the language of the securities fraud provisions to encompass every conversion or theft that happens to involve securities." Id., at 566. Adopting what amounts to a "fraud on the market" theory of the statute's coverage, the court held that without some "relationship to market integrity or investor understanding," there is no violation of § 10(b). Id., at 563.We granted the SEC's petition for a writ of certiorari, 534 U. S. 1015 (2001), to review the Court of Appeals' construction of the phrase "in connection with the purchase or sale of any security." Because the Court of Appeals ordered the complaint dismissed rather than remanding for reconsideration, we assume the allegations contained therein are true and affirm that disposition only if no set of facts would entitle petitioner to relief. See Hartford Fire Ins. Co. v. California, 509 U. S. 764,811 (1993). We do not reach the question whether the record supports the District Court's grant of summary judgment in the SEC's favor-a question that requires all potential factual disputes to be resolved in respondent's favor.3 We merely hold that the allegations of the complaint, if true, entitle the SEC to relief; therefore, the Court of Appeals should not have directed that the complaint be dismissed.3 Nor do we review the District Court's decision denying respondent discovery-a decision that may have been influenced by respondent's frequent filings while incarcerated. The District Court noted that respondent "has been an active litigant before and during his incarceration." Id., at 16a, n. 1 (citing Zandford v. NASD, 30 F. Supp. 2d 1 (DC 1998); Zandford v. NASD, 19 F. Supp. 2d 1 (DC 1998); Zandford v. NASD, 19 F. Supp. 2d 4 (DC 1998); Zandford v. Prudential-Bache Securities, Inc., 112 F.3d 723 (CA4 1997); Zandford v. Prudential-Bache Securities, Inc., 111 F.3d 963 (DC 1998) (judgt. order); Zandford v. Prudential-Bache Securities, Inc., Civ. Action No. 94-0036, 1995 WL 507169 (D. D. C., Aug. 15, 1995); Zandford v. Prudential-Bache Securities, Inc., Civ. Action No. HAR-90-2568, 1994 WL 150918 (D. Md., Feb. 22, 1994); Zandford v. NASD, Civ. Action No. 93-1274,1993 WL 580761 (D. D. C., Nov. 5,1993)).819IISection 10(b) of the Securities Exchange Act makes it "unlawful for any person ... [t]o use or employ, in connection with the purchase or sale of any security ... , any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe." 15 U. S. C. § 78j. Rule 10b-5, which implements this provision, forbids the use, "in connection with the purchase or sale of any security," of "any device, scheme, or artifice to defraud" or any other "act, practice, or course of business" that "operates ... as a fraud or deceit." 17 CFR § 240.10b-5 (2000). Among Congress' objectives in passing the Act was "to insure honest securities markets and thereby promote investor confidence" after the market crash of 1929. United States v. O'Hagan, 521 U. S. 642, 658 (1997); see also United States v. Naftalin, 441 U. S. 768, 775 (1979). More generally, Congress sought "'to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.'" Affiliated Ute Citizens of Utah v. United States, 406 U. S. 128, 151 (1972) (quoting SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180, 186 (1963)).Consequently, we have explained that the statute should be "construed 'not technically and restrictively, but flexibly to effectuate its remedial purposes.'" 406 U. S., at 151 (quoting Capital Gains Research Bureau, Inc., 375 U. S., at 195). In its role enforcing the Act, the SEC has consistently adopted a broad reading of the phrase "in connection with the purchase or sale of any security." It has maintained that a broker who accepts payment for securities that he never intends to deliver, or who sells customer securities with intent to misappropriate the proceeds, violates § 10(b) and Rule 10b-5. See, e. g., In re Bauer, 26 S. E. C. 770 (1947); In re Southeastern Securities Corp., 29 S. E. C. 609 (1949). This interpretation of the ambiguous text of § 10(b), in the context of formal adjudication, is entitled to deference820if it is reasonable, see United States v. Mead Corp., 533 U. S. 218, 229-230, and n. 12 (2001). For the reasons set forth below, we think it is. While the statute must not be construed so broadly as to convert every common-law fraud that happens to involve securities into a violation of § 10(b), Marine Bank v. Weaver, 455 U. S. 551, 556 (1982) ("Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud"), neither the SEC nor this Court has ever held that there must be a misrepresentation about the value of a particular security in order to run afoul of the Act.The SEC claims respondent engaged in a fraudulent scheme in which he made sales of his customer's securities for his own benefit. Respondent submits that the sales themselves were perfectly lawful and that the subsequent misappropriation of the proceeds, though fraudulent, is not properly viewed as having the requisite connection with the sales; in his view, the alleged scheme is not materially different from a simple theft of cash or securities in an investment account. We disagree.According to the complaint, respondent "engaged in a scheme to defraud" the Woods beginning in 1988, shortly after they opened their account, and that scheme continued throughout the 2-year period during which respondent made a series of transactions that enabled him to convert the proceeds of the sales of the Woods' securities to his own use. App. to Pet. for Cert. 27a-29a. The securities sales and respondent's fraudulent practices were not independent events. This is not a case in which, after a lawful transaction had been consummated, a broker decided to steal the proceeds and did so. Nor is it a case in which a thief simply invested the proceeds of a routine conversion in the stock market. Rather, respondent's fraud coincided with the sales themselves.Taking the allegations in the complaint as true, each sale was made to further respondent's fraudulent scheme; each821was deceptive because it was neither authorized by, nor disclosed to, the Woods. With regard to the sales of shares in the Woods' mutual fund, respondent initiated these transactions by writing a check to himself from that account, knowing that redeeming the check would require the sale of securities. Indeed, each time respondent "exercised his power of disposition for his own benefit," that conduct, "without more," was a fraud. United States v. Dunn, 268 U. S. 121, 131 (1925). In the aggregate, the sales are properly viewed as a "course of business" that operated as a fraud or deceit on a stockbroker's customer.Insofar as the connection between respondent's deceptive practices and his sale of the Woods' securities is concerned, the case is remarkably similar to Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6 (1971). In that case the directors of Manhattan Casualty Company authorized the sale of the company's portfolio of treasury bonds because they had been "duped" into believing that the company would receive the proceeds of the sale. Id., at 9. We held that "Manhattan was injured as an investor through a deceptive device which deprived it of any compensation for the sale of its valuable block of securities." Id., at 10. In reaching this conclusion, we did not ask, as the Fourth Circuit did in this case, whether the directors were misled about the value of a security or whether the fraud involved "manipulation of a particular security." 238 F. 3d, at 565. In fact, we rejected the Second Circuit's position in Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 430 F.2d 355, 361 (1970), that because the fraud against Manhattan did not take place within the context of a securities exchange it was not prohibited by § 10(b). 404 U. S., at 10. We refused to read the statute so narrowly, noting that it "must be read flexibly, not technically and restrictively." Id., at 12. Although we recognized that the interest in "'preserving the integrity of the securities markets'" was one of the purposes animating the statute, we rejected the notion that § 10(b) is822limited to serving that objective alone. Ibid. ("We agree that Congress by § 10(b) did not seek to regulate transactions which constitute no more than internal corporate mismanagement. But we read § 10(b) to mean that Congress meant to bar deceptive devices and contrivances in the purchase or sale of securities whether conducted in the organized markets or face to face").Like the company directors in Bankers Life, the Woods were injured as investors through respondent's deceptions, which deprived them of any compensation for the sale of their valuable securities. They were duped into believing respondent would "conservatively invest" their assets in the stock market and that any transactions made on their behalf would be for their benefit for the "'safety of principal and income.''' App. to Pet. for Cert. 27a. The fact that respondent misappropriated the proceeds of the sales provides persuasive evidence that he had violated § 10(b) when he made the sales, but misappropriation is not an essential element of the offense. Indeed, in Bankers Life, we flatly stated that it was "irrelevant" that "the proceeds of the sale that were due the seller were misappropriated." 404 U. S., at 10. It is enough that the scheme to defraud and the sale of securities coincide.The Court of Appeals below distinguished Bankers Life on the ground that it involved an affirmative misrepresentation, whereas respondent simply failed to inform the Woods of his intent to misappropriate their securities. 238 F. 3d, at 566. We are not persuaded by this distinction. Respondent was only able to carry out his fraudulent scheme without making an affirmative misrepresentation because the Woods had trusted him to make transactions in their best interest without prior approval. Under these circumstances, respondent's fraud represents an even greater threat to investor confidence in the securities industry than the misrepresentation in Bankers Life. Not only does such a fraud prevent investors from trusting that their brokers are executing823transactions for their benefit, but it undermines the value of a discretionary account like that held by the Woods. The benefit of a discretionary account is that it enables individuals, like the Woods, who lack the time, capacity, or know-how to supervise investment decisions, to delegate authority to a broker who will make decisions in their best interests without prior approval. If such individuals cannot rely on a broker to exercise that discretion for their benefit, then the account loses its added value. Moreover, any distinction between omissions and misrepresentations is illusory in the context of a broker who has a fiduciary duty to her clients. See Chiarella v. United States, 445 U. S. 222, 230 (1980) (noting that "silence in connection with the purchase or sale of securities may operate as a fraud actionable under § 10(b)" when there is "a duty to disclose arising from a relationship of trust and confidence between parties to a transaction"); Affiliated Ute Citizens of Utah v. United States, 406 U. S., at 153.More recently, in Wharf (Holdings) Ltd. v. United Int'l Holdings, Inc., 532 U. S. 588 (2001), our decision that the seller of a security had violated § 10(b) focused on the secret intent of the seller when the sale occurred. The purchaser claimed "that Wharf sold it a security (the option) while secretly intending from the very beginning not to honor the option." Id., at 597. Although Wharf did not specifically argue that the breach of contract underlying the complaint lacked the requisite connection with a sale of securities, it did assert that the case was merely a dispute over ownership of the option, and that interpreting § 10(b) to include such a claim would convert every breach of contract that happened to involve a security into a violation of the federal securities laws. Id., at 596. We rejected that argument because the purchaser's claim was not that the defendant failed to carry out a promise to sell securities; rather, the claim was that the defendant sold a security while never intending to honor its agreement in the first place. Id., at 596-597. Similarly,824in this case the SEC claims respondent sold the Woods' securities while secretly intending from the very beginning to keep the proceeds. In Wharf, the fraudulent intent deprived the purchaser of the benefit of the sale whereas here the fraudulent intent deprived the seller of that benefit, but the connection between the deception and the sale in each case is identical.In United States v. O'Hagan, 521 U. S. 642 (1997), we held that the defendant had committed fraud "in connection with" a securities transaction when he used misappropriated confidential information for trading purposes. We reasoned that "the fiduciary's fraud is consummated, not when the fiduciary gains the confidential information, but when, without disclosure to his principal, he uses the information to purchase or sell securities. The securities transaction and the breach of duty thus coincide. This is so even though the person or entity defrauded is not the other party to the trade, but is, instead, the source of the nonpublic information." Id., at 656. The Court of Appeals distinguished O'Hagan by reading it to require that the misappropriated information or assets not have independent value to the client outside the securities market, 238 F. 3d, at 565. We do not read O'Hagan as so limited. In the chief passage cited by the Court of Appeals for this proposition, we discussed the Government's position that "[t]he misappropriation theory would not ... apply to a case in which a person defrauded a bank into giving him a loan or embezzled cash from another, and then used the proceeds of the misdeed to purchase securities," because in that situation "the proceeds would have value to the malefactor apart from their use in a securities transaction, and the fraud would be complete as soon as the money was obtained." 521 U. S., at 656 (internal quotation marks omitted). Even if this passage could be read to introduce a new requirement into § lO(b), it would not affect our analysis of this case, because the Woods' securities did not have value for respondent apart from their use in a secu-825rities transaction and the fraud was not complete before the sale of securities occurred.As in Bankers Life, Wharf, and O'Hagan, the SEC complaint describes a fraudulent scheme in which the securities transactions and breaches of fiduciary duty coincide. Those breaches were therefore "in connection with" securities sales within the meaning of § lO(b).4 Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2001SyllabusSECURITIES AND EXCHANGE COMMISSION v.ZANDFORDCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 01-147. Argued March 18, 2002-Decided June 3, 2002Respondent broker persuaded William Wood, an elderly man, to open a joint investment account for himself and his mentally retarded daughter. The Woods gave respondent discretion to manage the account and a general power of attorney to engage in securities transactions without their prior approval. When Mr. Wood died a few years later, all of the money he had entrusted to respondent was gone. Respondent was subsequently indicted on federal wire fraud charges for, inter alia, selling securities in the Woods' account and making personal use of the proceeds. The Securities and Exchange Commission (SEC) then filed a civil complaint in the same District Court, alleging that respondent had violated § 10 of the Securities Exchange Act of 1934 (Act) and the SEC's Rule 10b-5 by engaging in a scheme to defraud the Woods and misappropriating their securities without their knowledge or consent. After respondent's conviction in the criminal case, the District Court granted the SEC summary judgment in the civil case. The Fourth Circuit reversed and directed the District Court to dismiss the complaint, holding that neither the criminal conviction nor the allegations in the complaint established that respondent's fraud was "in connection with the purchase or sale of any security." Because the scheme was to steal the Woods' assets, not to manipulate a particular security, and it had no relationship to market integrity or investor understanding, the court held that there was no § lO(b) violation.Held: Assuming that the complaint's allegations are true, respondent's conduct was "in connection with the purchase or sale of any security." Among Congress' objectives in passing the Act was to ensure honest securities markets and thereby promote investor confidence after the 1929 market crash. Congress sought "'to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.''' Affiliated Ute Citizens of Utah v. United States, 406 U. S. 128, 151. To effectuate its remedial purposes, the Act should be construed flexibly, not technically and restrictively. The SEC has consistently adopted a broad reading of "in connection with the purchase or sale of any secu-814Syllabusrity," maintaining that a broker who accepts payment for securities that he never intends to deliver, or who sells securities with intent to misappropriate the proceeds, violates § 10(b) and Rule 10(b)-5. This interpretation of the statute's ambiguous text in the context of formal adjudication is entitled to deference. See United States v. Mead Corp., 533 U. S. 218, 229-230. Neither the SEC nor this Court has ever held that there must be a misrepresentation about a particular security's value in order to run afoul of the Act. This Court disagrees with respondent's claim that his misappropriation of the proceeds, though fraudulent, does not have the requisite connection with the sales, which were perfectly lawful. The securities sales and respondent's practices were not independent events. Taking the complaint's allegations as true, each sale was made to further his fraudulent scheme; and each was deceptive because it was neither authorized by, nor disclosed to, the Woods. In the aggregate, the sales are properly viewed as a course of business that operated as a fraud or deceit on a stockbroker's customer. As in Superintendent of Ins. of N. Y. v. Bankers Life & Casualty Co., 404 U. S. 6; Wharf (Holdings) Ltd. v. United Int'l Holdings, Inc., 532 U. S. 588; and United States v. O'Hagan, 521 U. S. 642, all cases in which this Court found a § 10(b) violation, the SEC complaint here describes a fraudulent scheme in which the securities transactions and breaches of fiduciary duty coincide. Those breaches were therefore "in connection with" securities sales within § lO(b)'s meaning. Pp. 819-825.238 F.3d 559, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Matthew D. Roberts argued the cause for petitioner.With him on the briefs were Acting Solicitor General Clement, Deputy Solicitor General Kneedler, David M. Becker, Jacob H. Stillman, Richard M. Humes, Katharine B. Gresham, and Susan S. McDonald.Steven H. Goldblatt argued the cause for respondent.With him on the brief was Roy T. Englert, Jr. **Briefs of amici curiae urging reversal were filed for AARP et al. by Deborah M. Zuckerman, Stacy J. Canan, Michael R. Schuster, and Kevin Roddy; and for NASD Regulation, Inc., by F. Joseph Warin, Douglas R. Cox, Andrew S. Tulumello, and Elisse B. Walter.815Full Text of Opinion

1967_645

MR JUSTICE STEWART delivered the opinion of the Court.In this case, we are called upon to determine the scope and the constitutionality of an Act of Congress, 42 U.S.C. § 1982, which provides that:"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase lease, sell, hold, and convey real and personal property."On September 2, 1965, the petitioners filed a complaint in the District Court for the Eastern District of Missouri, alleging that the respondents had refused to sell them a home in the Paddock Woods community of St. Louis County for the sole reason that petitioner Joseph Lee Jones is a Negro. Relying in part upon § 1982, the petitioners sought injunctive and other relief. [Footnote 1] The District Court sustained the respondents' motion to dismiss the complaint, [Footnote 2] and the Court of Appeals for the Eighth Circuit affirmed, concluding that § 1982 applies only to state action, and does not reach private refusals to sell. [Footnote 3] We granted certiorari to consider the Page 392 U. S. 413 questions thus presented. [Footnote 4] For the reasons that follow, we reverse the judgment of the Court of Appeals. We hold that § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment. [Footnote 5]IAt the outset, it is important to make clear precisely what this case does not involve. Whatever else it may be, 42 U.S.C. § 1982 is not a comprehensive open housing law. In sharp contrast to the Fair Housing Title (Title VIII) of the Civil Rights Act of 1968, Pub.L. 9284, 82 Stat. 81, the statute in this case deals only with racial discrimination, and does not address itself to discrimination on grounds of religion or national origin. [Footnote 6] It does not deal specifically with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling. [Footnote 7] It does not prohibit advertising or other representations that indicate discriminatory preferences. [Footnote 8] It does not refer explicitly to discrimination in financing arrangements, [Footnote 9] or in the provision of brokerage services. [Footnote 10] It does not empower Page 392 U. S. 414 a federal administrative agency to assist aggrieved parties. [Footnote 11] It makes no provision for intervention by the Attorney General. [Footnote 12] And, although it can be enforced by injunction, [Footnote 13] it contains no provision expressly authorizing a federal court to order the payment of damages. [Footnote 14] Page 392 U. S. 415Thus, although § 1982 contains none of the exemptions that Congress included in the Civil Rights Act of 1968, [Footnote 15] it would be a serious mistake to suppose that § 1982 in any way diminishes the significance of the law recently enacted by Congress. Indeed, the Senate Subcommittee on Housing and Urban Affairs was informed in hearings held after the Court of Appeals had rendered its decision in this case that § 1982 might well be "a presently valid federal statutory ban against discrimination by private persons in the sale or lease of real property." [Footnote 16] The Subcommittee was told, however, that, even if this Court should so construe § 1982, the existence of that statute would not "eliminate the need for congressional action" to spell out "responsibility on the part of the federal government to enforce the rights it protects." [Footnote 17] The point was made that, in light of the many difficulties Page 392 U. S. 416 confronted by private litigants seeking to enforce such rights on their own,"legislation is needed to establish federal machinery for enforcement of the rights guaranteed under Section 1982 of Title 42 even if the plaintiffs in Jones v. Alfred H. Mayer Company should prevail in the United States Supreme Court. [Footnote 18]"On April 10, 1968, Representative Kelly of New York focused the attention of the House upon the present case and its possible significance. She described the background of this litigation, recited the text of § 1982, and then added:"When the Attorney General was asked in court about the effect of the old law [1982] as compared with the pending legislation which is being considered on the House floor today, he said that the scope was somewhat different, the remedies and procedures were different, and that the new law was still quite necessary. [Footnote 19]"Later the same day, the House passed the Civil Rights Act of 1968. Its enactment had no effect upon § 1982 [Footnote 20] Page 392 U. S. 417 and no effect upon this litigation, [Footnote 21] but it underscored the vast differences between, on the one hand, a general statute applicable only to racial discrimination in the rental and sale of property and enforceable only by private parties acting on their own initiative, and, on the other hand, a detailed housing law, applicable to a broad range of discriminatory practices and enforceable by a complete arsenal of federal authority. Having noted these differences, we turn to a consideration of § 1982 itself.IIThis Court last had occasion to consider the scope of 42 U.S.C. § 1982 in 1948, in Hurd v. Hodge, 334 U. S. 24. That case arose when property owners in the District of Columbia sought to enforce racially restrictive covenants against the Negro purchasers of several homes on their block. A federal district court enforced the restrictive agreements by declaring void the deeds of the Negro purchasers. It enjoined further attempts to sell or lease them the properties in question, and directed them to "remove themselves and all of their personal belongings" from the premises within 60 days. The Page 392 U. S. 418 Court of Appeals for the District of Columbia Circuit affirmed, [Footnote 22] and this Court granted certiorari [Footnote 23] to decide whether § 1982, then § 1978 of the Revised Statutes of 1874, barred enforcement of the racially restrictive agreements in that case.The agreements in Hurd covered only two-thirds of the lots of a single city block, and preventing Negroes from buying or renting homes in that specific area would not have rendered them ineligible to do so elsewhere in the city. Thus, if § 1982 had been thought to do no more than grant Negro citizens the legal capacity to buy and rent property free of prohibitions that wholly disabled them because of their race, judicial enforcement of the restrictive covenants at issue would not have violated § 1982. But this Court took a broader view of the statute. Although the covenants could have been enforced without denying the general right of Negroes to purchase or lease real estate, the enforcement of those covenants would nonetheless have denied the Negro purchasers "the same right as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property.'" 334 U.S. at 334 U. S. 34. That result, this Court concluded, was prohibited by Page 392 U. S. 419 § 1982. To suggest otherwise, the Court said, "is to reject the plain meaning of language." Ibid.Hurd v. Hodge, supra, squarely held, therefore, that a Negro citizen who is denied the opportunity to purchase the home he wants "[s]olely because of [his] race and color," 334 U.S. at 334 U. S. 34, has suffered the kind of injury that § 1982 was designed to prevent. Accord, Buchanan v. Warley, 245 U. S. 60, 245 U. S. 79; Harmon v. Tyler, 273 U.S. 668; Richmond v. Deans, 281 U. S. 704. The basic source of the injury in Hurd was, of course, the action of private individuals -- white citizens who had agreed to exclude Negroes from a residential area. But an arm of the Government -- in that case, a federal court -- had assisted in the enforcement of that agreement. [Footnote 24] Thus, Hurd v. Hodge, supra, did not present the question whether purely private discrimination, unaided by any action on the part of government, would violate § 1982 if its effect were to deny a citizen the right to rent or buy property solely because of his race or color.The only federal court (other than the Court of Appeals in this case) that has ever squarely confronted that question held that a wholly private conspiracy among white citizens to prevent a Negro from leasing a farm violated § 1982. United States v. Morris, 125 F. 322. It is true that a dictum in Hurd said that § 1982 was directed only toward "governmental action," 334 U.S. at 334 U. S. 31, but neither Hurd nor any other case Page 392 U. S. 420 before or since has presented that precise issue for adjudication in this Court. [Footnote 25] Today we face that issue for the first time.IIIWe begin with the language of the statute itself. In plain and unambiguous terms, § 1982 grants to all citizens, without regard to race or color, "the same right" to purchase and lease property "as is enjoyed by white citizens." As the Court of Appeals in this case evidently recognized, that right can be impaired as effectively Page 392 U. S. 421 by "those who place property on the market" [Footnote 26] as by the State itself. For, even if the State and its agents lend no support to those who wish to exclude persons from their communities on racial grounds, the fact remains that, whenever property "is placed on the market for whites only, whites have a right denied to Negroes." [Footnote 27] So long as a Negro citizen who wants to buy or rent a home can be turned away simply because he is not white, he cannot be said to enjoy "the same right . . . as is enjoyed by white citizens . . . to . . . purchase [and] lease . . . real and personal property." 42 U.S.C. § 1982. (Emphasis added.)On its face, therefore, § 1982 appears to prohibit all discrimination against Negroes in the sale or rental of property -- discrimination by private owners as well as discrimination by public authorities. Indeed, even the respondents seem to concede that, if § 1982 "means what it says" -- to use the words of the respondents' brief -- then it must encompass every racially motivated refusal Page 392 U. S. 422 to sell or rent, and cannot be confined to officially sanctioned segregation in housing. Stressing what they consider to be the revolutionary implications of so literal a reading of § 1982, the respondents argue that Congress cannot possibly have intended any such result. Our examination of the relevant history, however, persuades us that Congress meant exactly what it said.IVIn its original form, 42 U.S.C. § 1982 was part of § 1 of the Civil Rights Act of 1866. [Footnote 28] That section was cast in sweeping terms:"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, . . . are hereby declared to be citizens of the United States, and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. [Footnote 29] "Page 392 U. S. 423The crucial language for our purposes was that which guaranteed all citizens"the same right, in every State and Territory in the United States, . . . to inherit, purchase, lease, sell, hold, and convey real and personal property . . . as is enjoyed by white citizens. . . ."To the Congress that passed the Civil Rights Act of 1866, it was clear that the right to do these things might be infringed not only by "State or local law", but also by "custom, or prejudice." [Footnote 30] Thus, when Congress provided in § 1 of the Civil Rights Act that the right to purchase and lease property was to be enjoyed equally throughout the United States by Negro and white citizens Page 392 U. S. 424 alike, it plainly meant to secure that right against interference from any source whatever, whether governmental or private. [Footnote 31]Indeed, if § 1 had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. [Footnote 32] For that section, which provided fines and prison terms for certain Page 392 U. S. 425 individuals who deprived others of rights "secured or protected" by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. [Footnote 33] There would, of course, have been no private violations to exempt if the only "right" granted by § 1 Page 392 U. S. 426 had been a right to be free of discrimination by public officials. Hence, the structure of the 1866 Act, as well as its language, points to the conclusion urged by the petitioners in this case -- that § 1 was meant to prohibit all racially motivated deprivations of the rights enumerated in the statute, although only those deprivations perpetrated "under color of law" were to be criminally punishable under § 2.In attempting to demonstrate the contrary, the respondents rely heavily upon the fact that the Congress which approved the 1866 statute wished to eradicate the recently enacted Black Codes -- laws which had saddled Negroes with "onerous disabilities and burdens, and curtailed their rights . . . to such an extent that their freedom was of little value. . . ." Slaughter-House Cases, 16 Wall. 36, 83 U. S. 70. [Footnote 34] The respondents suggest that the only evil Congress sought to eliminate was that of racially discriminatory laws in the former Confederate States. But the Civil Rights Act was drafted to apply throughout the country, [Footnote 35] and its language was far Page 392 U. S. 427 broader than would have been necessary to strike down discriminatory statutes.That broad language, we are asked to believe, was a mere slip of the legislative pen. We disagree. For the same Congress that wanted to do away with the Black Codes also had before it an imposing body of evidence pointing to the mistreatment of Negroes by private individuals and unofficial groups, mistreatment unrelated to any hostile state legislation. "Accounts in newspapers North and South, Freedmen's Bureau and other official documents, private reports and correspondence were all adduced" to show that "private outrage and atrocity" were "daily inflicted on freedmen. . . . [Footnote 36] The congressional debates are replete with references to private injustices against Negroes -- references to white employers who refused to pay their Negro workers, [Footnote 37] white planters who agreed among themselves not to hire freed slaves without the permission of their former masters, [Footnote 38] white Page 392 U. S. 428 citizens who assaulted Negroes [Footnote 39] or who combined to drive them out of their communities. [Footnote 40]Indeed, one of the most comprehensive studies then before Congress stressed the prevalence of private hostility toward Negroes and the need to protect them from the resulting persecution and discrimination. [Footnote 41] The report noted the existence of laws virtually prohibiting Negroes from owning or renting property in certain towns, [Footnote 42] but described such laws as "mere isolated cases," representing "the local outcroppings of a spirit . . . found to prevail everywhere" [Footnote 43] -- a spirit expressed, for example, Page 392 U. S. 429 by lawless acts of brutality directed against Negroes who traveled to areas where they were not wanted. [Footnote 44] The report concluded that, even if anti-Negro legislation were "repealed in all the States lately in rebellion," equal treatment for the Negro would not yet be secured. [Footnote 45]In this setting, it would have been strange indeed if Congress had viewed its task as encompassing merely the nullification of racist laws in the former rebel States. That the Congress which assembled in the Nation's capital in December, 1865, in fact, had a broader vision of the task before it became clear early in the session, when three proposals to invalidate discriminatory state statutes were rejected as "too narrowly conceived." [Footnote 46] From the outset, it seemed clear, at least to Senator Trumbull of Illinois, Chairman of the Judiciary Committee, that stronger legislation might prove necessary. After Senator Wilson of Massachusetts had introduced his bill to strike down all racially discriminatory laws in the South, [Footnote 47] Senator Trumbull said this:"I reported from the Judiciary Committee the second section of the [Thirteenth Amendment] for the very purpose of conferring upon Congress authority to see that the first section was carried out Page 392 U. S. 430 in good faith . . . and I hold that, under that second section, Congress will have the authority, when the constitutional amendment is adopted, not only to pass the bill of the Senator from Massachusetts, but a bill that will be much more efficient to protect the freedman in his rights. . . . And, sir, when the constitutional amendment shall have been adopted, if the information from the South be that the men whose liberties are secured by it are deprived of the privilege to go and come when they please, to buy and sell when they please, to make contracts and enforce contracts, I give notice that, if no one else does, I shall introduce a bill and urge its passage through Congress that will secure to those men every one of these rights: they would not be freemen without them. It is idle to say that a man is free who cannot go and come at pleasure, who cannot buy and sell, who cannot enforce his rights. . . . [So] when the constitutional amendment is adopted, I trust we may pass a bill, if the action of the people in the southern States should make it necessary, that will be much more sweeping and efficient than the bill under consideration. [Footnote 48] "Page 392 U. S. 431Five days later, on December 18, 1865, the Secretary of State officially certified the ratification of the Thirteenth Amendment. The next day, Senator Trumbull again rose to speak. He had decided, he said, that the "more sweeping and efficient" bill of which he had spoken previously ought to be enacted"at an early day for the purpose of quieting apprehensions in the minds of many friends of freedom lest by local legislation or a prevailing public sentiment in some of the States persons of the African race should continue to be oppressed and, in fact, deprived of their freedom. . . . [Footnote 49]"On January 5, 1866, Senator Trumbull introduced the bill he had in mind -- the bill which later became the Civil Rights Act of 1866. [Footnote 50] He described its objectives in terms that belie any attempt to read it narrowly:"Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be Page 392 U. S. 432 affected by them have some means of availing themselves of their benefits. [Footnote 51]"Of course, Senator Trumbull's bill would, as he pointed out, "destroy all [the] discriminations" embodied in the Black Codes, [Footnote 52] but it would do more: it would affirmatively secure for all men, whatever their race or color, what the Senator called the "great fundamental rights":"the right to acquire property, the right to go and come at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property. [Footnote 53]"As to those basic civil rights, the Senator said, the bill would "break down all discrimination between black men and white men." [Footnote 54] Page 392 U. S. 433That the bill would indeed have so sweeping an effect was seen as its great virtue by its friends [Footnote 55] and as its great danger by its enemies, [Footnote 56] but was disputed by none. Opponents of the bill charged that it would not only regulate state laws, but would directly "determine the persons who [would] enjoy . . . property within the States," [Footnote 57] threatening the ability of white citizens "to determine who [would] be members of [their] communit[ies]." [Footnote 58] The bill's advocates did not deny the accuracy of those characterizations. Instead, they defended the propriety of employing federal authority to deal with "the white man . . . [who] would invoke the power of local prejudice" against the Negro. [Footnote 59] Thus, when the Senate passed the Civil Rights Act on February 2, 1866, [Footnote 60] it did so fully aware of the breadth of the measure it had approved.In the House, as in the Senate, much was said about eliminating the infamous Black Codes. [Footnote 61] But, like the Senate, the House was moved by a larger objective -- that of giving real content to the freedom guaranteed by the Thirteenth Amendment. Representative Thayer of Pennsylvania put it this way:"[W]hen I voted for the amendment to abolish slavery . . . , I did not suppose that I was offering Page 392 U. S. 434 . . . a mere paper guarantee. And when I voted for the second section of the amendment, I felt . . . certain that I had . . . given to Congress ability to protect . . . the rights which the first section gave. . . .""The bill which now engages the attention of the House has for its object to carry out and guaranty the reality of that great measure. It is to give to it practical effect and force. It is to prevent that great measure from remaining a dead letter upon the constitutional page of this country. . . . The events of the last four years . . . have changed [a] large class of people . . . from a condition of slavery to that of freedom. The practical question now to be decided is whether they shall be, in fact, freemen. It is whether they shall have the benefit of this great charter of liberty given to them by the American people. [Footnote 62]"Representative Cook of Illinois thought that, without appropriate federal legislation, any "combination of men in [a] neighborhood [could] prevent [a Negro] from having any chance" to enjoy those benefits. [Footnote 63] To Congressman Cook and others like him, it seemed evident that, with respect to basic civil rights -- including the "right to . . . purchase, lease, sell, hold, and convey . . . property," Congress must provide that "there . . . be no discrimination" on grounds of race or color. [Footnote 64] Page 392 U. S. 435It thus appears that, when the House passed the Civil Rights Act on March 13, 1866, [Footnote 65] it did so on the same assumption that had prevailed in the Senate: it too believed that it was approving a comprehensive statute forbidding all racial discrimination affecting the basic civil rights enumerated in the Act.President Andrew Johnson vetoed the Act on March 27, [Footnote 66] and, in the brief congressional debate that followed, his supporters characterized its reach in all-embracing terms. One stressed the fact that § 1 would confer "the right . . . to purchase . . . real estate . . . without any qualification and without any restriction whatever. . . ." [Footnote 67] Another predicted, as a corollary, that the Act would preclude preferential treatment for white persons in the rental of hotel rooms and in the sale of church pews. [Footnote 68] Those observations elicited no reply. On April 6, the Senate, and on April 9, the House, overrode the President's veto by the requisite majorities, [Footnote 69] and the Civil Rights Act of 1866 became law. [Footnote 70] Page 392 U. S. 436In light of the concerns that led Congress to adopt it and the contents of the debates that preceded its passage, it is clear that the Act was designed to do just what its terms suggest: to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein -- including the right to purchase or lease property.Nor was the scope of the 1866 Act altered when it was reenacted in 1870, some two years after the ratification of the Fourteenth Amendment. [Footnote 71] It is quite true that some members of Congress supported the Fourteenth Amendment "in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States." Hurd v. Hodge, 334 U. S. 24, 334 U. S. 333. But it certainly does not follow that the adoption of the Fourteenth Amendment or the subsequent readoption of the Civil Rights Act were meant somehow to limit its application to state action. The legislative history furnishes not the slightest factual basis for any such speculation, and the conditions prevailing in 1870 make it highly implausible. For, by that time, most, if not all, of the former Confederate States, then under the control of "reconstructed" legislatures, had formally repudiated racial discrimination, and the focus of congressional concern had clearly shifted from hostile statutes to the activities of groups like the Ku Klux Klan, operating wholly outside the law. [Footnote 72] Page 392 U. S. 437Against this background, it would obviously make no sense to assume, without any historical support whatever, that Congress made a silent decision in 1870 to exempt private discrimination from the operation of the Civil Rights Act of 1866. [Footnote 73] "The cardinal rule is that repeals by implication are not favored." Posadas v. National City Bank, 296 U. S. 497, 296 U. S. 503. All Congress said in 1870 was that the 1866 law "is hereby reenacted." That is all Congress meant.As we said in a somewhat different setting two Terms ago,"We think that history leaves no doubt that, if we are to give [the law] the scope that its origins dictate, we must accord it a sweep as broad as its language."United States v. Price, 383 U. S. 787, 383 U. S. 801. "We are not at liberty to seek ingenious analytical instruments," ibid., to carve from § 1982 an exception for private conduct -- even though its application to such conduct in the present context is without established precedent. And, as the Attorney General of the United States said at the oral argument of this case, "The fact that the statute lay partially dormant for many years cannot be held to diminish its force today."V.The remaining question is whether Congress has power under the Constitution to do what § 1982 purports to do: to prohibit all racial discrimination, private and public, in the sale and rental of property. Our starting point is the Thirteenth Amendment, for it was pursuant Page 392 U. S. 438 to that constitutional provision that Congress originally enacted what is now § 1982. The Amendment consists of two parts. Section 1 states:"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."Section 2 provides:"Congress shall have power to enforce this article by appropriate legislation."As its text reveals, the Thirteenth Amendment"is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States."Civil Rights Cases, 109 U. S. 3, 109 U. S. 20. It has never been doubted, therefore, "that the power vested in Congress to enforce the article by appropriate legislation," ibid., includes the power to enact laws "direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not." Id. at 109 U. S. 23. [Footnote 74]Thus, the fact that § 1982 operates upon the unofficial acts of private individuals, whether or not sanctioned by state law, presents no constitutional problem. If Congress has power under the Thirteenth Amendment to eradicate conditions that prevent Negroes from buying and renting property because of their race or color, then no federal statute calculated to achieve that objective Page 392 U. S. 439 can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals. The constitutional question in this case, therefore, comes to this: does the authority of Congress to enforce the Thirteenth Amendment "by appropriate legislation" include the power to eliminate all racial barriers to the acquisition of real and personal property? We think the answer to that question is plainly yes."By its own unaided force and effect," the Thirteenth Amendment "abolished slavery, and established universal freedom." Civil Rights Cases, 109 U. S. 3, 109 U. S. 20. Whether or not the Amendment itself did any more than that -- a question not involved in this case -- it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed "Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Ibid. (Emphasis added.)Those who opposed passage of the Civil Rights Act of 1866 argued, in effect that the Thirteenth Amendment merely authorized Congress to dissolve the legal bond by which the Negro slave was held to his master. [Footnote 75] Yet many had earlier opposed the Thirteenth Amendment on the very ground that it would give Congress virtually unlimited power to enact laws for the protection of Negroes in every State. [Footnote 76] And the majority leaders in Congress -- who were, after all, the authors of the Thirteenth Amendment -- had no doubt that its Enabling Clause contemplated the sort of positive legislation that Page 392 U. S. 440 was embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then"the trumpet of freedom that we have been blowing throughout the land has given an 'uncertain sound,' and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that, under this provision . . . , we may destroy all these discriminations in civil rights against the black man, and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States, and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end. [Footnote 77]"Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational Page 392 U. S. 441 one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery -- its "burdens and disabilities" -- included restraints upon"those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens."Civil Rights Cases, 109 U. S. 3, 109 U. S. 22. [Footnote 78] Just as the Black Codes, enacted after the Civil Page 392 U. S. 442 War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men Page 392 U. S. 443 into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom -- freedom to "go and come at pleasure" [Footnote 79] and to "buy and sell when they please" [Footnote 80] -- would be left with "a mere paper guarantee" [Footnote 81] if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.Representative Wilson of Iowa was the floor manager in the House for the Civil Rights Act of 1866. In urging that Congress had ample authority to pass the pending bill, he recalled the celebrated words of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 421:"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. [Footnote 82]""The end is legitimate," the Congressman said,"because it is defined by the Constitution itself. The end is the Page 392 U. S. 444 maintenance of freedom. . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality. [Footnote 83]"We agree. The judgment isReversed

U.S. Supreme CourtJones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)Jones v. Alfred H. Mayer Co.No. 645Argued April 1-2, 1968Decided June 17, 1968392 U.S. 409SyllabusPetitioners, alleging that respondents had refused to sell them a home for the sole reason that petitioner Joseph Lee Jones is a Negro, filed a complaint in the District Court, seeking injunctive and other relief. Petitioners relied in part upon 42 U.S.C. § 1982, which provides that all citizens"shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."The District Court dismissed the complaint, and the Court of Appeals affirmed, concluding that § 1982 applies only to state action, and does not reach private refusals to sell.Held:1. Congress' enactment of the Civil Rights Act of 1968, containing in Title VIII detailed housing provisions applicable to a broad range of discriminatory practices and enforceable by a complete arsenal of federal authority, had no effect upon this litigation or upon § 1982, a general statute limited to racial discrimination in the sale and rental of property and enforceable only by private parties acting on their own initiative. Pp. 392 U. S. 413-417.2. Section 1982 applies to all racial discrimination in the sale or rental of property. Pp. 392 U. S. 417-437.(a) Section 1982 has previously been construed to do more than grant Negro citizens the general legal capacity to buy and rent property free of prohibitions that wholly disable them because of their race. Hurd v. Hodge, 334 U. S. 24. Pp. 392 U. S. 417-419.(b) The question whether purely private discrimination, unaided by any governmental action, violates § 1982 remains one of first impression in this Court. Hurd v. Hodge, supra; Corrigan v. Buckley, 271 U. S. 323; the Civil Rights Cases, 109 U. S. 3, and Virginia v. Rives, 100 U. S. 313, distinguished. Pp. 392 U. S. 419-420.(c) On its face, the language of § 1982 appears to prohibit all discrimination against Negroes in the sale or rental of property. Pp. 392 U. S. 420-422.(d) The legislative history of § 1982, which was part of § 1 of the Civil Rights Act of 1866, likewise shows that both Houses of Congress believed that they were enacting a comprehensive statute Page 392 U. S. 410 forbidding every form of racial discrimination affecting the basic civil rights enumerated therein -- including the right to purchase or lease property -- and thereby securing all such rights against interference from any source whatever, whether governmental or private. Pp. 392 U. S. 422-436.(e) The scope of the 1866 Act was not altered when it was reenacted in 1870, two years after ratification of the Fourteenth Amendment. Pp. 392 U. S. 436-437.(f) That § 1982 lay partially dormant for many years does not diminish its force today. P. 392 U. S. 437.3. Congress has power under the Thirteenth Amendment to do what 42 U.S.C. § 1982 purports to do. Pp. 392 U. S. 437-444.(a) Because the Thirteenth Amendment"is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States,"Civil Rights Cases, 109 U. S. 3, 109 U. S. 20, it has never been doubted "that the power vested in Congress to enforce the article by appropriate legislation," ibid., includes the power to enact laws "operating upon the acts of individuals, whether sanctioned by State legislation or not." Id. at 109 U. S. 23. See Clyatt v. United States, 197 U. S. 207. P. 392 U. S. 438.(b) The Thirteenth Amendment authorized Congress to do more than merely dissolve the legal bond by which the Negro slave was held to his master; it gave Congress the power rationally to determine what are the badges and the incidents of slavery and the authority to translate that determination into effective legislation. Pp. 392 U. S. 439-440.(c) Whatever else they may have encompassed, the badges and incidents of slavery that the Thirteenth Amendment empowered Congress to eliminate included restraints upon"those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens."Civil Rights Cases, 109 U. S. 3, 109 U. S. 22. Insofar as Hodges v. United States, 203 U. S. 1, suggests a contrary holding, it is overruled. Pp. 392 U. S. 441-443.379 F.2d 33, reversed. Page 392 U. S. 412

1957_231

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The question presented by petitioner is whether evidence obtained as the result of wiretapping by state law enforcement officers, without participation by federal authorities, is admissible in a federal court. Petitioner was convicted of the illegal possession and transportation of distilled spirits without tax stamps affixed thereto in violation of 26 U.S.C. §§ 5008(b)(1), 5642. The New York police, suspecting that petitioner and others were dealing in narcotics in violation of state law, obtained a warrant in accordance with state law [Footnote 1] authorizing them to tap the wires of a bar which petitioner was known to frequent. On May 10, 1956, the police overheard a conversation between petitioner and another in which it was said that "eleven pieces" were to be transported that night at a certain time and to a certain place in New York City. Acting according to this information, the police followed and stopped a car driven by petitioner's brother. No narcotics were found, but hidden in the car were eleven five-gallon cans of alcohol without the tax stamps required by federal law. The brother and the alcohol were turned over to federal authorities, and this prosecution followed.At the trial, the first government witness, a state police officer, testified to the events leading up to the discovery of the cans of alcohol in an automobile which had been driven by the petitioner and then taken by his brother to the appointed spot. No mention was made of the wiretap on direct examination. However, on cross-examination, this witness admitted that the information causing the police to follow the car and intercept it came Page 355 U. S. 98 from a wiretap. [Footnote 2] On redirect examination, the prosecutor sought to prove that the wiretap had been authorized by state law. The Government introduced a second police official, who testified substantially as the first, admitting on direct examination that a wiretap had existed and on cross-examination that the discovery of the alcohol was occasioned by knowledge of the contents of the wiretapped conversation. The words of that conversation were not disclosed to the jury, although they were disclosed to the trial judge and the defense counsel. [Footnote 3] The Page 355 U. S. 99 record is silent as to whether the prosecutor was told the words of the conversation. However, in our view, it is unimportant whether he had this information or not.Petitioner's motion to suppress the evidence was denied, and he was convicted. The Court of Appeals for the Second Circuit affirmed, 244 F.2d 389, holding that, while the action of the state officials violated Section 605 of the Federal Communications Act, the evidence obtained from the violation was still admissible. We granted certiorari. 355 U.S. 801. Petitioner, relying on this Court's supervisory powers over the federal court system, claims that the admission of the evidence was barred by the Federal Constitution and Section 605. We do not reach the constitutional questions, as this case can be determined under the statute.Section 605 states in pertinent part: [Footnote 4]". . . no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. . . ."IIn Nardone v. United States, 302 U. S. 379, and 308 U. S. 308 U.S. 338, this Court held that evidence obtained from wiretapping by federal agents was inadmissible in federal court. In Schwartz v. Texas, 344 U. S. 199, the same type Page 355 U. S. 100 of evidence was held admissible in a state court where it had been obtained by state agents. The case before us, containing elements from these three cases, forces a choice between the different results reached.The Nardone decisions laid down the underlying premises upon which is based all subsequent consideration of Section 605. The crux of those decisions is that the plain words of the statute created a prohibition against any persons violating the integrity of a system of telephonic communication, and that evidence obtained in violation of this prohibition may not be used to secure a federal conviction. Nardone v. United States, 302 U. S. 379, 302 U. S. 382. Moreover, as the second Nardone decision asserts, distinctions designed to defeat the plain meaning of the statute will not be countenanced. 308 U. S. 308 U.S. 338, 308 U. S. 340. We hold that the correct application of the above principle dictates that evidence obtained by means forbidden by Section 605, whether by state or federal agents, is inadmissible in federal court.In this case, the statute was violated, if not earlier, at least upon the disclosure to the jury of the existence of the intercepted communication, [Footnote 5] for Section 605 forbids the divulgence of "the existence, contents, substance, purport, effect, or meaning" of the intercepted message. The effect of that violation in contributing to the conviction here is manifest. The jury were free to speculate that the existence of the communication, the source of the Government's evidence, was further proof of petitioner's Page 355 U. S. 101 criminal activities. [Footnote 6] The prosecutor continued to use evidence now linked to a disclosed wiretap although he had been made aware of its existence and of its obvious significance to his case. [Footnote 7]Respondents argue that the evidence obtained from the disclosed wiretap should have been admissible by referring to Schwartz v. Texas, supra, and by drawing a parallel to the Fourth Amendment. It is urged that, as long as the wiretapping occurred without the participation or even knowledge of federal law enforcement officers, the evidence should be admitted in federal court; the Federal Government, being without fault, should not be handicapped. However, Schwartz v. Texas does not indicate approval of such a proposition. Both a state court and state law enforcement officers were there involved. The rationale of that case is that, despite the plain prohibition of Section 605, due regard to federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear indication to that effect. In the instant Page 355 U. S. 102 case, we are not dealing with a state rule of evidence. Although state agents committed the wiretap, we are presented with a federal conviction brought about in part by a violation of federal law, [Footnote 8] in this case, in a federal court. [Footnote 9]Furthermore, confronted as we are by this clear statute, and resting our decision on its provisions, it is neither necessary nor appropriate to discuss by analogy distinctions suggested to be applicable to the Fourth Amendment. [Footnote 10] Section 605 contains an express, absolute prohibition against the divulgence of intercepted communications. Nardone v. United States, 302 U. S. 379, 302 U. S. 382. This case is but another example of the use of wiretapping that was so clearly condemned under other circumstances in the second Nardone decision: [Footnote 11]"To forbid the direct use of [these] methods . . . but to put no curb on their full indirect use would Page 355 U. S. 103 only invite the very methods deemed 'inconsistent with ethical standards and destructive of personal liberty.' What was said in a different context in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 251 U. S. 392, is pertinent here:""The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all."The above principle has for its purpose enhancement of the proper administration of criminal justice. To impute to the statute anything less would give it "a self-defeating, if not disingenuous, purpose." [Footnote 12] Nardone v. United States, 308 U. S. 338, 308 U. S. 340-341.IIAs an alternative argument to support the judgment below, respondent urges that the interception and divulgence in this case were no violation of Section 605, because the wiretap was placed by state agents acting in accordance with the law of New York. The Constitution and statutes of the New York [Footnote 13] provide that an ex parte order authorizing a wiretap may be issued by Page 355 U. S. 104 judges of a certain rank upon the oath or affirmation of certain officials that there is reasonable ground to believe evidence of a crime may be obtained and which identifies the telephone line and the persons who are to be affected thereby. It is undisputed that an order pursuant to that law was issued in this case, and that it was executed according to state law.Respondent does not urge that, constitutionally speaking, Congress is without power to forbid such wiretapping even in the face of a conflicting state law. Cf. Weiss v. United States, 308 U. S. 321, 308 U. S. 327. Rather, the argument is that Congress has not exercised this power, and that Section 605, being general in its terms, should not be deemed to operate to prevent a State from authorizing wiretapping in the exercise of its legitimate police functions. However, we read the Federal Communications Act, and Section 605 in particular, to the contrary.The Federal Communications Act is a comprehensive scheme for the regulation of interstate communication. [Footnote 14] In order to safeguard those interests protected under Section 605, that portion of the statute pertinent to this case applies both to intrastate and to interstate communications. Weiss v. United States, supra. The natural result of respondent's argument is that both interstate and intrastate communication would be removed from the Page 355 U. S. 105 statute's protection because, as this Court noted in Weiss, [Footnote 15] the intercepter cannot discern between the two, and will listen to both. Congress did not intend to place the protections so plainly guaranteed in Section 605 in such a vulnerable position. Respondent points to portions of the Act which place some limited authority in the States over the field of interstate communication. The character of these matters, dealing with aspects of the regulation of utility service to the public, is technical in nature [Footnote 16] in contrast to the broader policy considerations motivating Section 605. [Footnote 17] Moreover, the very existence of these grants of authority to the States underscores the conclusion that had Congress intended to allow the States to make exceptions to Section 605, it would have said so. In light of the above considerations, and keeping in mind this comprehensive scheme of interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that Page 355 U. S. 106 policy. [Footnote 18] Cf. Pennsylvania v. Nelson, 350 U. S. 497; Hill v. Florida, 325 U. S. 538; Hines v. Davidowitz, 312 U. S. 52. [Footnote 19]The judgment is reversed, and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtBenanti v. United States, 355 U.S. 96 (1957)Benanti v. United StatesNo. 231Argued October 29, 1957Decided December 9, 1957355 U.S. 96SyllabusEvidence obtained as a result of wiretapping a telephone by state law enforcement officers pursuant to a state court warrant authorized by state law, and without participation by federal authorities, is not admissible in a criminal trial in a federal court where the existence of the intercepted communication is disclosed to the jury in violation of § 605 of the Federal Communications Act. Pp. 355 U. S. 97-106.1. Evidence obtained by means forbidden by § 605, whether by state or federal agents, is inadmissible in a federal court. Pp. 355 U. S. 99-103.(a) Nardone v. United States, 302 U. S. 379, and 308 U. S. 308 U.S. 338, followed; Schwartz v. Texas, 344 U. S. 199, distinguished. Pp. 355 U. S. 99-103.(b) In this case, § 605 was violated, if not earlier, at least upon disclosure to the jury of the existence of the intercepted communication. Pp. 355 U. S. 100-101.2. A different result is not required by the fact that, in this case, the wiretap was placed by state agents acting in accordance with state law. Pp. 355 U. S. 103-106.(a) In setting out the prohibition of § 605 in plain terms, Congress did not intend to allow state legislation which would contradict that section and the public policy underlying it. Pp. 355 U. S. 104-106.244 F.2d 389, reversed. Page 355 U. S. 97

1999_99-138

JUSTICE THOMAS agreed that this Court's recognition of a fundamental right of parents to direct their children's upbringing resolves this case, but concluded that strict scrutiny is the appropriate standard of review to apply to infringements of fundamental rights. Here, the State lacks a compelling interest in second-guessing a fit parent's decision regarding visitation with third parties. P. 80.O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and GINSBURG and BREYER, JJ., joined. SOUTER, J., post, p. 75, and THOMAS, J., post, p. 80, filed opinions concurring in the judgment. STEVENS, J., post, p. 80, SCALIA, J., post, p. 91, and KENNEDY, J., post, p. 93, filed dissenting opinions.Mark D. Olson argued the cause for petitioners. With him on the briefs was Eric Schnapper.Catherine W Smith argued the cause for respondent.With her on the brief was Howard M. Goodfriend. **Briefs of amici curiae urging reversal were filed for the State of Washington et al. by Christine O. Gregoire, Attorney General of Washington, and Maureen A. Hart, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Earl I. Anzai of Hawaii, Carla J. Stovall of Kansas, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for AARP et al. by Rochelle Bobroff, Bruce Vignery, and Michael Schuster; for Grandparents United for Children's Rights, Inc., by Judith Sperling Newton and Carol M. Gapen; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; and for the Grandparent Caregiver Law Center of the Brookdale Center on Aging.Briefs of amici curiae urging affirmance were filed for the American Academy of Matrimonial Lawyers by Barbara Ellen Handschu and Sanford K. Ain; for the American Center for Law and Justice by Jay Alan Sekulow, Colby May, Vincent McCarthy, and John P. Tuskey; for the American Civil Liberties Union et al. by Matthew A. Coles, Michael P. Adams, Catherine Weiss, and Steven R. Shapiro; for the Coalition for the Restoration of Parental Rights by Karen A. Wyle; for the Institute for Justice et al. by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby, Gregory S. Baylor, and Carl H. Esbeck; for the Lambda Legal Defense60Opinion of O'CONNOR, J.JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JusTICE GINSBURG, and JUSTICE BREYER join.Section 26.10.160(3) of the Revised Code of Washington permits "[a]ny person" to petition a superior court for visitation rights "at any time," and authorizes that court to grant such visitation rights whenever "visitation may serve the best interest of the child." Petitioners Jenifer and Gary Troxel petitioned a Washington Superior Court for the right to visit their grandchildren, Isabelle and Natalie Troxel. Respondent Tommie Granville, the mother of Isabelle and Natalie, opposed the petition. The case ultimately reached the Washington Supreme Court, which held that § 26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.ITommie Granville and Brad Troxel shared a relationship that ended in June 1991. The two never married, but they had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad's parents, and thus the paternal grandparents of Isabelle and Natalie. After Tommie and Brad separated in 1991, Brad lived with his parents and regularly brought his daughters to his parents' home for weekend visitation. Brad committed suicide in May 1993. Although the Troxels at first continued to see Isabelle and Natalie on a regular basis after their son's death, Tommie Granville in-and Education Fund et al. by Patricia M. Logue, Ruth E. Harlow, and Beatrice Dohrn; for the Society of Catholic Social Scientists by Stephen M. Krason and Richard W Garnett; and for Debra Hein by Stuart M. Wilder.Briefs of amici curiae were filed for the Center for Children's Policy Practice & Research at the University of Pennsylvania by Barbara Bennett Woodhouse; for the Domestic Violence Project, Inc.lSafe House (Michigan) et al. by Anne L. Argiroffand Ann L. Routt; for the National Association of Counsel for Children by Robert C. Fellmeth and Joan Hollinger; and for the Northwest Women's Law Center et al. by Cathy J. Zavis.61formed the Troxels in October 1993 that she wished to limit their visitation with her daughters to one short visit per month. In re Smith, 137 Wash. 2d 1, 6, 969 P. 2d 21, 23-24 (1998); In re Troxel, 87 Wash. App. 131, 133, 940 P. 2d 698, 698-699 (1997).In December 1993, the Troxels commenced the present action by filing, in the Washington Superior Court for Skagit County, a petition to obtain visitation rights with Isabelle and Natalie. The Troxels filed their petition under two Washington statutes, Wash. Rev. Code §§ 26.09.240 and 26.10.160(3) (1994). Only the latter statute is at issue in this case. Section 26.10.160(3) provides: "Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances." At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation each summer. Granville did not oppose visitation altogether, but instead asked the court to order one day of visitation per month with no overnight stay. 87 Wash. App., at 133-134, 940 P. 2d, at 699. In 1995, the Superior Court issued an oral ruling and entered a visitation decree ordering visitation one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents' birthdays. 137 Wash. 2d, at 6, 969 P. 2d, at 23; App. to Pet. for Cert. 76a-78a.Granville appealed, during which time she married Kelly Wynn. Before addressing the merits of Granville's appeal, the Washington Court of Appeals remanded the case to the Superior Court for entry of written findings of fact and conclusions of law. 137 Wash. 2d, at 6, 969 P. 2d, at 23. On remand, the Superior Court found that visitation was in Isabelle's and Natalie's best interests:"The Petitioners [the Troxels] are part of a large, central, loving family, all located in this area, and the Peti-62Opinion of O'CONNOR, J.tioners can provide opportunities for the children in the areas of cousins and music." ... The court took into consideration all factors regarding the best interest of the children and considered all the testimony before it. The children would be benefitted from spending quality time with the Petitioners, provided that that time is balanced with time with the childrens' [sic] nuclear family. The court finds that the childrens' [sic] best interests are served by spending time with their mother and stepfather's other six children." App. 70a.Approximately nine months after the Superior Court entered its order on remand, Granville's husband formally adopted Isabelle and Natalie. Id., at 60a-67a.The Washington Court of Appeals reversed the lower court's visitation order and dismissed the Troxels' petition for visitation, holding that nonparents lack standing to seek visitation under § 26.10.160(3) unless a custody action is pending. In the Court of Appeals' view, that limitation on nonparental visitation actions was "consistent with the constitutional restrictions on state interference with parents' fundamental liberty interest in the care, custody, and management of their children." 87 Wash. App., at 135, 940 P. 2d, at 700 (internal quotation marks omitted). Having resolved the case on the statutory ground, however, the Court of Appeals did not expressly pass on Granville's constitutional challenge to the visitation statute. Id., at 138, 940 P. 2d, at 70l.The Washington Supreme Court granted the Troxels' petition for review and, after consolidating their case with two other visitation cases, affirmed. The court disagreed with the Court of Appeals' decision on the statutory issue and found that the plain language of § 26.10.160(3) gave the Troxels standing to seek visitation, irrespective of whether a custody action was pending. 137 Wash. 2d, at 12, 969 P.632d, at 26-27. The Washington Supreme Court nevertheless agreed with the Court of Appeals' ultimate conclusion that the Troxels could not obtain visitation of Isabelle and N atalie pursuant to § 26.10.160(3). The court rested its decision on the Federal Constitution, holding that § 26.10.160(3) unconstitutionally infringes on the fundamental right of parents to rear their children. In the court's view, there were at least two problems with the nonparental visitation statute. First, according to the Washington Supreme Court, the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child. Section 26.10.160(3) fails that standard because it requires no threshold showing of harm. Id., at 15-20, 969 P. 2d, at 28-30. Second, by allowing" 'any person' to petition for forced visitation of a child at 'any time' with the only requirement being that the visitation serve the best interest of the child," the Washington visitation statute sweeps too broadly. Id., at 20, 969 P. 2d, at 30. "It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a 'better' decision." Ibid., 969 P. 2d, at 31. The Washington Supreme Court held that "[p]arents have a right to limit visitation of their children with third persons," and that between parents and judges, "the parents should be the ones to choose whether to expose their children to certain people or ideas." Id., at 21, 969 P. 2d, at 31. Four justices dissented from the Washington Supreme Court's holding on the constitutionality of the statute. Id., at 23-43, 969 P. 2d, at 32-42.We granted certiorari, 527 U. S. 1069 (1999), and now affirm the judgment.IIThe demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household. While many children may have two married parents and64Opinion of O'CONNOR, J.grandparents who visit regularly, many other children are raised in single-parent households. In 1996, children living with only one parent accounted for 28 percent of all children under age 18 in the United States. U. S. Dept. of Commerce, Bureau of Census, Current Population Reports, 1997 Population Profile of the United States 27 (1998). Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million children-or 5.6 percent of all children under age 18-lived in the household of their grandparents. U. S. Dept. of Commerce, Bureau of Census, Current Population Reports, Marital Status and Living Arrangements: March 1998 (Update), p. i (1998).The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States' recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States' nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons-for example, their grandparents. The extension of statutory rights in this area to persons other than a child's parents, however, comes with an obvious cost. For example, the State's recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship. Contrary to JUSTICE STEVENS' accusation, our description of state nonparental visitation statutes in these terms, of course, is not meant to suggest that "children are so much chattel." Post, at 89 (dissenting opinion). Rather, our terminology is intended to highlight the fact that these65statutes can present questions of constitutional import. In this case, we are presented with just such a question. Specifically, we are asked to decide whether § 26.10.160(3), as applied to Tommie Granville and her family, violates the Federal Constitution.The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary66Opinion of O'CONNOR, J.function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166.In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) ("It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'" (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J. R., 442 U. S. 584, 602 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course"); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Glucksberg, supra, at 720 ("In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the 'liberty' specially protected by the Due Process Clause includes the righ[t] ... to direct the education and upbringing of one's children" (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.67Section 26.10.160(3), as applied to Granville and her family in this case, unconstitutionally infringes on that fundamental parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute's text, "[a]ny person may petition the court for visitation rights at any time," and the court may grant such visitation rights whenever "visitation may serve the best interest of the child." § 26.10.160(3) (emphases added). That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent's decision that visitation would not be in the child's best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests. The Washington Supreme Court had the opportunity to give § 26.10.160(3) a narrower reading, but it declined to do so. See, e. g., 137 Wash. 2d, at 5, 969 P. 2d, at 23 ("[The statute] allow[s] any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm"); id., at 20, 969 P. 2d, at 30 ("[The statute] allow[s] 'any person' to petition for forced visitation of a child at 'any time' with the only requirement being that the visitation serve the best interest of the child").68Opinion of O'CONNOR, J.Turning to the facts of this case, the record reveals that the Superior Court's order was based on precisely the type of mere disagreement we have just described and nothing more. The Superior Court's order was not founded on any special factors that might justify the State's interference with Granville's fundamental right to make decisions concerning the rearing of her two daughters. To be sure, this case involves a visitation petition filed by grandparents soon after the death of their son-the father of Isabelle and N atalie-but the combination of several factors here compels our conclusion that § 26.10.160(3), as applied, exceeded the bounds of the Due Process Clause.First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham:"[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations .... The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children." 442 U. S., at 602 (alteration in original) (internal quotation marks and citations omitted).Accordingly, so long as a parent adequately cares for his or her children (i. e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the69best decisions concerning the rearing of that parent's children. See, e. g., Flores, 507 U. S., at 304.The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville's determination of her daughters' best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion of closing arguments, the Superior Court judge explained:"The burden is to show that it is in the best interest of the children to have some visitation and some quality time with their grandparents. I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isn't the case here from what I can tell." Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 19, 1994), p. 213 (hereinafter Verbatim Report).The judge's comments suggest that he presumed the grandparents' request should be granted unless the children would be "impact[ed] adversely." In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. The judge reiterated moments later: "I think [visitation with the Troxels] would be in the best interest of the children and I haven't been shown it is not in [the] best interest of the children." Id., at 214.The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. See Parham, supra, at 602. In that respect, the court's pre-70Opinion of O'CONNOR, J.sumption failed to provide any protection for Granville's fundamental constitutional right to make decisions concerning the rearing of her own daughters. Cf., e. g., Cal. Fam. Code Ann. § 3104(e) (West 1994) (rebuttable presumption that grandparent visitation is not in child's best interest if parents agree that visitation rights should not be granted); Me. Rev. Stat. Ann., Tit. 19A, § 1803(3) (1998) (court may award grandparent visitation if in best interest of child and "would not significantly interfere with any parent-child relationship or with the parent's rightful authority over the child"); Minn. Stat. § 257.022(2)(a)(2) (1998) (court may award grandparent visitation if in best interest of child and "such visitation would not interfere with the parent-child relationship"); Neb. Rev. Stat. § 43-1802(2) (1998) (court must find "by clear and convincing evidence" that grandparent visitation "will not adversely interfere with the parent-child relationship"); R. I. Gen. Laws § 15-5-24.3(a)(2)(v) (Supp. 1999) (grandparent must rebut, by clear and convincing evidence, presumption that parent's decision to refuse grandparent visitation was reasonable); Utah Code Ann. § 30-5-2(2)(e) (1998) (same); Hoffv. Berg, 595 N. W. 2d 285, 291-292 (N. D. 1999) (holding North Dakota grandparent visitation statute unconstitutional because State has no "compelling interest in presuming visitation rights of grandparents to an unmarried minor are in the child's best interests and forcing parents to accede to court-ordered grandparental visitation unless the parents are first able to prove such visitation is not in the best interests of their minor child"). In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.71Finally, we note that there is no allegation that Granville ever sought to cut off visitation entirely. Rather, the present dispute originated when Granville informed the Troxels that she would prefer to restrict their visitation with Isabelle and Natalie to one short visit per month and special holidays. See 87 Wash. App., at 133, 940 P. 2d, at 699; Verbatim Report 12. In the Superior Court proceedings Granville did not oppose visitation but instead asked that the duration of any visitation order be shorter than that requested by the Troxels. While the Troxels requested two weekends per month and two full weeks in the summer, Granville asked the Superior Court to order only one day of visitation per month (with no overnight stay) and participation in the Granville family's holiday celebrations. See 87 Wash. App., at 133, 940 P. 2d, at 699; Verbatim Report 9 ("Right off the bat we'd like to say that our position is that grandparent visitation is in the best interest of the children. It is a matter of how much and how it is going to be structured") (opening statement by Granville's attorney). The Superior Court gave no weight to Granville's having assented to visitation even before the filing of any visitation petition or subsequent court intervention. The court instead rejected Granville's proposal and settled on a middle ground, ordering one weekend of visitation per month, one week in the summer, and time on both of the petitioning grandparents' birthdays. See 87 Wash. App., at 133-134, 940 P. 2d, at 699; Verbatim Report 216-221. Significantly, many other States expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party. See, e. g., Miss. Code Ann. § 93-16-3(2)(a) (1994) (court must find that "the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child"); Ore. Rev. Stat. § 109.121(1)(a)(B) (1997) (court may award visitation if the "custodian of the child has denied the grandparent reasonable opportunity to visit the child"); R. 1. Gen. Laws §§ 15-5-72Opinion of O'CONNOR, J.24.3(a)(2)(iii)-(iv) (Supp. 1999) (court must find that parents prevented grandparent from visiting grandchild and that "there is no other way the petitioner is able to visit his or her grandchild without court intervention").Considered together with the Superior Court's reasons for awarding visitation to the Troxels, the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on Granville's fundamental right to make decisions concerning the care, custody, and control of her two daughters. The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight. In fact, the Superior Court made only two formal findings in support of its visitation order. First, the Troxels "are part of a large, central, loving family, all located in this area, and the [Troxels] can provide opportunities for the children in the areas of cousins and music." App. 70a. Second, "[t]he children would be benefitted from spending quality time with the [Troxels], provided that that time is balanced with time with the childrens' [sic] nuclear family." Ibid. These slender findings, in combination with the court's announced presumption in favor of grandparent visitation and its failure to accord significant weight to Granville's already having offered meaningful visitation to the Troxels, show that this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children's best interests. The Superior Court's announced reason for ordering one week of visitation in the summer demonstrates our conclusion well: "I look back on some personal experiences .... We always spen[t] as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience. Maybe that can, in this family, if that is how it works out." Verbatim Report 220-221. As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right73of parents to make child rearing decisions simply because a state judge believes a "better" decision could be made. Neither the Washington nonparental visitation statute generally-which places no limits on either the persons who may petition for visitation or the circumstances in which such a petition may be granted-nor the Superior Court in this specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, is unconstitutional.Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court-whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with JUSTICE KENNEDY that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best "elaborated with care." Post, at 101 (dissenting opinion). Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter. * See, e. g., Fair-* All 50 States have statutes that provide for grandparent visitation in some form. See Ala. Code § 30-3-4.1 (1989); Alaska Stat. Ann. § 25.20.065 (1998); Ariz. Rev. Stat. Ann. § 25-409 (1994); Ark. Code Ann. § 9-13-103 (1998); Cal. Fam. Code Ann. § 3104 (West 1994); Colo. Rev. Stat. § 19-1-117 (1999); Conn. Gen. Stat. § 46b-59 (1995); Del. Code Ann., Tit. 10, § 1031(7) (1999); Fla. Stat. § 752.01 (1997); Ga. Code Ann. § 19-7-3 (1991); Haw. Rev. Stat. § 571-46.3 (1999); Idaho Code § 32-719 (1999); Ill. Compo Stat., ch. 750, §5/607 (1998); Ind. Code §31-17-5-1 (1999); Iowa Code §598.35 (1999); Kan. Stat. Ann. § 38-129 (1993); Ky. Rev. Stat. Ann. § 405.021 (Baldwin 1990); La. Rev. Stat. Ann. § 9:344 (West Supp. 2000); La. Civ. Code Ann., Art. 136 (West Supp. 2000); Me. Rev. Stat. Ann., Tit. 19A, § 1803 (1998);74Opinion of O'CONNOR, J.banks v. McCarter, 330 Md. 39,49-50,622 A. 2d 121, 126-127 (1993) (interpreting best-interest standard in grandparent visitation statute normally to require court's consideration of certain factors); Williams v. Williams, 256 Va. 19, 501 S. E. 2d 417, 418 (1998) (interpreting Virginia nonparental visitation statute to require finding of harm as condition precedent to awarding visitation).JUSTICE STEVENS criticizes our reliance on what he characterizes as merely "a guess" about the Washington courts' interpretation of § 26.10.160(3). Post, at 82 (dissenting opinion). JUSTICE KENNEDY likewise states that "[m]ore specific guidance should await a case in which a State's highest court has considered all of the facts in the course of elaborating the protection afforded to parents by the laws of the State and by the Constitution itself." Post, at 102 (dissenting opinion). We respectfully disagree. There is no need to hypothesize about how the Washington courts might apply § 26.10.160(3) because the Washington Superior Court did apply the statute in this very case. Like the Washington Supreme Court, then, we are presented with an actual visitation order and the reasons why the Superior Court believedMd. Fam. Law Code Ann. § 9-102 (1999); Mass. Gen. Laws § 119:39D (1996); Mich. Compo Laws Ann. § 722.27b (West Supp. 1999); Minn. Stat. § 257.022 (1998); Miss. Code Ann. § 93-16-3 (1994); Mo. Rev. Stat. § 452.402 (Supp. 1999); Mont. Code Ann. §40-9-102 (1997); Neb. Rev. Stat. §43-1802 (1998); Nev. Rev. Stat. § 125C.050 (Supp. 1999); N. H. Rev. Stat. Ann. §458:17-d (1992); N. J. Stat. Ann. §9:2-7.1 (West Supp. 1999-2000); N. M. Stat. Ann. § 40-9-2 (1999); N. Y. Dom. ReI. Law § 72 (McKinney 1999); N. C. Gen. Stat. §§ 50-13.2, 50-13.2A (1999); N. D. Cent. Code § 14-09-05.1 (1997); Ohio Rev. Code Ann. §§ 3109.051, 3109.11 (Supp. 1999); Okla. Stat., Tit. 10, § 5 (Supp. 1999); Ore. Rev. Stat. § 109.121 (1997); 23 Pa. Cons. Stat. §§ 5311-5313 (1991); R. 1. Gen. Laws §§ 15-5-24 to 15-5-24.3 (Supp. 1999); S. C. Code Ann. §20-7-420(33) (Supp. 1999); S. D. Codified Laws §25-4-52 (1999); Tenn. Code Ann. §§ 36-6-306, 36-6-307 (Supp. 1999); Tex. Fam. Code Ann. § 153.433 (Supp. 2000); Utah Code Ann. § 30-5-2 (1998); Vt. Stat. Ann., Tit. 15, §§ 1011-1013 (1989); Va. Code Ann. §20-124.2 (1995); w. Va. Code §§48-2B-1 to 48-2B-7 (1999); Wis. Stat. §§767.245, 880.155 (1993-1994); Wyo. Stat. Ann. §20-7-101 (1999).75entry of the order was appropriate in this case. Faced with the Superior Court's application of § 26.10.160(3) to Granville and her family, the Washington Supreme Court chose not to give the statute a narrower construction. Rather, that court gave § 26.10.160(3) a literal and expansive interpretation. As we have explained, that broad construction plainly encompassed the Superior Court's application of the statute. See supra, at 67.There is thus no reason to remand the case for further proceedings in the Washington Supreme Court. As JusTICE KENNEDY recognizes, the burden of litigating a domestic relations proceeding can itself be "so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated." Post, at 101. In this case, the litigation costs incurred by Granville on her trip through the Washington court system and to this Court are without a doubt already substantial. As we have explained, it is apparent that the entry of the visitation order in this case violated the Constitution. We should say so now, without forcing the parties into additional litigation that would further burden Granville's parental right. We therefore hold that the application of § 26.10.160(3) to Granville and her family violated her due process right to make decisions concerning the care, custody, and control of her daughters.Accordingly, the judgment of the Washington Supreme Court is affirmed.It is so ordered

OCTOBER TERM, 1999SyllabusTROXEL ET VIR v. GRANVILLECERTIORARI TO THE SUPREME COURT OF WASHINGTONNo. 99-138. Argued January 12, 2000-Decided June 5, 2000Washington Rev. Code §26.1O.160(3) permits "[a]ny person" to petition for visitation rights "at any time" and authorizes state superior courts to grant such rights whenever visitation may serve a child's best interest. Petitioners Troxel petitioned for the right to visit their deceased son's daughters. Respondent Granville, the girls' mother, did not oppose all visitation, but objected to the amount sought by the Troxels. The Superior Court ordered more visitation than Granville desired, and she appealed. The State Court of Appeals reversed and dismissed the Troxels' petition. In affirming, the State Supreme Court held, inter alia, that § 26.10.160(3) unconstitutionally infringes on parents' fundamental right to rear their children. Reasoning that the Federal Constitution permits a State to interfere with this right only to prevent harm or potential harm to the child, it found that § 26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any person to petition at any time with the only requirement being that the visitation serve the best interest of the child.Held: The judgment is affirmed.137 Wash. 2d 1, 969 P. 2d 21, affirmed.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG, and JUSTICE BREYER, concluded that § 26.10.160(3), as applied to Granville and her family, violates her due process right to make decisions concerning the care, custody, and control of her daughters. Pp.63-75.(a) The Fourteenth Amendment's Due Process Clause has a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests," Washington v. Glucksberg, 521 U. S. 702, 720, including parents' fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645, 651. Pp.63-66.(b) Washington's breathtakingly broad statute effectively permits a court to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interest. A parent's estimation of the child's best interest is accorded no deference. The State Supreme Court had the oppor-58Syllabustunity, but declined, to give § 26.10.160(3) a narrower reading. A combination of several factors compels the conclusion that § 26.10.160(3), as applied here, exceeded the bounds of the Due Process Clause. First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. There is a presumption that fit parents act in their children's best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents' ability to make the best decisions regarding their children, see, e. g., Reno v. Flores, 507 U. S. 292, 304. The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granville's determination of her daughters' best interests. More importantly, that court appears to have applied the opposite presumption, favoring grandparent visitation. In effect, it placed on Granville the burden of disproving that visitation would be in her daughters' best interest and thus failed to provide any protection for her fundamental right. The court also gave no weight to Granville's having assented to visitation even before the filing of the petition or subsequent court intervention. These factors, when considered with the Superior Court's slender findings, show that this case involves nothing more than a simple disagreement between the court and Granville concerning her children's best interests, and that the visitation order was an unconstitutional infringement on Granville's right to make decisions regarding the rearing of her children. Pp. 67-73.(c) Because the instant decision rests on § 26.10.160(3)'s sweeping breadth and its application here, there is no need to consider the question whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation or to decide the precise scope of the parental due process right in the visitation context. There is also no reason to remand this case for further proceedings. The visitation order clearly violated the Constitution, and the parties should not be forced into additional litigation that would further burden Granville's parental right. Pp. 73-75.JUSTICE SOUTER concluded that the Washington Supreme Court's second reason for invalidating its own state statute-that it sweeps too broadly in authorizing any person at any time to request (and a judge to award) visitation rights, subject only to the State's particular bestinterests standard-is consistent with this Court's prior cases. This ends the case, and there is no need to decide whether harm is required or to consider the precise scope of a parent's right or its necessary protections. pp. 75-79.59Full Text of Opinion

1972_71-364

MR. JUSTICE REHNQUIST delivered the opinion of the Court.Acting pursuant to the mandate of its newly revised state constitution, [Footnote 1] the Virginia General Assembly enacted statutes apportioning the State for the election of members of its House of Delegates [Footnote 2] and Senate. [Footnote 3] Two suits were brought challenging the constitutionality of the House redistricting statute on the grounds that there were impermissible population variances in the districts, that the multi-member districts diluted representation, [Footnote 4] and that the use of multi-member districts Page 410 U. S. 318 constituted racial gerrymandering. [Footnote 5] The Senate redistricting statute was attacked in a separate suit, which alleged that the city of Norfolk was unconstitutionally split into three districts, allocating Navy personnel "home-ported" in Norfolk to one district and isolating Negro voters in one district. Three three-judge district courts were convened to hear the suits pursuant to 28 U.S.C. §§ 2281 and 2284. The suits were consolidated and heard by the four judges who variously made up the three three-judge panels.The consolidated District Court entered an interlocutory order that, inter alia, declared the legislative reapportionment statutes unconstitutional and enjoined the holding of elections in electoral districts other than those established by the court's opinion. Howell v. Mahan, 330 F. Supp. 1138, 1150 (ED Va.1971). Appellant, the Secretary of the State Board of Elections and its members and the city of Virginia Beach, have appealed directly to this Court from those portions of the court's order, invoking our jurisdiction under 28 U.S.C. § 1253.IThe statute apportioning the House provided for a combination of 52 single member, multi-member, and floater delegate districts from which 100 delegates would Page 410 U. S. 319 be elected. As found by the lower court, the ideal district in Virginia consisted of 46,485 persons per delegate, and the maximum percentage variation from that ideal under the Act was 16.4% -- the 12th district being overrepresented by 6.8% and the 16th district being underrepresented by 9.6%. [Footnote 6] The population ratio between these two districts was 1.18 to 1. The average percentage variance under the plan was +3.89%, and the minimum population percentage necessary to elect a majority of the House was 49.29%. Of the 52 districts, 35 were within 4% of perfection and nine exceeded a 6% variance from the ideal. With one exception, the delegate districts followed political jurisdictional lines of the counties and cities. That exception, Fairfax County, was allotted 10 delegates but was divided into two five-member districts.Relying on Kirkpatrick v. Preisler, 394 U. S. 526 (1969), Wells v. Rockefeller, 394 U. S. 542 (1969), and Reynolds v. Sims, 377 U. S. 533 (1964), the District Court concluded that the 16.4% variation was sufficient to condemn the House statute under the "one person, one vote" doctrine. While it noted that the variances were traceable to the desire of the General Assembly to maintain the integrity of traditional county and city boundaries, and that it was impossible to draft district lines to overcome unconstitutional disparities and still maintain Page 410 U. S. 320 such integrity, it held that the State proved no governmental necessity for strictly adhering to political subdivision lines. Accordingly, it undertook its own redistricting and devised a plan having a percentage variation of slightly over 10% from the ideal district, a percentage it believed came "within passable constitutional limits as a good faith effort to achieve absolute equality.' Kirkpatrick v. Preisler. . . ." Howell v. Mahan, 330 F. Supp. at 1147-1148.Appellants contend that the District Court's reliance on Kirkpatrick v. Preisler, supra, and Wells v. Rockefeller, supra, in striking down the General Assembly's reapportionment plan was erroneous, and that proper application of the standards enunciated in Reynolds v. Sims, supra, would have resulted in a finding that the statute was constitutional.In Kirkpatrick v. Preisler and Wells v. Rockefeller, this Court invalidated state reapportionment statutes for federal congressional districts having maximum percentage deviations of 5.97% and 13.1%, respectively. The express purpose of these cases was to elucidate the standard first announced in the holding of Wesberry v. Sanders, 376 U. S. 1 (1964), that"the command of Art. I, § 2, that Representatives be chosen 'by the People of the several States' means that, as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's."Id. at 376 U.S. 7-8 (footnotes omitted). And it was concluded that that command"permits only the limited population variances which are unavoidable despite a good faith effort to achieve absolute equality, or for which justification is shown."Kirkpatrick v. Preisler, supra, at 394 U. S. 531. The principal question thus presented for review is whether or not the Equal Protection Clause of the Fourteenth Amendment likewise permits only "the limited population variances which are unavoidable despite a good Page 410 U. S. 321 faith effort to achieve absolute equality" in the context of state legislative reapportionment. [Footnote 7]This Court first recognized that the Equal Protection Clause requires both houses of a bicameral state legislature to be apportioned substantially on a population basis in Reynolds v. Sims, supra. In so doing, it suggested that in the implementation of the basic constitutional principle -- equality of population among the districts -- more flexibility was constitutionally permissible with respect to state legislative reapportionment than in congressional redistricting. Id. at 394 U. S. 578. Consideration was given to the fact that, almost invariably, there is a significantly larger number of seats in state legislative bodies to be distributed within a State than congressional seats, and that, therefore, it may be feasible for a State to use political subdivision lines to a greater extent in establishing state legislative districts than congressional districts while still affording adequate state-wide representation. Ibid. Another possible justification for deviation from population-based representation in state legislatures was stated to be:"[T]hat of insuring some voice to political subdivisions, as political subdivisions. Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature's activity involves the enactment of so-called local legislation, directed only Page 410 U. S. 322 to the concerns of particular political subdivisions. And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering. . . ."Id. at 394 U. S. 580-581. The Court reiterated that the overriding objective in reapportionment must be"substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State."Id. at 394 U. S. 579.By contrast, the Court in Wesberry v. Sanders, supra, recognized no excuse for the failure to meet the objective of equal representation for equal numbers of people in congressional districting other than the practical impossibility of drawing equal districts with mathematical precision. Thus, whereas population alone has been the sole criterion of constitutionality in congressional redistricting under Art. I, § 2, broader latitude has been afforded the States under the Equal Protection Clause in state legislative redistricting because of the considerations enumerated in Reynolds v. Sims, supra. The dichotomy between the two lines of cases has consistently been maintained. In Kirkpatrick v. Preisler, for example, one asserted justification for population variances was that they were necessarily a result of the State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing political subdivision boundaries. This argument was rejected in the congressional context. But in Abate v. Mundt, 403 U. S. 182 (1971), an apportionment for a county legislature having a maximum deviation from equality of 11.9% was upheld in the face of an equal protection challenge, in part because New York had a long history of maintaining the integrity of existing local government units within the county. Page 410 U. S. 323Application of the "absolute equality" test of Kirkpatrick and Wells to state legislative redistricting may impair the normal functioning of state and local governments. Such an effect is readily apparent from an analysis of the District Court's plan in this case. Under Art. VII, §§ 2 and 3 of Virginia's Constitution, the General Assembly is given extensive power to enact special legislation regarding the organization of, and the exercise of governmental powers by, counties, cities, towns, and other political subdivisions. The statute redistricting the House of Delegates consistently sought to avoid the fragmentation of such subdivisions, assertedly to afford them a voice in Richmond to seek such local legislation.The court's reapportionment, based on its application of Kirkpatrick and Wells, resulted in a maximum deviation of slightly over 10%, [Footnote 8] as compared with the roughly 16% maximum variation found in the plan adopted by the legislature. But to achieve even this limit of variation, the court's plan extended single and multi-member districts across subdivision lines in 12 instances, substituting population equality for subdivision representation. Scott County, for example, under the Assembly's plan was placed in the first district, and its population of 24,376 voted with the 76,346 persons in Dickinson, Lee, and Wise Counties for two delegates. The district thus established deviated by 8.3% from the ideal. The court transferred five of Scott County's enumeration districts, containing 6,063 persons, to the contiguous second district composed of the city of Bristol, and Smyth and Washington Counties, population 87,041. Scott County's representation was thereby substantially reduced in the first district, and all but nonexistent in the second district. Page 410 U. S. 324 The opportunity of its voters to champion local legislation relating to Scott County is virtually nil. The countervailing benefit resulting from the court's readjustment is the fact that the first district's deviation from the ideal is now reduced to 1.8%.The city of Virginia Beach saw its position deteriorate in a similar manner under the court-imposed plan. Under the legislative plan, Virginia Beach constituted the 40th district and was allocated three delegates for its population of 172,106. The resulting underrepresentation was cured by providing a floterial district, the 42d, which also included portions of the cities of Chesapeake and Portsmouth. Under the court's plan, the 42d district was dissolved. Of its 32,651 persons that constituted the deviation from the ideal for the 40th district, 3,515 were placed in the 40th, and 29,136 were transferred to Norfolk's 39th district. The 39th district is a multi-member district that includes the 307,951 persons who make up the population of the city of Norfolk. Thus, those Virginia Beach residents who cast their vote in the 39th district amount to only 8.6% of that district's population. In terms of practical politics, Virginia Beach complains that such representation is no representation at all so far as local legislation is concerned, and that those 29,136 people transferred to the 39th district have in that respect been effectively disenfranchised.We conclude, therefore, that the constitutionality of Virginia's legislative redistricting plan was not to be judged by the more stringent standards that Kirkpatrick and Wells make applicable to congressional reapportionment, but instead by the equal protection test enunciated in Reynolds v. Sims, supra. We reaffirm its holding that"the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal Page 410 U. S. 325 population as is practicable."377 U.S. at 377 U.S. 577. We likewise reaffirm its conclusion that"[s]o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature."Id. at 377 U.S. 579.The asserted justification for the divergences in this case -- the State's policy of maintaining the integrity of political subdivision lines -- is not a new one to this Court. In Davis v. Mann, 377 U. S. 678, 377 U. S. 686 (1964), it was noted:"Because cities and counties have consistently not been split or divided for purposes of legislative representation, multi-member districts have been utilized for cities and counties whose populations entitle them to more than a single representative. . . . And, because of a tradition of respecting the integrity of the boundaries of cities and counties in drawing district lines, districts have been constructed only of combinations of counties and cities and not by pieces of them. . . ."The then-existing substantial deviation in the apportionment of both Houses defeated the constitutionality of Virginia's districting statutes in that case, but the possibility of maintaining the integrity of political subdivision lines in districting was not precluded so long as there existed"such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination."Roman v. Sincock, 377 U. S. 695, 377 U. S. 710 (1964).We are not prepared to say that the decision of the people of Virginia to grant the General Assembly the power to enact local legislation dealing with the political Page 410 U. S. 326 subdivisions is irrational. And if that be so, the decision of the General Assembly to provide representation to subdivisions qua subdivisions in order to implement that constitutional power is likewise valid when measured against the Equal Protection Clause of the Fourteenth Amendment. The inquiry then becomes whether it can reasonably be said that the state policy urged by Virginia to justify the divergences in the legislative reapportionment plan of the House is, indeed, furthered by the plan adopted by the legislature, and whether, if so justified, the divergences are also within tolerable limits. For a State's policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality.There was uncontradicted evidence offered in the District Court to the effect that the legislature's plan, subject to minor qualifications, "produces the minimum deviation above and below the norm, keeping intact political boundaries. . . ." (Defendants' Exhibit 8.) That court itself recognized that equality was impossible if political boundaries were to be kept intact in the process of districting. But it went on to hold that, since the State "proved no governmental necessity for strictly adhering to political subdivision lines," the legislative plan was constitutionally invalid. Howell v. Mahan, supra, at 1140. As we noted above, however, the proper equal protection test is not framed in terms of "governmental necessity," but instead in terms of a claim that a State may "rationally consider." Reynolds v. Sims, supra, at 377 U.S. 580-581.The District Court intimated that one reason for rejecting the justification for divergences offered by the State was its conclusion that the legislature had not, in fact, implemented its asserted policy, "as witness the division of Fairfax County." Howell v. Mahan, supra, Page 410 U. S. 327 at 1140. But while Fairfax County was divided, it was not fragmented. And had it not been divided, there would have been one ten-member district in Fairfax County, a result that this Court might we'll have been thought to disfavor as a result of its opinion in Connor v. Johnson, 402 U. S. 690, 402 U. S. 692 (1971). The State can scarcely be condemned for simultaneously attempting to move toward smaller districts and to maintain the integrity of its political subdivision lines.Appellees argue that the traditional adherence to such lines is no longer a justification since the Virginia constitutional provision regarding reapportionment, Art, II, § 6, supra, n 1, neither specifically provides for apportionment along political subdivision lines nor draws a distinction between the standards for congressional and legislative districting. The standard in each case is described in the "as nearly as is practicable" language used in Wesberry v. Sanders, supra, and Reynolds v. Sims, supra. But, as we have previously indicated, the latitude afforded to States in legislative redistricting is somewhat broader than that afforded to them in congressional redistricting. Virginia was free as a matter of federal constitutional law to construe the mandate of its Constitution more liberally in the case of legislative redistricting than in the case of congressional redistricting, and the plan adopted by the legislature indicates that it has done so.We also reject the argument that, because the State is not adhering to its tradition of respecting the boundaries of political subdivisions in congressional and State Senate redistricting, it may not do so in the case of redistricting for the House of Delegates. Nothing in the fact that Virginia has followed the constitutional mandate of this Court in the case of congressional redistricting, or that it has chosen in some instances to ignore political subdivision lines in the case of the State Senate, Page 410 U. S. 328 detracts from the validity of its consistently applied policy to have at least one house of its bicameral legislature responsive to voters of political subdivisions as such. [Footnote 9]We hold that the legislature's plan for apportionment of the House of Delegates may reasonably be said to advance the rational state policy of respecting the boundaries of political subdivisions. The remaining inquiry is whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits. We conclude that they do not.The most stringent mathematical standard that has heretofore been imposed upon an apportionment plan for a state legislature by this Court was enunciated in Swann v. Adams, 385 U. S. 440 (1967), where a scheme having a maximum deviation of 26% was disapproved. In that case, the State of Florida offered no evidence at the trial level to support the challenged variations with respect to either the House or Senate. Id. at 385 U. S. 446. The Court emphasized there that "the fact that a 10% or 15% variation from the norm is approved in one State has little bearing on the validity of a similar variation in another State." Id. at 385 U. S. 445. We therefore find the citations to numerous cases decided by state and lower Page 410 U. S. 329 federal courts to be of limited use in determining the constitutionality of Virginia's statute. The relatively minor variations present in the Virginia plan contrast sharply with the larger variations in state legislative reapportionment plans that have been struck down by previous decisions of this Court. See, e.g., Reynolds v. Sims, supra; Swann v. Adams, supra; and Kilgarlin v. Hill, 386 U. S. 120 (1967).Neither courts nor legislatures are furnished any specialized calipers that enable them to extract from the general language of the Equal Protection Clause of the Fourteenth Amendment the mathematical formula that establishes what range of percentage deviations is permissible, and what is not. The 16-odd percent maximum deviation that the District Court found to exist in the legislative plan for the reapportionment of the House is substantially less than the percentage deviations that have been found invalid in the previous decisions of this Court. While this percentage may well approach tolerable limits, we do not believe it exceeds them. Virginia has not sacrificed substantial equality to justifiable deviations.The policy of maintaining the integrity of political subdivision lines in the process of reapportioning a state legislature, the policy consistently advanced by Virginia as a justification for disparities in population among districts that elect members to the House of Delegates, is a rational one. It can reasonably be said, upon examination of the legislative plan, that it does in fact, advance that policy. The population disparities that are permitted thereunder result in a maximum percentage deviation that we hold to be within tolerable constitutional limits. We, therefore, hold the General Assembly's plan for the reapportionment of the House of Delegates constitutional and reverse the District Court's conclusion Page 410 U. S. 330 to the contrary. We also affirm Weinberg v. Prichard et al., No. 71-444, held pending this disposition. [Footnote 10]IIThe General Assembly divided the State into 40 single member senatorial districts. Under the plan, a portion of the city of Virginia Beach was added to the city of Norfolk and the entire area was divided into three single member districts, which the court below found conformed almost ideally, numerically, to the "one person, one vote" principle. But all naval personnel "home-ported" at the U.S. Naval Station, Norfolk, about 36,700 persons, were assigned to the Fifth Senatorial District because that is where they were counted on official census tracts. [Footnote 11] It was undisputed that only about 8,100 of such Page 410 U. S. 331 personnel lived aboard vessels assigned to the census tract within the Fifth District. The court had before it evidence that about 18,000 lived outside the Fifth District but within the Norfolk and Virginia Beach areas that, if true, indicated a malapportionment with respect to such personnel. [Footnote 12] Lacking survey data sufficiently precise to permit the creation of three single member districts more closely representing the actual population, the court corrected the disparities by establishing one multi-member district composed of the Fifth, Sixth, and Seventh Districts, encompassing the city of Norfolk and a portion of Virginia Beach. Howell v. Mahan, supra.Appellants charge that the District Court was not justified in overturning the districts established by the General Assembly, since the Assembly validly used census tracts in apportioning the area and that the imposition by the court of a multi-member district contravened the valid legislative policy in favor of single member districts. We conclude that under the unusual, if not unique, circumstances in this case the District Court did not err in declining to accord conclusive weight to the legislative reliance on census figures. That court justifiably found Page 410 U. S. 332 that with respect to the three single member districts in question, the legislative plan resulted in both significant population disparities and the assignment of military personnel to vote in districts in which they admittedly did not reside. Since discriminatory treatment of military personnel in legislative reapportionment is constitutionally impermissible, Davis v. Mann, supra, at 377 U. S. 691, we hold that the interim relief granted by the District Court as to the State Senate was within the bounds of the discretion confided to it.Application of interim remedial techniques in voting rights cases has largely been left to the district courts. Reynolds v. Sims, supra, at 377 U.S. 585. The courts are bound to apply equitable considerations and in Reynolds it was stated that"[i]n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws. . . ."Ibid.The court below was faced with severe time pressures. The reapportionment plans were first forwarded to the Attorney General on March 1, 1971. By April 7, these three cases had been filed and consolidated. The first hearing was scheduled for May 24, but on May 7, the Attorney General interposed his objections pursuant to the Voting Rights Act. As a result, the May 24 hearing was largely devoted to arguing about the effect of such objections and after that hearing, the court directed the cases to be continued until June 15. It also postponed the primary elections, which had been set for June 8, until September 14. The cases were finally heard on June 16, and the court's interlocutory order was entered on July 2, just two weeks prior to the revised July 16 filing deadline for primary candidates.Prior to the time the court acted, this Court had handed down Whitcomb v. Chavis, 403 U. S. 124 (1971), recognizing that multi-member districts were not per se Page 410 U. S. 333 violative of the Equal Protection Clause. The court conscientiously considered both the legislative policy and this Court's admonition in Connor v. Johnson, supra, that in fashioning apportionment remedies, the use of single-member districts is preferred. But it was confronted with plausible evidence of substantial malapportionment with respect to military personnel, the mandate of this Court that voting discrimination against military personnel is constitutionally impermissible, Davis v. Mann, supra, at 377 U. S. 691-692, and the fear that too much delay would have seriously disrupted the fall 1971 elections. Facing as it did this singular combination of unique factors, we cannot say that the District Court abused its discretion in fashioning the interim remedy of combining the three districts into one multi-member district. [Footnote 13] We, therefore, affirm the order of that Court insofar as it dealt with the State Senate.Affirmed

U.S. Supreme CourtMahan v. Howell, 410 U.S. 315 (1973)Mahan v. HowellNo. 71-364Argued December 12, 1972Decided February 21, 1973*410 U.S. 315SyllabusThe Virginia General Assembly in 1971 reapportioned the State for the election of state delegates and senators. The apportionment statutes, on challenge by appellees, were invalidated by a three-judge District Court, which ruled the reapportionments impermissible violations of the "one person, one vote" principle. The court substituted its own electoral districts, reducing to about 10% the percentage variation from the ideal district from the approximately 16% variation permitted by the legislature's plan but, contrary to that plan, in many instances not following political subdivision lines.Held:1. Reapportionment of electoral districts for Virginia's House of Delegates complied with the Equal Protection Clause of the Fourteenth Amendment, since the legislature's maximum population percentage variation, which was not excessive, resulted from the State's rational objective of preserving the integrity of political subdivision lines. Pp. 410 U. S. 320-330.(a) In the implementation of the basic constitutional principle that both houses of a bicameral state legislature be apportioned substantially on a population basis (Reynolds v. Sims, 377 U. S. 533), more flexibility is permissible with respect to state legislative reapportionment than with respect to congressional redistricting. Pp. 410 U. S. 320-325.(b) The State's objective of preserving the integrity of political subdivision lines is rational, since it furthers the legislative purpose of facilitating enactment of statutes of purely local concern and preserves for the voters in the political subdivisions a voice in the state legislature on local matters. Pp. 410 U. S. 325-328.(c) Given the wider constitutional latitude in state legislative reapportionment, the population disparities reflected in the legislature's Page 410 U. S. 316 maximum percentage deviation are within tolerable constitutional limits. Pp. 410 U. S. 328-330.2. The establishment by the legislature of three numerically ideal senatorial electoral districts by assigning to one of them about 36,700 persons who were "home-ported" at the U.S. Naval Station, Norfolk, regardless of where they actually resided, because that is where they were counted on official census tracts, was constitutionally impermissible discrimination against military personnel, cf. Davis v. Mann, 377 U. S. 678; and the District Court, which was under severe time pressures, did not abuse its discretion in prescribing an interim plan of combining the three districts into one multi-member district. Pp. 410 U. S. 330-333.330 F. Supp. 1138, affirmed in part, reversed in part.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which Douglas and MARSHALL, JJ., joined, post, p. 410 U. S. 333. POWELL, J., took no part in the consideration or decision of the cases. Page 410 U. S. 317

1990_90-34

JUSTICE MARSHALL delivered the opinion of the Court.This case raises the question whether admiralty jurisdiction extends to claims arising from agency contracts. In Minturn v. Maynard, 17 How. 477 (1855), this Court held that an agent who had advanced funds for repairs and supplies necessary for a vessel could not bring a claim in admiralty Page 500 U. S. 605 against the vessel's owners. Minturn has been interpreted by some lower courts as establishing a per se rule excluding agency contracts from admiralty. We now consider whether Minturn should be overruled.IThis case arose over an unpaid bill for fuels acquired for the vessel, Green Harbour ex William Hooper (Hooper). The Hooper is owned by respondent Central Gulf Lines, Inc. (Central Gulf) and was chartered by the Waterman Steamship Corporation (Waterman) for use in maritime commerce. Petitioner Exxon Corporation (Exxon) was Waterman's exclusive worldwide supplier of gas and bunker fuel oil for some 40 years.In 1983, Waterman and Exxon negotiated a marine fuel requirements contract. Under the terms of the contract, upon request, Exxon would supply Waterman's vessels with marine fuels when the vessels called at ports where Exxon could supply the fuels directly. Alternatively, in ports where Exxon had to rely on local suppliers, Exxon would arrange for the local supplier to provide Waterman vessels with fuel. In such cases, Exxon would pay the local supplier for the fuel and then invoice Waterman. Thus, while Exxon's contractual obligation was to provide Waterman's vessels with fuel when Waterman placed an order, it met that obligation sometimes in the capacity of "seller" and other times in the capacity of "agent."In the transaction at issue here, Exxon acted as Waterman's agent, procuring bunker fuel for the Hooper from Arabian Marine Operating Co. (Arabian Marine) of Jeddah, Saudi Arabia. In October, 1983, Arabian Marine delivered over 4,000 tons of fuel to the Hooper in Jeddah and invoiced Exxon for the cost of the fuel. Exxon paid for the fuel and invoiced Waterman, in turn, for $763,644. Shortly thereafter, Waterman sought reorganization under Chapter 11 of the Bankruptcy Code; Waterman never paid the full amount Page 500 U. S. 606 of the fuel bill. During the reorganization proceedings, Central Gulf agreed to assume personal liability for the unpaid bill if a court were to hold the Hooper liable in rem for that cost.Subsequently, Exxon commenced this litigation in federal district court against Central Gulf in personam and against the Hooper in rem. Exxon claimed to have a maritime lien on the Hooper under the Federal Maritime Lien Act, 46 U.S.C. § 971 (1982 ed.). [Footnote 1] The District Court noted that"[a] prerequisite to the existence of a maritime lien based on a breach of contract is that the subject matter of the contract must fall within the admiralty jurisdiction."707 F. Supp. 155, 158 (SDNY 1989). Relying on the Second Circuit's decision in Peralta Shipping Corp. v. Smith & Johnson (Shipping) Corp., 739 F.2d 798 (CA2 1984), cert. denied, 470 U. S. 1031 (1985), the District Court concluded that it did not have admiralty jurisdiction over the claim. See 707 F. Supp. at 159-161. In Peralta, the Second Circuit held that it was constrained by this Court's decision in Minturn v. Maynard, supra, and by those Second Circuit cases faithfully adhering to Minturn, to follow a per se rule excluding agency contracts from admiralty jurisdiction. See Peralta, supra, at 802-804. The District Court also rejected the argument that Exxon should be excepted from the Minturn rule because it had provided credit necessary for the Hooper to purchase the fuel, and thus was more than a mere agent. To create such an exception, the District Court reasoned, "would blur, if not obliterate, a rather clear admiralty distinction.'" 707 F. Supp. at 161, quoting Peralta, supra, at 804. [Footnote 2] Page 500 U. S. 607The District Court denied Exxon's motion for reconsideration. The court first rejected Exxon's claim that, in procuring fuel for Waterman, it was acting as a seller, rather than an agent. Additionally, the District Court declined Exxon's invitation to limit the Minturn rule to either general agency or preliminary service contracts. [Footnote 3] Finally, the District Court determined that, even if it were to limit Minturn, Exxon's contract with Waterman was both a general agency contract and a preliminary services contract, and thus was excluded from admiralty jurisdiction under either exception. See 717 F. Supp. 1029, 1031-1037 (SDNY 1989).The Court of Appeals for the Second Circuit summarily affirmed the judgment of the District Court "substantially for the reasons given" in the District Court's two opinions. App. to Pet. for Cert. A2, judgt. order reported at 904 F.2d 33 (1990). We granted certiorari to resolve a conflict among the Circuits as to the scope of the Minturn decision [Footnote 4] and to Page 500 U. S. 608 consider whether Minturn should be overruled. 498 U.S. 1045 (1991). Today we are constrained to overrule Minturn and hold that there is no per se exception of agency contracts from admiralty jurisdiction.IISection 1333(1) of Title 28 U.S.C. grants federal district courts jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction." In determining the boundaries of admiralty jurisdiction, we look to the purpose of the grant. See Insurance Co. v. Dunham, 11 Wall. 1, 78 U. S. 24 (1871). As we recently reiterated, the "fundamental interest giving rise to maritime jurisdiction is the protection of maritime commerce.'" Sisson v. Ruby, 497 U. S. 358, 497 U. S. 367 (1990), quoting Foremost Ins. Co. v. Richardson, 457 U. S. 668, 457 U. S. 674 (1982). This case requires us to determine whether the limits set upon admiralty jurisdiction in Minturn are consistent with that interest.The decision in Minturn has confounded many, and we think the character of that three-paragraph opinion is best appreciated when viewed in its entirety:"The respondents were sued in admiralty, by process in personam. The libel charges that they are owners of the steamboat Gold Hunter; that they had appointed the libellant their general agent or broker; and exhibits a bill, showing a balance of accounts due libellant for money paid, laid out, and expended for the use of respondents, Page 500 U. S. 609 in paying for supplies, repairs, and advertising of the steamboat, and numerous other charges, together with commissions on the disbursements, &c.""The court below very properly dismissed the libel for want of jurisdiction. There is nothing in the nature of a maritime contract in the case. The libel shows nothing but a demand for a balance of accounts between agent and principal, for which an action of assumpsit, in a common law court, is the proper remedy. That the money advanced and paid for respondents was, in whole or in part, to pay bills due by a steamboat for repairs or supplies will not make the transaction maritime, or give the libellant a remedy in admiralty. Nor does the local law of California, which authorizes an attachment of vessels for supplies or repairs, extend to the balance of accounts between agent and principal who have never dealt on the credit, pledge, or security of the vessel.""The case is too plain for argument."17 How. 58 U. S. 477. While disagreeing over what sorts of agency contracts fall within Minturn's ambit, lower courts have uniformly agreed that Minturn states a per se rule barring at least some classes of agency contracts from admiralty. See n 4, supra. [Footnote 5]Minturn appears to have rested on two rationales: (1) that the agent's claim was nothing more than a "demand for a balance of accounts" which could be remedied at common law through an action of assumpsit, and (2) that the agent had no contractual or legal right to advance monies "on the credit, pledge, or security of the vessel." The first rationale appears to be an application of the then-accepted rule that "the Page 500 U. S. 610 admiralty has no jurisdiction at all in matters of account between part owners," The Steamboat Orleans v. Phoebus, 11 Pet. 175, 36 U. S. 182 (1837), or in actions in assumpsit for the wrongful withholding of money, see Archawski v. Hanioti, 350 U. S. 532, 350 U. S. 534 (1956) ("A line of authorities emerged to the effect that admiralty had no jurisdiction to grant relief in such cases"). The second rationale appears to be premised on the then-accepted rule that a contract would not be deemed maritime absent a "hypothecation" or a pledge by the vessel's owner of the vessel as security for debts created pursuant to the contract. In other words, to sue in admiralty on a contract, the claimant had to have some form of a lien interest in the vessel, even if the action was one in personam. See e.g., Gardner v. The New Jersey, 9 F. Cas. 1192, 1195 (No. 5233) (D. Pa.1806); see generally Note, 17 Conn.L.Rev. 595, 597-598 (1985).Both of these rationales have since been discredited. In Archawski, supra, the Court held that an action cognizable as assumpsit would no longer be automatically excluded from admiralty. Rather,"admiralty has jurisdiction, even where the libel reads like indebitatus assumpsit at common law, provided the unjust enrichment arose as a result of the breach of a maritime contract."350 U.S. at 350 U. S. 536. Only 15 years after Minturn was decided, the Court also cast considerable doubt on the "hypothecation requirement." In Insurance Co. v. Dunham, 11 Wall. 1 (1871), the Court explained that, in determining whether a contract falls within admiralty,"the true criterion is the nature and subject matter of the contract, as whether it was a maritime contract, having reference to maritime service or maritime transactions."Id. at 78 U. S. 26. Several subsequent cases followed this edict of Dunham and rejected the relevance of the hypothecation requirement to establishing admiralty jurisdiction. See North Pacific S.S. Co. v. Hall Bros. Marine Railway & Shipbuilding Page 500 U. S. 611 Co., 249 U. S. 119, 249 U. S. 126 (1919); Detroit Trust Co. v. The Thomas Barlum, 293 U. S. 21, 293 U. S. 47-48 (1934). [Footnote 6]Thus, to the extent that Minturn's theoretical underpinnings can be discerned, those foundations are no longer the law of this Court. Minturn's approach to determining admiralty jurisdiction, moreover, is inconsistent with the principle that the "nature and subject matter" of the contract at issue should be the crucial consideration in assessing admiralty jurisdiction. Insurance Co. v. Dunham, supra, 11 Wall. at 78 U. S. 26. While the Minturn Court viewed it as irrelevant "[t]hat the money advanced and paid for respondents was, in whole or in part, to pay bills due by a steamboat for repairs or supplies," the trend in modern admiralty case law, by contrast, is to focus the jurisdictional inquiry upon whether the nature of the transaction was maritime. See e.g., Kossick v. United Fruit Co., 365 U. S. 731, 365 U. S. 735-738 (1961). See also Krauss Bros. Lumber Co. v. Dimon S.S. Corp., 290 U. S. 117, 290 U. S. 124 (1933) ("Admiralty is not concerned with the form of the action, but with its substance").Finally, the proposition for which Minturn stands -- a per se bar of agency contracts from admiralty -- ill-serves the purpose of the grant of admiralty jurisdiction. As noted, the admiralty jurisdiction is designed to protect maritime commerce. See supra at 500 U. S. 608. There is nothing in the nature of an agency relationship that necessarily excludes such relationships from the realm of maritime commerce. Rubrics Page 500 U. S. 612 such as "general agent" and "special agent" reveal nothing about whether the services actually performed pursuant to a contract are maritime in nature. It is inappropriate, therefore, to focus on the status of a claimant to determine whether admiralty jurisdiction exists. Cf. Sisson, 497 U.S. at 497 U. S. 364, n. 2 ("the demand for tidy rules can go too far, and when that demand entirely divorces the jurisdictional inquiry from the purposes that support the exercise of jurisdiction, it has gone too far").We conclude that Minturn is incompatible with current principles of admiralty jurisdiction over contracts, and therefore should be overruled. We emphasize that our ruling is a narrow one. We remove only the precedent of Minturn from the body of rules that have developed over what types of contracts are maritime. Rather than apply a rule excluding all or certain agency contracts from the realm of admiralty, lower courts should look to the subject matter of the agency contract and determine whether the services performed under the contract are maritime in nature. See generally Kossick, supra, 365 U.S. at 365 U. S. 735-738 (analogizing the substance of the contract at issue to established types of "maritime" obligations and finding the contract within admiralty jurisdiction).IIIThere remains the question whether admiralty jurisdiction extends to Exxon's claim regarding the delivery of fuel in Jeddah. We conclude that it does. Like the District Court, we believe it is clear that, when Exxon directly supplies marine fuels to Waterman's ships, the arrangement is maritime in nature. See 707 F. Supp. at 161. Cf. The Golden Gate, 52 F.2d 397 (CA9 1931) (entertaining an action in admiralty for the value of fuel oil furnished to a vessel), cert. denied sub nom. Knutsen v. Associated Oil Co., 284 U.S. 682 (1932). In this case, the only difference between the New York delivery over which the District Court asserted jurisdiction, see n 2, supra, and the Jeddah delivery was that, in Jeddah, Page 500 U. S. 613 Exxon bought the fuels from a third party and had the third party deliver them to the Hooper. The subject matter of the Jeddah claim, like the New York claim, is the value of the fuel received by the ship. Because the nature and subject matter of the two transactions are the same as they relate to maritime commerce, if admiralty jurisdiction extends to one, it must extend to the other. Cf. North Pacific, supra, 249 U.S. at 249 U. S. 128 ("[T]here is no difference in character as to repairs made upon . . . a vessel . . . whether they are made while she is afloat, while in dry dock, or while hauled up [on] land. The nature of the service is identical in the several cases, and the admiralty jurisdiction extends to all"). [Footnote 7] We express no view on whether Exxon is entitled to a maritime lien under the Federal Maritime Lien Act. That issue is not before us, and we leave it to be decided on remand.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtExxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603 (1991)Exxon Corporation v. Central Gulf Lines, Inc.No. 90-34Argued April 15, 1991Decided June 3, 1991500 U.S. 603SyllabusPetitioner Exxon Corporation and Waterman Steamship Corporation negotiated a marine fuel requirements contract, in which Exxon agreed to supply Waterman's vessels with fuel when the vessels called at ports where Exxon could supply fuel directly and, when the vessels were in ports where Exxon had to rely on local suppliers, to arrange for, and pay, those suppliers to deliver the fuel and then invoice Waterman. In the transaction at issue, Exxon acted as Waterman's agent, procuring fuel from a local supplier in Jeddah, Saudi Arabia, for a ship owned by respondent Central Gulf Lines, Inc., but chartered by Waterman. Exxon paid for the fuel and invoiced Waterman, but Waterman filed for bankruptcy and never paid the bill's full amount. When Central Gulf agreed to assume personal liability for the bill if a court were to hold the ship liable in rem, Exxon commenced litigation in the District Court against Central Gulf in personam and the ship in rem, claiming to have a maritime lien on the ship under the Federal Maritime Lien Act. The court concluded that it did not have admiralty jurisdiction. Noting that a prerequisite to the existence of a maritime lien based on a breach of contract is that the contract's subject matter must fall within the admiralty jurisdiction, it followed Second Circuit precedent, which holds that Minturn v. Maynard, 17 How. 477 -- in which an agent who had advanced funds for repairs and supplies necessary for a vessel was barred from bringing a claim in admiralty against the vessel's owners -- established a per se rule excluding agency contracts from admiralty. However, the court ruled in Exxon's favor on a separate unpaid bill for fuel that Exxon supplied directly to the ship in New York. The Court of Appeals affirmed.Held:1. Because there is no per se exception of agency contracts from admiralty jurisdiction, Minturn is overruled. Minturn is incompatible with current principles of admiralty jurisdiction over contracts. The rationales on which it apparently rested -- that an action cognizable as assumpsit was excluded from admiralty, and that a claimant had to have some form of a lien interest in a vessel to sue in admiralty on a contract -- have been discredited, and are no longer the law of this Court. See Archawski v. Hanioti, 350 U. S. 532, 350 U. S. 536; see also, e.g., 249 U. S. S. 604� S.S. Co. v. Hall Bros. Marine Railway & Shipbuilding Co., 249 U. S. 119, 249 U. S. 126. Minturn's approach is also inconsistent with the principle that the "nature and subject matter" of the contract at issue should be the crucial consideration in assessing admiralty jurisdiction. Insurance Co. v. Dunham, 11 Wall. 1, 78 U. S. 26. And a per se bar of agency contracts from admiralty ill serves the purpose of the grant of admiralty jurisdiction, which is the protection of maritime commerce, Foremost Ins. Co. v. Richardson,@ 457 U. S. 668, 457 U. S. 674. There is nothing in the agency relationship that necessarily excludes such relationships from the realm of maritime commerce, and rubrics such as "general agent" reveal nothing about whether the services actually performed are maritime in nature. Pp. 500 U. S. 608-612.2. Admiralty jurisdiction extends to Exxon's claim regarding the delivery of fuel in Jeddah. The lower court correctly held that the New York transaction is maritime in nature. Since the subject matter of both claims -- the value of the fuel received by the ship -- is the same as it relates to maritime commerce, admiralty jurisdiction must extend to one if it extends to the other. P. 500 U. S. 612-613.3. This Court expresses no view on whether Exxon is entitled to a maritime lien under the Federal Maritime Lien Act, and leaves that issue to be decided on remand. P. 500 U. S. 613.904 F.2d 33 (CA 2 1990), reversed and remanded.MARSHALL, J., delivered the opinion for a unanimous Court.

1999_98-8384

Syllabushelping to crack a prison drug ring and for returning a guard's missing wallet, and to discover the testimony of prison officials who described Williams as among the inmates least likely to act violently, dangerously, or provocatively, and of a prison minister that Williams seemed to thrive in a more regimented environment. Although not all of the additional evidence was favorable to Williams, the failure to introduce the comparatively voluminous amount of favorable evidence was not justified by a tactical decision and clearly demonstrates that counsel did not fulfill their ethical obligation to conduct a thorough investigation of Williams' background. Moreover, counsel's unprofessional service prejudiced Williams within Strickland's meaning. The Virginia Supreme Court's prejudice analysis was unreasonable in at least two respects: (1) It was not only "contrary to," but also-inasmuch as it relied on the inapplicable Lockhart exception-an "unreasonable application of," the clear law as established in Strickland; and (2) it failed to evaluate the totality of, and to accord appropriate weight to, the available mitigation evidence. Pp. 391-398.JUSTICE O'CONNOR delivered the opinion of the Court as to Part II (except as to the footnote), concluding that § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant relief to a state prisoner with respect to claims adjudicated on the merits in state court: The habeas writ may issue only if the state-court adjudication (1) "was contrary to," or (2) "involved an unreasonable application of ... " clearly established Federal law, as determined by the Supreme Court of the United States." Pp.402-413.(a) Because Williams filed his petition in 1997, his case is not governed by the pre-1996 version of the federal habeas statute, but by the statute as amended by AEDPA. Accordingly, for Williams to obtain federal habeas relief, he must first demonstrate that his case satisfies the condition set by § 2254(d)(1). That provision modifies the previously settled rule of independent federal review of state prisoners' habeas petitions in order to curb delays, to prevent "retrials" on federal habeas, and to give effect to state convictions to the extent possible under law. In light of the cardinal principle of statutory construction that courts must give effect, if possible, to every clause and word of a statute, this Court must give independent meaning to both the "contrary to" and "unreasonable application" clauses of § 2254(d)(1). Given the commonly understood definitions of "contrary" as "diametrically different," "opposite in character or nature," or "mutually opposed," § 2254(d)(1)'s first clause must be interpreted to mean that a federal habeas court may grant relief if the state court (1) arrives at a conclusion opposite to that reached by this Court on a question of law or (2) decides a case differ-365ently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Pp. 402-409.(b) In defining what qualifies as an "unreasonable application of ... clearly established Federal law," the Fourth Circuit erred in holding that a state-court decision involves such an application only if the state court has applied federal law in a manner that reasonable jurists would all agree is unreasonable. That standard would tend to mislead federal habeas courts by focusing on a subjective inquiry. Rather, the federal court should ask whether the state court's application of clearly established federal law was objectively unreasonable. Cf. Wright v. West, 505 U. S. 277, 304. Although difficult to define, "unreasonable" is a common legal term familiar to federal judges. For present purposes, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law. See, e. g., id., at 305. Because Congress specifically used the word "unreasonable," and not a term like "erroneous" or "incorrect," a federal habeas court may not grant relief simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable. Finally, the phrase "clearly established Federal law, as determined by [this] Court" refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant statecourt decision. In this respect, the quoted phrase bears only a slight connection to this Court's jurisprudence under Teague v. Lane, 489 U. S. 288. Whatever would qualify as an "old rule" under Teague will constitute "clearly established Federal law, as determined by [this] Court," see, e. g., Stringer v. Black, 503 U. S. 222, 228, but with one caveat: Section 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence. Pp. 409-413.STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts II and V, in which SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., delivered the opinion of the Court with respect to Part II (except as to the footnote), in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., joined, and in which SCALIA, J., joined, except as to the footnote, and an opinion concurring in part and366Syllabusconcurring in the judgment, in which KENNEDY, J., joined, post, p. 399. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which SCALIA and THOMAS, JJ., joined, post, p. 416.John J. Gibbons argued the cause for petitioner. With him on the briefs were Brian A. Powers, by appointment of the Court, 526 U. S. 1110, and Ellen O. Boardman.Robert Q. Harris, Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief was Mark L. Earley, Attorney General. **Briefs of amici curiae urging reversal were filed for the American Bar Association by Philip S. Anderson, Abe Krash, Kathleen A. Behan, and John A. Freedman; for the American Civil Liberties Union by Larry W Yackle and Steven R. Shapiro; for the National Association of Criminal Defense Lawyers by John D. Cline and Lisa B. Kemler; for the Virginia College of Criminal Defense Attorneys et al. by Gerald T. Zerkin; for Professors Lance G. Banning et al. by Barry Levenstam and Jeffrey T. Shaw; and for Marvin E. Frankel et al. by Abner J. Mikva.Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, David Druliner, Chief Assistant Attorney General, Dane R. Gillette, Senior Assistant Attorney General, and Donald E. De Nicola and Ward A. Campbell, Deputy Attorneys General, joined by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Ken Salazar of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Alan G. Lance of Idaho, James E. Ryan of Illinois, Carla Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Michael C. Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, Michael E. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Jan Graham of Utah, Christine O. Gregoire of Washington, and Darrell McGraw, Jr., of West Virginia; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.367JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Parts II and V. *The questions presented are whether Terry Williams' constitutional right to the effective assistance of counsel as defined in Strickland v. Washington, 466 U. S. 668 (1984), was violated, and whether the judgment of the Virginia Supreme Court refusing to set aside his death sentence "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," within the meaning of 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III). We answer both questions affirmatively.IOn November 3, 1985, Harris Stone was found dead in his residence on Henry Street in Danville, Virginia. Finding no indication of a struggle, local officials determined that the cause of death was blood alcohol poisoning, and the case was considered closed. Six months after Stone's death, Terry Williams, who was then incarcerated in the "I" unit of the city jail for an unrelated offense, wrote a letter to the police stating that he had killed "'that man down on Henry Street'" and also stating that he "'did it'" to that "'lady down on West Green Street'" and was" 'very sorry.'" The letter was unsigned, but it closed with a reference to "I cell." App. 41. The police readily identified Williams as its author, and, on April 25, 1986, they obtained several statements from him. In one Williams admitted that, after Stone refused to lend him" 'a couple of dollars,'" he had killed Stone with a*JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join this opinion in its entirety. JUSTICE O'CONNOR and JUSTICE KENNEDY join Parts I, III, and IV of this opinion.368mattock and taken the money from his wallet.1 Id., at 4. In September 1986, Williams was convicted of robbery and capital murder.At Williams' sentencing hearing, the prosecution proved that Williams had been convicted of armed robbery in 1976 and burglary and grand larceny in 1982. The prosecution also introduced the written confessions that Williams had made in April. The prosecution described two auto thefts and two separate violent assaults on elderly victims perpetrated after the Stone murder. On December 4, 1985, Williams had started a fire outside one victim's residence before attacking and robbing him. On March 5, 1986, Williams had brutally assaulted an elderly woman on West Green Streetan incident he had mentioned in his letter to the police. That confession was particularly damaging because other evidence established that the woman was in a "vegetative state" and not expected to recover. Id., at 60. Williams had also been convicted of arson for setting a fire in the jail while awaiting trial in this case. Two expert witnesses employed by the State testified that there was a "high probabil-1" 'I had gone to Dee Dee Stone's house on Henry Street, Dee Dee's father was there. No one else was there except him. He had been drinking a lot. He was on the bed. He asked me if I wanted a drink. I told him, 'No.' I asked him if I could borrow a couple of dollars and he told me, 'No.' We started arguing and things started going around in my head. I just wanted to get back at him. I don't know what. He just laid back like he had passed out. He was laying there talking and moaning to himself. I went into the kitchen. I saw the butcher knife. I didn't want to use it. I was looking for something to use. I went into the bathroom and I saw the mattock. I picked up the mattock and I came back into the room where he was at. He was laying on the bed. He was laying on his back. I took the mattock and I hit him on the chest with it. He raised up and was gasping for his breath. He fell over to his side and I hit him in the back with the mattock. He fell back on the bed. I went and put the mattock back in the bathroom. I came back into the room. I took his wallet from his pocket. He had three dollars in it. I got the three dollars from it. I left him there. He was still grasping for breath.''' App.4-5.369ity" that Williams would pose a serious continuing threat to society. Id., at 89.The evidence offered by Williams' trial counsel at the sentencing hearing consisted of the testimony of Williams' mother, two neighbors, and a taped excerpt from a statement by a psychiatrist. One of the neighbors had not been previously interviewed by defense counsel, but was noticed by counsel in the audience during the proceedings and asked to testify on the spot. The three witnesses briefly described Williams as a "nice boy" and not a violent person. Id., at 124. The recorded psychiatrist's testimony did little more than relate Williams' statement during an examination that in the course of one of his earlier robberies, he had removed the bullets from a gun so as not to injure anyone.In his cross-examination of the prosecution witnesses, Williams' counsel repeatedly emphasized the fact that Williams had initiated the contact with the police that enabled them to solve the murder and to identify him as the perpetrator of the recent assaults, as well as the car thefts. In closing argument, Williams' counsel characterized Williams' confessional statements as "dumb," but asked the jury to give weight to the fact that he had "turned himself in, not on one crime but on four ... that the [police otherwise] would not have solved." Id., at 140. The weight of defense counsel's closing, however, was devoted to explaining that it was difficult to find a reason why the jury should spare Williams' life.22 In defense counsel's words: "I will admit too that it is very difficult to ask you to show mercy to a man who maybe has not shown much mercy himself. I doubt very seriously that he thought much about mercy when he was in Mr. Stone's bedroom that night with him. I doubt very seriously that he had mercy very highly on his mind when he was walking along West Green and the incident with Alberta Stroud. I doubt very seriously that he had mercy on his mind when he took two cars that didn't belong to him. Admittedly it is very difficult to get us and ask that you give this man mercy when he has shown so little of it himself. But I would ask that you would." Id., at 132-133.370The jury found a probability of future dangerousness and unanimously fixed Williams' punishment at death. The trial judge concluded that such punishment was "proper" and "just" and imposed the death sentence. Id., at 154. The Virginia Supreme Court affirmed the conviction and sentence. Williams v. Commonwealth, 234 Va. 168, 360 S. E. 2d 361 (1987), cert. denied, Williams v. Virginia, 484 U. S. 1020 (1988). It rejected Williams' argument that when the trial judge imposed sentence, he failed to give mitigating weight to the fact that Williams had turned himself in. 234 Va., at 181-182, 360 S. E. 2d, at 369-370.State Habeas Corpus ProceedingsIn 1988 Williams filed for state collateral relief in the Danville Circuit Court. The petition was subsequently amended, and the Circuit Court (the same judge who had presided over Williams' trial and sentencing) held an evidentiary hearing on Williams' claim that trial counsel had been ineffective.3 Based on the evidence adduced after two days of hearings, Judge Ingram found that Williams' conviction was valid, but that his trial attorneys had been ineffective during sentencing. Among the evidence reviewed that had not been presented at trial were documents prepared in connection with Williams' commitment when he was 11 years old that dramatically described mistreatment, abuse, and neglect during his early childhood, as well as testimony that he was "borderline mentally retarded," had suffered repeated head injuries, and might have mental impairments organic in origin. App. 528-529, 595. The habeas hearing also revealed3 While Williams' petition was pending before the Circuit Court, Virginia amended its state habeas statute to vest in the State Supreme Court exclusive jurisdiction to award writs of habeas corpus in capital cases. Va. Code Ann. §8.01-654(C)(1) (Supp. 1999). Shortly after the Circuit Court held its evidentiary hearing, the Supreme Court assumed jurisdiction over Williams' petition and instructed the Circuit Court to issue findings of fact and legal recommendation regarding Williams' ineffectiveassistance claims.371that the same experts who had testified on the State's behalf at trial believed that Williams, if kept in a "structured environment," would not pose a future danger to society. Id., at 313-314.Counsel's failure to discover and present this and other significant mitigating evidence was "below the range expected of reasonable, professional competent assistance of counsel." Id., at 424. Counsel's performance thus "did not measure up to the standard required under the holding of Strickland v. Washington, 466 U. S. 668 (1984), and [if it had,] there is a reasonable probability that the result of the sentencing phase would have been different." Id., at 429. Judge Ingram therefore recommended that Williams be granted a rehearing on the sentencing phase of his trial.The Virginia Supreme Court did not accept that recommendation. Williams v. Warden, 254 Va. 16, 487 S. E. 2d 194 (1997). Although it assumed, without deciding, that trial counsel had been ineffective, id., at 23-26, 487 S. E. 2d, at 198, 200, it disagreed with the trial judge's conclusion that Williams had suffered sufficient prejudice to warrant relief. Treating the prejudice inquiry as a mixed question of law and fact, the Virginia Supreme Court accepted the factual determination that available evidence in mitigation had not been presented at the trial, but held that the trial judge had misapplied the law in two respects. First, relying on our decision in Lockhart v. Fretwell, 506 U. S. 364 (1993), the court held that it was wrong for the trial judge to rely "'on mere outcome determination'" when assessing prejudice, 254 Va., at 23, 487 S. E. 2d, at 198 (quoting Lockhart, 506 U. S., at 369). Second, it construed the trial judge's opinion as having "adopted a per se approach" that would establish prejudice whenever any mitigating evidence was omitted. 254 Va., at 26, 487 S. E. 2d, at 200.The court then reviewed the prosecution evidence supporting the "future dangerousness" aggravating circumstance, reciting Williams' criminal history, including the sev-372eral most recent offenses to which he had confessed. In comparison, it found that the excluded mitigating evidencewhich it characterized as merely indicating "that numerous people, mostly relatives, thought that defendant was nonviolent and could cope very well in a structured environment," ibid.-"barely would have altered the profile of this defendant that was presented to the jury," ibid. On this basis, the court concluded that there was no reasonable possibility that the omitted evidence would have affected the jury's sentencing recommendation, and that Williams had failed to demonstrate that his sentencing proceeding was fundamentally unfair.Federal Habeas Corpus ProceedingsHaving exhausted his state remedies, Williams sought a federal writ of habeas corpus pursuant to 28 U. S. C. § 2254 (1994 ed. and Supp. III). After reviewing the state habeas hearing transcript and the state courts' findings of fact and conclusions of law, the federal trial judge agreed with the Virginia trial judge: The death sentence was constitutionally infirm.After noting that the Virginia Supreme Court had not addressed the question whether trial counsel's performance at the sentencing hearing fell below the range of competence demanded of lawyers in criminal cases, the judge began by addressing that issue in detail. He identified five categories of mitigating evidence that counsel had failed to introduce,44 "(i) Counsel did not introduce evidence of the Petitioner's background .... (ii) Counsel did not introduce evidence that Petitioner was abused by his father. (iii) Counsel did not introduce testimony from correctional officers who were willing to testify that defendant would not pose a danger while incarcerated. Nor did counsel offer prison commendations awarded to Williams for his help in breaking up a prison drug ring and for returning a guard's missing wallet. (iv) Several character witnesses were not called to testify .... [T]he testimony of Elliott, a respected CPA in the community, could have been quite important to the jury .... (v) Finally, counsel did not introduce evidence that Petitioner373and he rejected the argument that counsel's failure to conduct an adequate investigation had been a strategic decision to rely almost entirely on the fact that Williams had voluntarily confessed.According to Williams' trial counsel's testimony before the state habeas court, counsel did not fail to seek Williams' juvenile and social services records because he thought they would be counterproductive, but because counsel erroneously believed that" 'state law didn't permit it.'" App.470. Counsel also acknowledged in the course of the hearings that information about Williams' childhood would have been important in mitigation. And counsel's failure to contact a potentially persuasive character witness was likewise not a conscious strategic choice, but simply a failure to return that witness' phone call offering his service. Id., at 470-471. Finally, even if counsel neglected to conduct such an investigation at the time as part of a tactical decision, the District Judge found, tactics as a matter of reasonable performance could not justify the omissions.Turning to the prejudice issue, the judge determined that there was "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' Strickland, 466 U. S. at 694." Id., at 473. He found that the Virginia Supreme Court had erroneously assumed that Lockhart had modified the Strickland standard for determining prejudice, and that it had made an important error of fact in discussing its finding of no prejudice.5 Having introduced his analysis of Williams' claimwas borderline mentally retarded, though he was found competent to stand trial." App.465-469.5 "Specifically, the Virginia Supreme Court found no prejudice, reasoning: 'The mitigation evidence that the prisoner says, in retrospect, his trial counsel should have discovered and offered barely would have altered the profile of this defendant that was presented to the jury. At most, this evidence would have shown that numerous people, mostly relatives, thought that defendant was nonviolent and could cope very well in a structured environment.' Williams, 487 S. E. 2d at 200. The Virginia Su-374Opinion of STEVENS, J.with the standard of review applicable on habeas appeals provided by 28 U. S. C. § 2254(d) (1994 ed., Supp. III), the judge concluded that those errors established that the Virginia Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law" within the meaning of § 2254(d)(1).The Federal Court of Appeals reversed. 163 F.3d 860 (CA4 1998). It construed § 2254(d)(1) as prohibiting the grant of habeas corpus relief unless the state court" 'decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable.'" Id., at 865 (quoting Green v. French, 143 F.3d 865, 870 (CA4 1998)). Applying that standard, it could not say that the Virginia Supreme Court's decision on the prejudice issue was an unreasonable application of the tests developed in either Strickland or Lockhart.6 It explained that the evidence that Williams presented a future danger to society was "simply overwhelming," 163 F. 3d, at 868, it endorsed the Virginia Supreme Court's interpretation of Lockhart, 163 F. 3d, at 869, and it characterized the state court's understanding of the facts in this case as "reasonable," id., at 870.We granted certiorari, 526 U. S. 1050 (1999), and now reverse.IIIn 1867, Congress enacted a statute providing that federal courts "shall have power to grant writs of habeas corpus inpreme Court ignored or overlooked the evidence of Williams' difficult childhood and abuse and his limited mental capacity. It is also unreasonable to characterize the additional evidence as coming from 'mostly relatives.' As stated, supra, Bruce Elliott, a respected professional in the community, and several correctional officers offered to testify on Williams behalf." Id., at 476.6 Like the Virginia Supreme Court, the Court of Appeals assumed, without deciding, that the performance of trial counsel fell below an objective standard of reasonableness. 163 F. 3d, at 867.375all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States .... " Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. Over the years, the federal habeas corpus statute has been repeatedly amended, but the scope of that jurisdictional grant remains the same.7 It is, of course, well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas. See, e. g., Stone v. Powell, 428 U. S. 465 (1976); Brecht v. Abrahamson, 507 U. S. 619 (1993). On the other hand, errors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ. See, e. g., Teague v. Lane, 489 U. S. 288, 311-314 (1989) (quoting Mackey v. United States, 401 U. S. 667, 692-694 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), and quoting Rose v. Lundy, 455 U. S. 509, 544 (1982) (STEVENS, J., dissenting)). The deprivation of the right to the effective assistance of counsel recognized in Strickland is such an error. Strickland, 466 U. S., at 686, 697-698.The warden here contends that federal habeas corpus relief is prohibited by the amendment to 28 U. S. C. § 2254 (1994 ed., Supp. III), enacted as a part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The relevant portion of that amendment provides:7 By Act of Congress: "(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions ... (c) The writ of habeas corpus shall not extend to a prisoner unless- ... (3) He is in custody in violation of the Constitution or laws or treaties of the United States .... " 28 U. S. C. § 2241(c)(3). In parallel, § 2254(a) provides: "The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."376Opinion of STEVENS, J."(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States .... "In this case, the Court of Appeals applied the construction of the amendment that it had adopted in its earlier opinion in Green v. French, 143 F.3d 865 (CA4 1998). It read the amendment as prohibiting federal courts from issuing the writ unless:"(a) the state court decision is in 'square conflict' with Supreme Court precedent that is controlling as to law and fact or (b) if no such controlling decision exists, 'the state court's resolution of a question of pure law rests upon an objectively unreasonable derivation of legal principles from the relevant [S]upreme [C]ourt precedents, or if its decision rests upon an objectively unreasonable application of established principles to new facts,'" 163 F. 3d, at 865 (quoting Green, 143 F. 3d, at 870).Accordingly, it held that a federal court may issue habeas relief only if" 'the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is unreasonable,'" 163 F. 3d, at 865.88 The warden's view is narrower. He argues that 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III) establishes a new general rule that prohibits federal courts from granting habeas corpus relief on the basis of any claim that a state court has adjudicated on the merits, and that § 2254(d)(1) merely identifies two narrow exceptions to the general rule-when a state court has issued a decision "contrary to" or an "unreasonable application of"377We are convinced that that interpretation of the amendment is incorrect. It would impose a test for determining when a legal rule is clearly established that simply cannot be squared with the real practice of decisional law. 9 It would apply a standard for determining the "reasonableness" of state-court decisions that is not contained in the statute itself, and that Congress surely did not intend. And it would wrongly require the federal courts, including this Court, to defer to state judges' interpretations of federal law.As the Fourth Circuit would have it, a state-court judgment is "unreasonable" in the face of federal law only if all reasonable jurists would agree that the state court was unreasonable. Thus, in this case, for example, even if the Virginia Supreme Court misread our opinion in Lockhart, we could not grant relief unless we believed that none of the judges who agreed with the state court's interpretation of that case was a "reasonable jurist." But the statute saysclearly established federal law. Brief for Respondent 14-15. The first, "contrary to" exception, in his view, applies only to "starkly unreasonable" errors of law. The first category thus imposes "a standard of review far more limited than 'de novo,' 'independent' or 'plenary' review." Id., at 24. The state-court judgment must thus be so far afield "as to make the 'unlawfulness' of the state court decision 'apparent.''' Id., at 25. The second exception likewise replaces the "de novo" standard of reviewing mixed questions of law and fact with the standard of "objective reasonableness" as formulated by the Court of Appeals. Id., at 30-31.9 Although we explain our understanding of "clearly established law," infra, at 379-384, we note that the Fourth Circuit's construction of the amendment's inquiry in this respect is especially problematic. It separates cases into those for which a "controlling decision" exists and those for which no such decision exists. The former category includes very few cases, since a rule is "controlling" only if it matches the case before the court both "as to law and fact," and most cases are factually distinguishable in some respect. A literal application of the Fourth Circuit test would yield a particularly perverse outcome in cases involving the Strickland rule for establishing ineffective assistance of counsel, since that case, which established the "controlling" rule of law on the issue, contained facts insufficient to show ineffectiveness.378Opinion of STEVENS, J.nothing about "reasonable judges," presumably because all, or virtually all, such judges occasionally commit error; they make decisions that in retrospect may be characterized as "unreasonable." Indeed, it is most unlikely that Congress would deliberately impose such a requirement of unanimity on federal judges. As Congress is acutely aware, reasonable lawyers and lawgivers regularly disagree with one another. Congress surely did not intend that the views of one such judge who might think that relief is not warranted in a particular case should always have greater weight than the contrary, considered judgment of several other reasonable judges.The inquiry mandated by the amendment relates to the way in which a federal habeas court exercises its duty to decide constitutional questions; the amendment does not alter the underlying grant of jurisdiction in § 2254(a), see n. 7, supra.lO When federal judges exercise their federalquestion jurisdiction under the "judicial Power" of Article III of the Constitution, it is "emphatically the province and duty" of those judges to "say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). At the core of this10 Indeed, Congress roundly rejected an amendment to the bill eventually adopted that directly invoked the text of the jurisdictional grant, 28 U. S. C. § 2254(a) (providing that the federal courts "shall entertain an application for a writ of habeas corpus" (emphasis added)). The amendment read: "Notwithstanding any other provision oflaw, an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment or order of a State court shall not be entertained by a court of the United States unless the remedies in the courts of the State are inadequate or ineffective to test the legality of the person's detention." 141 Congo Rec. 14991 (1995) (amendment of Sen. Kyl) (emphasis added). In speaking against the Kyl amendment, Senator Specter (a key proponent of the eventual habeas reform) explained that when "dealing with the question of jurisdiction of the Federal courts to entertain questions on Federal issues, on constitutional issues, I believe it is necessary that the Federal courts retain that jurisdiction as a constitutional matter." Id., at 15050.379power is the federal courts' independent responsibility-independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States-to interpret federal law. A construction of AEDPA that would require the federal courts to cede this authority to the courts of the States would be inconsistent with the practice that federal judges have traditionally followed in discharging their duties under Article III of the Constitution. If Congress had intended to require such an important change in the exercise of our jurisdiction, we believe it would have spoken with much greater clarity than is found in the text of AEDPA.This basic premise informs our interpretation of both parts of § 2254(d)(1): first, the requirement that the determinations of state courts be tested only against "clearly established Federal law, as determined by the Supreme Court of the United States," and second, the prohibition on the issuance of the writ unless the state court's decision is "contrary to, or involved an unreasonable application of," that clearly established law. We address each part in turn.The "clearly established law" requirementIn Teague v. Lane, 489 U. S. 288 (1989), we held that the petitioner was not entitled to federal habeas relief because he was relying on a rule of federal law that had not been announced until after his state conviction became final. The antiretroactivity rule recognized in Teague, which prohibits reliance on "new rules," is the functional equivalent of a statutory provision commanding exclusive reliance on "clearly established law." Because there is no reason to believe that Congress intended to require federal courts to ask both whether a rule sought on habeas is "new" under Teaguewhich remains the law-and also whether it is "clearly established" under AEDPA, it seems safe to assume that Congress380Opinion of STEVENS, J.had congruent concepts in mindY It is perfectly clear that AEDPA codifies Teague to the extent that Teague requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time the state conviction became final.12Teague's core principles are therefore relevant to our construction of this requirement. Justice Harlan recognized11 It is not unusual for Congress to codify earlier precedent in the habeas context. Thus, for example, the exhaustion rule applied in Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), and the abuse of the writ doctrine applied in Sanders v. United States, 373 U. S. 1 (1963), were later codified. See 28 U. S. C. § 2254(b) (1994 ed., Supp. III) (exhaustion requirement); 28 U. S. C. § 2254, Rule 9(b), Rules Governing § 2254 Cases in the United States District Courts. A previous version of § 2254, as we stated in Miller v. Fenton, 474 U. S. 104, 111 (1985), "was an almost verbatim codification of the standards delineated in Townsend v. Sain, 372 U. S. 293 (1963), for determining when a district court must hold an evidentiary hearing before acting on a habeas petition."12We are not persuaded by the argument that because Congress used the words "clearly established law" and not "new rule," it meant in this section to codify an aspect of the doctrine of executive qualified immunity rather than Teague's antiretroactivity bar. Brief for Respondent 28-29, n. 19. The warden refers us specifically to § 2244(b)(2)(A) and 28 U. S. C. §2254(e)(2) (1994 ed., Supp. III), in which the statute does in so many words employ the "new rule" language familiar to Teague and its progeny. Congress thus knew precisely the words to use if it had wished to codify Teague per se. That it did not use those words in § 2254(d) is evidence, the argument goes, that it had something else in mind entirely in amending that section. We think, quite the contrary, that the verbatim adoption of the Teague language in these other sections bolsters our impression that Congress had Teague-and not any unrelated area of our jurisprudencespecifically in mind in amending the habeas statute. These provisions, seen together, make it impossible to conclude that Congress was not fully aware of, and interested in codifying into law, that aspect of this Court's habeas doctrine. We will not assume that in a single subsection of an amendment entirely devoted to the law of habeas corpus, Congress made the anomalous choice of reaching into the doctrinally distinct law of qualified immunity for a single phrase that just so happens to be the conceptual twin of a dominant principle in habeas law of which Congress was fully aware.381the "inevitable difficulties" that come with "attempting 'to determine whether a particular decision has really announced a "new" rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.'" Mackey, 401 U. S., at 695 (quoting Desist v. United States, 394 U. S. 244, 263 (1969)). But Teague established some guidance for making this determination, explaining that a federal habeas court operates within the bounds of comity and finality if it applies a rule "dictated by precedent existing at the time the defendant's conviction became final." 489 U. S., at 301 (emphasis deleted). A rule that "breaks new ground or imposes a new obligation on the States or the Federal Government," ibid., falls outside this universe of federal law.To this, AEDPA has added, immediately following the "clearly established law" requirement, a clause limiting the area of relevant law to that "determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III). If this Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar. In this respect, we agree with the Seventh Circuit that this clause "extends the principle of Teague by limiting the source of doctrine on which a federal court may rely in addressing the application for a writ." Lindh v. Murphy, 96 F.3d 856, 869 (1996). As that court explained:"This is a retrenchment from former practice, which allowed the United States courts of appeals to rely on their own jurisprudence in addition to that of the Supreme Court. The novelty in this portion of § 2254(d)(1) is not the 'contrary to' part but the reference to 'Federal law, as determined by the Supreme Court of the United States' (emphasis added). This extends the principle of Teague [v. Lane, 489 U. S. 288 (1989),] by limiting the382Opinion of STEVENS, J.source of doctrine on which a federal court may rely in addressing the application for a writ. It does not, however, purport to limit the federal courts' independent interpretive authority with respect to federal questions." Ibid.A rule that fails to satisfy the foregoing criteria is barred by Teague from application on collateral review, and, similarly, is not available as a basis for relief in a habeas case to which AEDPA applies.In the context of this case, we also note that, as our precedent interpreting Teague has demonstrated, rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule. As JUSTICE KENNEDY has explained:"If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule .... Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent." Wright v. West, 505 U. S. 277, 308-309 (1992) (opinion concurring in judgment).Moreover, the determination whether or not a rule is clearly established at the time a state court renders its final judgment of conviction is a question as to which the "federal courts must make an independent evaluation." Id., at 305 (O'CONNOR, J., concurring in judgment); accord, id., at 307 (KENNEDY, J., concurring in judgment).It has been urged, in contrast, that we should read Teague and its progeny to encompass a broader principle of deference requiring federal courts to "validat[e] 'reasonable, good-faith interpretations' of the law" by state courts.383Brief for California et al. as Amici Curiae 6 (quoting Butler v. McKellar, 494 U. S. 407, 414 (1990)). The position has been bolstered with references to our statements elucidating the "new rule" inquiry as one turning on whether "reasonable jurists" would agree the rule was not clearly established. Sawyer v. Smith, 497 U. S. 227, 234 (1990). This presumption of deference was in essence the position taken by three Members of this Court in Wright, 505 U. S., at 290291 (opinion of THOMAS, J.) ("[A] federal habeas court 'must defer to the state court's decision rejecting the claim unless that decision is patently unreasonable''') (quoting Butler, 494Teague, however, does not extend this far. The often repeated language that Teague endorses "reasonable, goodfaith interpretations" by state courts is an explanation of policy, not a statement of law. The Teague cases reflect this Court's view that habeas corpus is not to be used as a second criminal trial, and federal courts are not to run roughshod over the considered findings and judgments of the state courts that conducted the original trial and heard the initial appeals. On the contrary, we have long insisted that federal habeas courts attend closely to those considered decisions, and give them full effect when their findings and judgments are consistent with federal law. See Thompson v. Keohane, 516 U. S. 99, 107-116 (1995). But as JUSTICE O'CONNOR explained in Wright:"[T]he duty of the federal court in evaluating whether a rule is 'new' is not the same as deference; ... Teague does not direct federal courts to spend less time or effort scrutinizing the existing federal law, on the ground that they can assume the state courts interpreted it properly ...."[T]he maxim that federal courts should 'give great weight to the considered conclusions of a coequal state judiciary' ... does not mean that we have held in the past that federal courts must presume the correctness384Opinion of STEVENS, J.of a state court's legal conclusions on habeas, or that a state court's incorrect legal determination has ever been allowed to stand because it was reasonable. We have always held that federal courts, even on habeas, have an independent obligation to say what the law is." 505 U. S., at 305 (opinion concurring in judgment).We are convinced that in the phrase, "clearly established law," Congress did not intend to modify that independent obligation.The "contrary to, or an unreasonable application of," requirementThe message that Congress intended to convey by using the phrases "contrary to" and "unreasonable application of" is not entirely clear. The prevailing view in the Circuits is that the former phrase requires de novo review of "pure" questions of law and the latter requires some sort of "reasonability" review of so-called mixed questions of law and fact. See, e. g., Neelley v. Nagle, 138 F.3d 917 (CA111998); Drinkard v. Johnson, 97 F.3d 751 (CA5 1996); Lindh v. Murphy, 96 F.3d 856 (CA7 1996) (en bane), rev'd on other grounds, 521 U. S. 320 (1997).We are not persuaded that the phrases define two mutually exclusive categories of questions. Most constitutional questions that arise in habeas corpus proceedings-and therefore most "decisions" to be made-require the federal judge to apply a rule of law to a set of facts, some of which may be disputed and some undisputed. For example, an erroneous conclusion that particular circumstances established the voluntariness of a confession, or that there exists a conflict of interest when one attorney represents multiple defendants, may well be described either as "contrary to" or as an "unreasonable application of" the governing rule of law. Cf. Miller v. Fenton, 474 U. S. 104, 116 (1985); Cuyler v. Sullivan, 446 U. S. 335, 341-342 (1980). In constitutional adjudication, as in the common law, rules of law often develop385incrementally as earlier decisions are applied to new factual situations. See Wright, 505 U. S., at 307 (KENNEDY, J., concurring in judgment). But rules that depend upon such elaboration are hardly less lawlike than those that establish a bright-line test.Indeed, our pre-AEDPA efforts to distinguish questions of fact, questions of law, and "mixed questions," and to create an appropriate standard of habeas review for each, generated some not insubstantial differences of opinion as to which issues of law fell into which category of question, and as to which standard of review applied to each. See Thompson, 516 U. S., at 110-111 (acknowledging" 'that the Court has not charted an entirely clear course in this area'" and that "the proper characterization of a question as one of fact or law is sometimes slippery") (quoting Miller, 474 U. S., at 113). We thus think the Fourth Circuit was correct when it attributed the lack of clarity in the statute, in part, to the overlapping meanings of the phrases "contrary to" and "unreasonable application of." See Green, 143 F. 3d, at 870.The statutory text likewise does not obviously prescribe a specific, recognizable standard of review for dealing with either phrase. Significantly, it does not use any term, such as "de novo" or "plain error," that would easily identify a familiar standard of review. Rather, the text is fairly read simply as a command that a federal court not issue the habeas writ unless the state court was wrong as a matter of law or unreasonable in its application of law in a given case. The suggestion that a wrong state-court "decision"-a legal judgment rendered "after consideration of facts, and ... law," Black's Law Dictionary 407 (6th ed. 1990) (emphasis added)-may no longer be redressed through habeas (because it is unreachable under the "unreasonable application" phrase) is based on a mistaken insistence that the § 2254(d)(1) phrases have not only independent, but mutually exclusive, meanings. Whether or not a federal court can issue the writ "under [the] 'unreasonable application' clause," the statute is386Opinion of STEVENS, J.clear that habeas may issue under § 2254(d)(1) if a state-court "decision" is "contrary to ... clearly established Federal law." We thus anticipate that there will be a variety of cases, like this one, in which both phrases may be implicated.Even though we cannot conclude that the phrases establish "a body of rigid rules," they do express a "mood" that the Federal Judiciary must respect. Universal Camera Corp. v. NLRB, 340 U. S. 474, 487 (1951). In this respect, it seems clear that Congress intended federal judges to attend with the utmost care to state-court decisions, including all of the reasons supporting their decisions, before concluding that those proceedings were infected by constitutional error sufficiently serious to warrant the issuance of the writ. Likewise, the statute in a separate provision provides for the habeas remedy when a state-court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U. S. C. § 2254(d)(2) (1994 ed., Supp. III) (emphasis added). While this provision is not before us in this case, it provides relevant context for our interpretation of § 2254(d)(1); in this respect, it bolsters our conviction that federal habeas courts must make as the starting point of their analysis the state courts' determinations of fact, including that aspect of a "mixed question" that rests on a finding of fact. AEDPA plainly sought to ensure a level of "deference to the determinations of state courts," provided those determinations did not conflict with federal law or apply federal law in an unreasonable way. H. R. Conf. Rep. No. 104-518, p. 111 (1996). Congress wished to curb delays, to prevent "retrials" on federal habeas, and to give effect to state convictions to the extent possible under law. When federal courts are able to fulfill these goals within the bounds of the law, AEDPA instructs them to do so.On the other hand, it is significant that the word "deference" does not appear in the text of the statute itself. Neither the legislative history nor the statutory text suggests387any difference in the so-called "deference" depending on which of the two phrases is implicated.13 Whatever "deference" Congress had in mind with respect to both phrases, it surely is not a requirement that federal courts actually defer to a state-court application of the federal law that is, in the independent judgment of the federal court, in error. As Judge Easterbrook noted with respect to the phrase "contrary to":"Section 2254(d) requires us to give state courts' opinions a respectful reading, and to listen carefully to their conclusions, but when the state court addresses a legal question, it is the law 'as determined by the Supreme Court of the United States' that prevails." Lindh, 96 F. 3d, at 869.1413 As Judge Easterbrook has noted, the statute surely does not require the kind of "deference" appropriate in other contexts: "It does not tell us to 'defer' to state decisions, as if the Constitution means one thing in Wisconsin and another in Indiana. Nor does it tell us to treat state courts the way we treat federal administrative agencies. Deference after the fashion of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 ... (1984), depends on delegation. See Adams Fruit Co. v. Barrett, 494 U. S. 638 ... (1990). Congress did not delegate either interpretive or executive power to the state courts. They exercise powers under their domestic law, constrained by the Constitution of the United States. 'Deference' to the jurisdictions bound by those constraints is not sensible." Lindh v. Murphy, 96 F.3d 856, 868 (CA7 1996) (en bane), rev'd on other grounds, 521 U. S. 320 (1997).14 The Court advances three reasons for adopting its alternative construction of the phrase "unreasonable application of." First, the use of the word "unreasonable" in the statute suggests that Congress was directly influenced by the "patently unreasonable" standard advocated by JUSTICE THOMAS in his opinion in Wright v. West, 505 U. S. 277, 287 (1992), post, at 411-412; second, the legislative history supports this view, see post, at 408, n.; and third, Congress must have intended to change the law more substantially than our reading of 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III) permits.None of these reasons is persuasive. First, even though, as the Court recognizes, the term "unreasonable" is "difficult to define," post, at 410, neither the statute itself nor the Court's explanation of it suggests that388Opinion of STEVENS, J.Our disagreement with the Court about the precise meaning of the phrase "contrary to," and the word "unreasonable," is, of course, important, but should affect only a narrow category of cases. The simplest and first definition of "contrary to" as a phrase is "in conflict with." Webster'sAEDPA's "unreasonable application of" has the same meaning as JUSTICE THOMAS' "'patently unreasonable'" standard mentioned in his dictum in Wright. 505 U. S., at 291 (quoting Butler v. McKellar, 494 U. S. 407, 422 (1990) (Brennan, J., dissenting)). To the extent the "broader debate" in Wright touched upon the Court's novel distinction today between what is "wrong" and what is "unreasonable," it was in the context of a discussion not about the standard of review habeas courts should use for lawapplication questions, but about whether a rule is "new" or "old" such that Teague's retroactivity rule would bar habeas relief; JUSTICE THOMAS contended that Teague barred habeas "whenever the state courts have interpreted old precedents reasonably, not [as JUSTICE O'CONNOR suggested] only when they have done so 'properly.''' 505 U. S., at 291-292, n. 8. Teague, of course, as JUSTICE O'CONNOR correctly pointed out, "did not establish a standard of review at all," 505 U. S., at 303-304; rather than instructing a court how to review a claim, it simply asks, in absolute terms, whether a rule was clear at the time of a state-court decision. We thus do not think Wright "confirms" anything about the meaning of § 2254(d)(I), which is, as our division reflects, anything but "clear." Post, at 412.As for the other bases for the Court's view, the only two specific citations to the legislative history upon which it relies, post, at 408, do no more than beg the question. One merely quotes the language of the statute without elaboration, and the other goes to slightly greater length in stating that state-court judgments must be upheld unless "unreasonable." Neither sheds any light on what the content of the hypothetical category of "decisions" that are wrong but nevertheless not "unreasonable." Finally, while we certainly agree with the Court, post, at 403, that AEDPA wrought substantial changes in habeas law, see supra, at 386; see also, e. g., 28 U. S. C. § 2244(b) (1994 ed., Supp. III) (strictly limiting second or successive petitions); § 2244(d) (I-year statute of limitations for habeas petitions); § 2254(e)(2) (limiting availability of evidentiary hearings on habeas); §§ 2263, 2266 (strict deadlines for habeas court rulings), there is an obvious fallacy in the assumption that because the statute changed pre-existing law in some respects, it must have rendered this specific change here.389Ninth New Collegiate Dictionary 285 (1983). In this sense, we think the phrase surely capacious enough to include a finding that the state-court "decision" is simply "erroneous" or wrong. (We hasten to add that even "diametrically different" from, or "opposite" to, an established federal law would seem to include "decisions" that are wrong in light of that law.) And there is nothing in the phrase "contrary to"-as the Court appears to agree-that implies anything less than independent review by the federal courts. Moreover, state-court decisions that do not "conflict" with federal law will rarely be "unreasonable" under either the Court's reading of the statute or ours. We all agree that state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated. Our difference is as to the cases in which, at first blush, a state-court judgment seems entirely reasonable, but thorough analysis by a federal court produces a firm conviction that that judgment is infected by constitutional error. In our view, such an erroneous judgment is "unreasonable" within the meaning of the Act even though that conclusion was not immediately apparent.In sum, the statute directs federal courts to attend to every state-court judgment with utmost care, but it does not require them to defer to the opinion of every reasonable state-court judge on the content of federal law. If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody-or, as in this case, his sentence of death-violates the Constitution, that independent judgment should prevail. Otherwise the federal "law as determined by the Supreme Court of the United States" might be applied by the federal courts one way in Virginia and another way in California. In light of the well-recognized interest in ensuring that federal courts interpret federal law in a uniform390way,15 we are convinced that Congress did not intend the statute to produce such a result.IIIIn this case, Williams contends that he was denied his constitutionally guaranteed right to the effective assistance of counsel when his trial lawyers failed to investigate and to present substantial mitigating evidence to the sentencing jury. The threshold question under AEDPA is whether Williams seeks to apply a rule of law that was clearly established at the time his state-court conviction became final. That question is easily answered because the merits of his claim are squarely governed by our holding in Strickland v. Washington, 466 U. S. 668 (1984).We explained in Strickland that a violation of the right onwhich Williams relies has two components:"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687.To establish ineffectiveness, a "defendant must show that counsel's representation fell below an objective standard of15 See, e. g., Mackey v. United States, 401 U. S. 667, 689 (1971); Felker v.Turpin, 518 U. S. 651, 667 (1996) (SOUTER, J., concurring). Indeed, a contrary rule would be in substantial tension with the interest in uniformity served by Congress' modification in AEDPA of our previous Teague jurisprudence-now the law on habeas review must be "clearly established" by this Court alone. See supra, at 381-382. It would thus seem somewhat perverse to ascribe to Congress the entirely inconsistent policy of perpetuating disparate readings of our decisions under the guise of deference to anything within a conceivable spectrum of reasonableness.391reasonableness." Id., at 688. To establish prejudice he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694.It is past question that the rule set forth in Strickland qualifies as "clearly established Federal law, as determined by the Supreme Court of the United States." That the Strickland test "of necessity requires a case-by-case examination of the evidence," Wright, 505 U. S., at 308 (KENNEDY, J., concurring in judgment), obviates neither the clarity of the rule nor the extent to which the rule must be seen as "established" by this Court. This Court's precedent "dictated" that the Virginia Supreme Court apply the Strickland test at the time that court entertained Williams' ineffectiveassistance claim. Teague, 489 U. S., at 301. And it can hardly be said that recognizing the right to effective counsel "breaks new ground or imposes a new obligation on the States," ibid. Williams is therefore entitled to relief if the Virginia Supreme Court's decision rejecting his ineffectiveassistance claim was either "contrary to, or involved an unreasonable application of," that established law. It was both.IVThe Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 U. S. 364 (1993), modified or in some way supplanted the rule set down in Strickland. It is true that while the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-ofcounsel claims, there are situations in which the overriding focus on fundamental fairness may affect the analysis. Thus, on the one hand, as Strickland itself explained, there are a few situations in which prejudice may be presumed. 466 U. S., at 692. And, on the other hand, there are also situations in which it would be unjust to characterize the392likelihood of a different outcome as legitimate "prejudice." Even if a defendant's false testimony might have persuaded the jury to acquit him, it is not fundamentally unfair to conclude that he was not prejudiced by counsel's interference with his intended perjury. Nix v. Whiteside, 475 U. S. 157, 175-176 (1986).Similarly, in Lockhart, we concluded that, given the overriding interest in fundamental fairness, the likelihood of a different outcome attributable to an incorrect interpretation of the law should be regarded as a potential "windfall" to the defendant rather than the legitimate "prejudice" contemplated by our opinion in Strickland. The death sentence that Arkansas had imposed on Bobby Ray Fretwell was based on an aggravating circumstance (murder committed for pecuniary gain) that duplicated an element of the underlying felony (murder in the course of a robbery). Shortly before the trial, the United States Court of Appeals for the Eighth Circuit had held that such "double counting" was impermissible, see Collins v. Lockhart, 754 F.2d 258, 265 (1985), but Fretwell's lawyer (presumably because he was unaware of the Collins decision) failed to object to the use of the pecuniary gain aggravator. Before Fretwell's claim for federal habeas corpus relief reached this Court, the Collins case was overruled.16 Accordingly, even though the Arkansas trial judge probably would have sustained a timely objection to the double counting, it had become clear that the State had a right to rely on the disputed aggravating circumstance. Because the ineffectiveness of Fretwell's counsel had not deprived him of any substantive or procedural right to which the law entitled him, we held that his16 In Lowenfield v. Phelps, 484 U. S. 231 (1988), we held that an aggravating circumstance may duplicate an element of the capital offense if the class of death-eligible defendants is sufficiently narrowed by the definition of the offense itself. In Perry v. Lockhart, 871 F.2d 1384 (1989), the Eighth Circuit correctly decided that our decision in Lowenfield required it to overrule Collins.393claim did not satisfy the "prejudice" component of the Strickland test.17Cases such as Nix v. Whiteside, 475 U. S. 157 (1986), and Lockhart v. Fretwell, 506 U. S. 364 (1993), do not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him.18 In the instant case, it is undisputed that Williams had a right-indeed, a constitutionally protected right-to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer.Nevertheless, the Virginia Supreme Court read our decision in Lockhart to require a separate inquiry into fundamental fairness even when Williams is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding. It wrote:17 "But the 'prejudice' component of the Strickland test does not implicate these concerns. It focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. [466 U. S., at 687]; see Kimmelman, 477 U. S., at 393 (Powell, J., concurring). Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him. As we have noted, it was the premise of our grant in this case that Perry was correctly decided, i. e., that respondent was not entitled to an objection based on 'double counting.' Respondent therefore suffered no prejudice from his counsel's deficient performance." Lockhart v. Fretwell, 506 U. S. 364, 372 (1993).18 In her concurring opinion in Lockhart, JUSTICE O'CONNOR stressed this precise point. "I write separately only to point out that today's decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland v. Washington, 466 U. S. 668 (1984). The determinative question-whether there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,' id., at 694-remains unchanged. This case, however, concerns the unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry." Id., at 373.394" 'The prisoner argues there 'is a "reasonable probability" that at least one juror would have been moved to spare Petitioner's life had he heard' the mitigation evidence developed at the habeas hearing that was not presented at the trial. Summarizing, he contends there 'is a "reasonable probability" that had at least one juror heard any of this evidence-let alone all of this evidence-the outcome of this case would have been different.'"We reject these contentions. The prisoner's discussion flies in the face of the Supreme Court's admonition in Lockhart, supra, that 'an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.'" 254 Va., at 25, 487 S. E. 2d, at 199.Unlike the Virginia Supreme Court, the state trial judge omitted any reference to Lockhart and simply relied on our opinion in Strickland as stating the correct standard for judging ineffective-assistance claims. With respect to the prejudice component, he wrote:"Even if a Petitioner shows that counsel's performance was deficient, however, he must also show prejudice. Petitioner must show 'that there is a reasonable probability that but for counsel's unprofessional errors, the result ... would have been different.' Strickland, 466 U. S. at 694. 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Id. Indeed, it is insufficient to show only that the errors had some conceivable effect on the outcome of the proceeding, because virtually every act or omission of counsel would meet that test. Id. at 693. The petitioner bears the 'highly demanding' and 'heavy burden' in establishing actual prejudice." App. 417.395The trial judge analyzed the ineffective-assistance claim under the correct standard; the Virginia Supreme Court did not.We are likewise persuaded that the Virginia trial judge correctly applied both components of that standard to Williams' ineffectiveness claim. Although he concluded that counsel competently handled the guilt phase of the trial, he found that their representation during the sentencing phase fell short of professional standards-a judgment barely disputed by the State in its brief to this Court. The record establishes that counsel did not begin to prepare for that phase of the proceeding until a week before the trial. Id., at 207, 227. They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records. Had they done so, the jury would have learned that Williams' parents had been imprisoned for the criminal neglect of Williams and his siblings,19 that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents' incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents' custody.19 Juvenile records contained the following description of his home:"The home was a complete wreck. ... There were several places on the floor where someone had had a bowel movement. Urine was standing in several places in the bedrooms. There were dirty dishes scattered over the kitchen, and it was impossible to step any place on the kitchen floor where there was no trash .... The children were all dirty and none of them had on under-pants. Noah and Lula were so intoxicated, they could not find any clothes for the children, nor were they able to put the clothes on them .... The children had to be put in Winslow Hospital, as four of them, by that time, were definitely under the influence of whiskey." App. 528-529.396Counsel failed to introduce available evidence that Williams was "borderline mentally retarded" and did not advance beyond sixth grade in school. Id., at 595. They failed to seek prison records recording Williams' commendations for helping to crack a prison drug ring and for returning a guard's missing wallet, or the testimony of prison officials who described Williams as among the inmates "least likely to act in a violent, dangerous or provocative way." Id., at 569,588. Counsel failed even to return the phone call of a certified public accountant who had offered to testify that he had visited Williams frequently when Williams was incarcerated as part of a prison ministry program, that Williams "seemed to thrive in a more regimented and structured environment," and that Williams was proud of the carpentry degree he earned while in prison. Id., at 563-566.Of course, not all of the additional evidence was favorable to Williams. The juvenile records revealed that he had been thrice committed to the juvenile system-for aiding and abetting larceny when he was 11 years old, for pulling a false fire alarm when he was 12, and for breaking and entering when he was 15. Id., at 534-536. But as the Federal District Court correctly observed, the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a tactical decision to focus on Williams' voluntary confession. Whether or not those omissions were sufficiently prejudicial to have affected the outcome of sentencing, they clearly demonstrate that trial counsel did not fulfill their obligation to conduct a thorough investigation of the defendant's background. See 1 ABA Standards for Criminal Justice 4-4.1, commentary,We are also persuaded, unlike the Virginia Supreme Court, that counsel's unprofessional service prejudiced Williams within the meaning of Strickland. After hearing the additional evidence developed in the postconviction proceedings, the very judge who presided at Williams' trial, and who once397determined that the death penalty was "just" and "appropriate," concluded that there existed "a reasonable probability that the result of the sentencing phase would have been different" if the jury had heard that evidence. App. 429. We do not agree with the Virginia Supreme Court that Judge Ingram's conclusion should be discounted because he apparently adopted "a per se approach to the prejudice element" that placed undue "emphasis on mere outcome determination." 254 Va., at 26-27,487 S. E. 2d, at 200. Judge Ingram did stress the importance of mitigation evidence in making his "outcome determination," but it is clear that his predictive judgment rested on his assessment of the totality of the omitted evidence rather than on the notion that a single item of omitted evidence, no matter how trivial, would require a new hearing.The Virginia Supreme Court's own analysis of prejudice reaching the contrary conclusion was thus unreasonable in at least two respects. First, as we have already explained, the State Supreme Court mischaracterized at best the appropriate rule, made clear by this Court in Strickland, for determining whether counsel's assistance was effective within the meaning of the Constitution. While it may also have conducted an "outcome determinative" analysis of its own, 254 Va., at 27, 487 S. E. 2d, at 200, it is evident to us that the court's decision turned on its erroneous view that a "mere" difference in outcome is not sufficient to establish constitutionally ineffective assistance of counsel. See supra, at 394. Its analysis in this respect was thus not only "contrary to," but also, inasmuch as the Virginia Supreme Court relied on the inapplicable exception recognized in Lockhart, an "unreasonable application of" the clear law as established by this Court.Second, the State Supreme Court's prejudice determination was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence-both that adduced at trial, and the evidence adduced in the habeas pro-398Opinion of STEVENS, J.ceeding-in reweighing it against the evidence in aggravation. See Clemons v. Mississippi, 494 U. S. 738, 751-752 (1990). This error is apparent in its consideration of the additional mitigation evidence developed in the postconviction proceedings. The court correctly found that as to "the factual part of the mixed question," there was "really ... n[o] ... dispute" that available mitigation evidence was not presented at trial. 254 Va., at 24, 487 S. E. 2d, at 198. As to the prejudice determination comprising the "legal part" of its analysis, id., at 23-25, 487 S. E. 2d, at 198-199, it correctly emphasized the strength of the prosecution evidence supporting the future dangerousness aggravating circumstance.But the state court failed even to mention the sole argument in mitigation that trial counsel did advance-Williams turned himself in, alerting police to a crime they otherwise would never have discovered, expressing remorse for his actions, and cooperating with the police after that. While this, coupled with the prison records and guard testimony, may not have overcome a finding of future dangerousness, the graphic description of Williams' childhood, filled with abuse and privation, or the reality that he was "borderline mentally retarded," might well have influenced the jury's appraisal of his moral culpability. See Boyde v. California, 494 U. S. 370, 387 (1990). The circumstances recited in his several confessions are consistent with the view that in each case his violent behavior was a compulsive reaction rather than the product of cold-blooded premeditation. Mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case. The Virginia Supreme Court did not entertain that possibility. It thus failed to accord appropriate weight to the body of mitigation evidence available to trial counsel.VIn our judgment, the state trial judge was correct both in his recognition of the established legal standard for deter-399mining counsel's effectiveness, and in his conclusion that the entire postconviction record, viewed as a whole and cumulative of mitigation evidence presented originally, raised "a reasonable probability that the result of the sentencing proceeding would have been different" if competent counsel had presented and explained the significance of all the available evidence. It follows that the Virginia Supreme Court rendered a "decision that was contrary to, or involved an unreasonable application of, clearly established Federal law." Williams' constitutional right to the effective assistance of counsel as defined in Strickland v. Washington, 466 U. S. 668 (1984), was violated.Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.It is so ordered

OCTOBER TERM, 1999SyllabusWILLIAMS v. TAYLOR, WARDENCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 98-8384. Argued October 4, 1999-Decided April 18, 2000A Virginia jury convicted petitioner Williams of robbery and capital murder, and, after a sentencing hearing, found a probability of future dangerousness and unanimously fixed his punishment at death. Concluding that such punishment was "proper" and "just," the trial judge imposed the death sentence. The Virginia Supreme Court affirmed. In state habeas corpus proceedings, the same trial judge found, on the evidence adduced after hearings, that Williams' conviction was valid, but that his counsel's failure to discover and present significant mitigating evidence violated his right to the effective assistance of counsel under Strickland v. Washington, 466 U. S. 668. In rejecting the trial judge's recommendation that Williams be resentenced, the State Supreme Court held, inter alia, that the trial judge had failed to recognize that Strickland had been modified by Lockhart v. Fretwell, 506 U. S. 364, 369, and that Williams had not suffered sufficient prejudice to warrant relief. In habeas corpus proceedings under 28 U. S. C. § 2254, the federal trial judge agreed with the state trial judge that the death sentence was constitutionally infirm on ineffective-assistance grounds. The federal judge identified five categories of mitigating evidence that counsel had failed to introduce and rejected the argument that such failure had been a strategic decision to rely primarily on the fact that Williams had confessed voluntarily. As to prejudice, the judge determined, among other things, that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, see Strickland, 466 U. S., at 694. Applying an amended version of § 2254(d)(1) enacted in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the judge concluded that the Virginia Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The Fourth Circuit reversed, construing § 2254(d)(1) to prohibit federal habeas relief unless the state court had interpreted or applied the relevant precedent in a manner that reasonable jurists would all agree is unreasonable. The court declared that it could not say that the Virginia Supreme Court's decision on prejudice was an unreasonable application of the Strickland or Lockhart standards established by the Supreme Court.363Held: The judgment is reversed, and the case is remanded. 163 F.3d 860, reversed and remanded.JUSTICE STEVENS delivered the opinion of the Court as to Parts I, III, and IV, concluding that Williams was denied his constitutionally guaranteed right to the effective assistance of counsel, as defined in Strickland, when his trial lawyers failed to investigate and to present substantial mitigating evidence to the sentencing jury. Pp. 390-398.(a) The threshold question under AEDPA-whether Williams seeks to apply a rule of law that was clearly established at the time his statecourt conviction became final-is easily answered because the merits of his claim are squarely governed by Strickland. To establish ineffective assistance of counsel, the defendant must prove: (1) that counsel's performance fell below an objective standard of reasonableness, 466 U. S., at 688; and (2) that the deficient performance prejudiced the defense, which requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, id., at 694. Because the Strickland test qualifies as "clearly established Federal law, as determined by the Supreme Court," this Court's precedent "dictated" that the Virginia Supreme Court apply that test in entertaining Williams' ineffectiveassistance claim. See Teague v. Lane, 489 U. S. 288, 301. Pp. 390-391.(b) Williams is entitled to relief because the Virginia Supreme Court's decision rejecting his ineffective-assistance claim both is "contrary to, [and] involved an unreasonable application of, clearly established Federallaw." Strickland provides sufficient guidance for resolving virtually all ineffective-assistance claims, and the Virginia Supreme Court erred in holding that Lockhart modified or in some way supplanted Strickland. Although there are a few situations in which the overriding focus on fundamental fairness may affect the analysis, see Strickland, 466 U. S., at 692, cases such as Lockhart and Nix v. Whiteside, 475 U. S. 157, do not justify a departure from a straightforward application of Strickland when counsel's ineffectiveness deprives the defendant of a substantive or procedural right to which the law entitles him. Here, Williams had a constitutionally protected right to provide mitigating evidence that his trial counsel either failed to discover or failed to offer. Moreover, the Virginia trial judge correctly applied both components of the Strickland standard to Williams' claim. The record establishes that counsel failed to prepare for sentencing until a week beforehand, to uncover extensive records graphically describing Williams' nightmarish childhood, to introduce available evidence that Williams was "borderline mentally retarded" and did not advance beyond sixth grade, to seek prison records recording Williams' commendations for364Full Text of Opinion

2000_00-454

Attorney General Cruden, Deputy Solicitor General Kneedler, Edward C. DuMont, E. Ann Peterson, and William B. Lazarus. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In Montana v. United States, 450 U. S. 544 (1981), we held that, with limited exceptions, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian fee land within a reservation. The question with which we are presented is whether this general rule applies to tribal attempts to tax nonmember activity occurring on non-Indian fee land. We hold that it does and that neither of Montana's exceptions obtains here.In 1916, Hubert Richardson, lured by the possibility of trading with wealthy Gray Mountain Navajo cattlemen, built the Cameron Trading Post just south of the Little Colorado River near Cameron, Arizona. G. Richardson, Navajo Trader 136-137 (1986). Richardson purchased the land*Briefs of amici curiae urging reversal were filed for the State of South Dakota et al. by Mark W Barnett, Attorney General of South Dakota, and John Patrick Guhin, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Ken Salazar of Colorado, Robert A. Butterworth of Florida, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Wayne Stenehjem of North Dakota, W A. Drew Edmondson of Oklahoma, and Jan Graham of Utah; for the Association of American Railroads by Lynn H. Slade, Walter E. Stern, and William C. Scott; for the Interstate Natural Gas Association of America by Michael E. Webster and Neil G. Westesen; for Proper Economic Resource Management, Inc., by Randy V. Thompson; and for Roberta Bugenig et al. by James S. Burling.Briefs of amici curiae urging affirmance were filed for the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation et al. by William R. Perry and Arthur Lazarus, Jr.; for the Colorado River Indian Tribes et al. by Susan M. Williams; for the Confederated Tribes of the Umatilla Indian Reservation et al. by Michael L. Roy and Jeffrey D. Lerner; and for the Shakopee Mdewakanton Sioux (Dakota) Community et al. by Andrew M. Small and Steven F. Olson.648directly from the United States, but the Navajo Nation Reservation, which had been established in 1868, see 15 Stat. 667, was later extended eight miles south so that the Cameron Trading Post fell within its exterior boundaries. See Act of June 14, 1934, ch. 521, 48 Stat. 960-962. This 1934 enlargement of the Navajo Reservation-which today stretches across northeast Arizona, northwest New Mexico, and southeast Utah-did not alter the status of the property:It is, like millions of acres throughout the United States, non-Indian fee land within a tribal reservation.Richardson's "drafty, wooden store building and four small, one-room-shack cabins overlooking the bare river canyon," Richardson, supra, at 135, have since evolved into a business complex consisting of a hotel, restaurant, cafeteria, gallery, curio shop, retail store, and recreational vehicle facility. The current owner, petitioner Atkinson Trading Company, Inc., benefits from the Cameron Trading Post's location near the intersection of Arizona Highway 64 (which leads west to the Grand Canyon) and United States Highway 89 (which connects Flagstaff on the south with Glen Canyon Dam to the north). A significant portion of petitioner's hotel business stems from tourists on their way to or from the Grand Canyon National Park.In 1992, the Navajo Nation enacted a hotel occupancy tax, which imposes an 8 percent tax upon any hotel room located within the exterior boundaries of the Navajo Nation Reservation. See 24 Navajo Nation Code §§ 101-142 (1995), App. to Pet. for Cert. 102a-124a. Although the legal incidence of the tax falls directly upon the guests, the owner or operator of the hotel must collect and remit it to respondents, members of the Navajo Tax Commission. §§ 104, 107. The nonmember guests at the Cameron Trading Post pay approximately $84,000 in taxes to respondents annually.Petitioner's challenge under Montana to the Navajo Nation's authority to impose the hotel occupancy tax was rejected by both the Navajo Tax Commission and the Navajo649Supreme Court. Petitioner then sought relief in the United States District Court for the District of New Mexico, which also upheld the tax. A divided panel of the Court of Appeals for the Tenth Circuit affirmed. See 210 F.3d 1247 (2000).Although the Court of Appeals agreed with petitioner that our cases in this area "did make an issue of the fee status of the land in question," id., at 1256, it nonetheless concluded that the status of the land as "fee land or tribal land is simply one of the factors a court should consider" when determining whether civil jurisdiction exists, id., at 1258 (citing 18 U. S. C. § 1151). Relying in part upon our decision in Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), the court "complement[ed]" Montana's framework with a "case-by-case approach" that balanced the non-Indian fee status of the land with "the nature of the inherent sovereign powers the tribe is attempting to exercise, its interests, and the impact that the exercise of the tribe's powers has upon the nonmember interests involved." 210 F. 3d, at 1255, 1257, 1261. The Court of Appeals then likened the Navajo hotel occupancy tax to similar taxes imposed by New Mexico and Arizona, concluding that the tax fell under Montana's first exception because a "consensual relationship exists in that the nonmember guests could refrain from the privilege of lodging within the confines of the Navajo Reservation and therefore remain free from liability for the [tax]." 210 F. 3d, at 1263 (citing Buster v. Wright, 135 F.9d 7, 949 (CA8 1905)). The dissenting judge would have applied Montana without "any language or 'factors' derived from Merrion" and concluded that, based upon her view of the record, none of the Montana exceptions applied. 210 F. 3d, at 1269 (Briscoe, J., dissenting).We granted certiorari, 531 U. S. 1009 (2000), and now reverse.Tribal jurisdiction is limited: For powers not expressly conferred upon them by federal statute or treaty, Indian tribes650must rely upon their retained or inherent sovereignty. In Montana, the most exhaustively reasoned of our modern cases addressing this latter authority, we observed that Indian tribe power over nonmembers on non-Indian fee land is sharply circumscribed. At issue in Montana was the Crow Tribe's attempt to regulate nonmember fishing and hunting on non-Indian fee land within the reservation. Although we "readily agree[d]" that the 1868 Fort Laramie Treaty authorized the Crow Tribe to prohibit nonmembers from hunting or fishing on tribal land, 450 U. S., at 557, we held that such "power cannot apply to lands held in fee by non-Indians." Id., at 559. This delineation of members and nonmembers, tribal land and non-Indian fee land, stemmed from the dependent nature of tribal sovereignty. Surveying our cases in this area dating back to 1810, see Fletcher v. Peck, 6 Cranch 87, 147 (1810) (Johnson, J., concurring) (stating that Indian tribes have lost any "right of governing every person within their limits except themselves"), we noted that "through their original incorporation into the United States as well as through specific treaties and statutes, Indian tribes have lost many of the attributes of sovereignty." 450 U. S., at 563.1 We concluded that the inherent sovereignty of Indian tribes was limited to "their members and their territory": "[E]xercise of tribal power beyond what is necessary to protect tribal self-government or to control internal rela-1 We also noted that nearly 90 million acres of non-Indian fee land had been acquired as part of the Indian General Allotment Act, 24 Stat. 388, as amended, 25 U. S. C. § 331 et seq., which authorized the issuance of patents in fee to individual Indian allottees who, after holding the patent for 25 years, could then transfer the land to non-Indians. Although Congress repudiated the practice of allotment in the Indian Reorganization Act, 48 Stat. 984, 25 U. S. C. § 461 et seq., we nonetheless found significant that Congress equated alienation "with the dissolution of tribal affairs and jurisdiction." Montana, 450 U. S., at 559, n. 9. We thus concluded that it "defie[d] common sense to suppose that Congress would intend that non- Indians purchasing allotted lands would become subject to tribal jurisdiction." Ibid.651tions is inconsistent with the dependent status of the tribes." Id., at 564 (citing United States v. Wheeler, 435 U. S. 313, 326 (1978) ("[T]he dependent status of Indian tribes ... is necessarily inconsistent with their freedom to determine their external relations" (emphasis deleted))).Although we extracted from our precedents "the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," 450 U. S., at 565, we nonetheless noted in Montana two possible bases for tribal jurisdiction over non-Indian fee land. First, "[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements." Ibid. Second, "[a] tribe may ... exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id., at 566. Applying these precepts, we found that the nonmembers at issue there had not subjected themselves to "tribal civil jurisdiction" through any agreements or dealings with the Tribe and that hunting and fishing on non-Indian fee land did not "imperil the subsistence or welfare of the Tribe." Ibid. We therefore held that the Crow Tribe's regulations could not be enforced.The framework set forth in Montana "broadly addressed the concept of 'inherent sovereignty.''' Strate v. A-l Contractors, 520 U. S. 438, 453 (1997) (quoting Montana, supra, at 563). In Strate, we dealt with the Three Affiliated Tribes' assertion of judicial jurisdiction over an automobile accident involving two nonmembers traveling on a state highway within the reservation. Although we did not question the ability of tribal police to patrol the highway, see 520 U. S., at 456, n. 11, we likened the public right-of-way to non- Indian fee land because the Tribes lacked the power to652"assert a landowner's right to occupy and exclude," id., at 456. Recognizing that Montana "immediately involved regulatory authority," 2 we nonetheless concluded that its reasoning had "delineated-in a main rule and exceptions-the bounds of the power tribes retain to exercise 'forms of civil jurisdiction over non-Indians.'" 520 U. S., at 453 (quoting Montana, supra, at 565). We accordingly held that Montana governed tribal assertions of adjudicatory authority over non-Indian fee land within a reservation. See 520 U. S., at 453 ("Subject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally 'do[es] not extend to the activities of nonmembers of the tribe'" (emphasis added) (quoting Montana, supra, at 565)).Citing our decision in Merrion, respondents submit that Montana and Strate do not restrict an Indian tribe's power to impose revenue-raising taxes.3 In Merrion, just one year after our decision in Montana, we upheld a severance tax imposed by the Jicarilla Apache Tribe upon non-Indian lessees authorized to extract oil and gas from tribal land. In so doing, we noted that the power to tax derives not solely from an Indian tribe's power to exclude non-Indians from tribal land, but also from an Indian tribe's "general authority, as sovereign, to control economic activity within its jurisdiction." 455 U. S., at 137. Such authority, we held, was incident to the benefits conferred upon nonmembers: "They benefit from the provision of police protection and other governmental services, as well as from '''the advantages of a civilized society'" that are assured by the existence of tribal2 See also South Dakota v. Bourland, 508 U. S. 679 (1993); Brendale v.Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 (1989). 3 Respondents concede that regulatory taxes fall under the Montana framework. See 450 U. S., at 565 ("A tribe may regulate, through taxation, ... the activities of nonmembers").653government." Id., at 137-138 (quoting Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 228 (1980)).Merrion, however, was careful to note that an Indian tribe's inherent power to tax only extended to " 'transactions occurring on trust lands and significantly involving a tribe or its members.''' 455 U. S., at 137 (emphasis added) (quoting Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 152 (1980)). There are undoubtedly parts of the Merrion opinion that suggest a broader scope for tribal taxing authority than the quoted language above.4 But Merrion involved a tax that only applied to activity occurring on the reservation, and its holding is therefore easily reconcilable with the Montana-Strate line of authority, which we deem to be controlling. See Merrion, supra, at 142 ("[A] tribe has no authority over a nonmember until the nonmember enters tribal lands or conducts business with the tribe"). An Indian tribe's sovereign power to tax-whatever its derivation-reaches no further than triballand.54 Merrion v. Jicarilla Apache Tribe, 455 U. S. 130 (1982), for example, referenced the decision of the Court of Appeals for the Eighth Circuit in Buster v. Wright, 135 F.9d 7 (1905). But we have never endorsed Buster's statement that an Indian tribe's "jurisdiction to govern the inhabitants of a country is not conditioned or limited by the title to the land which they occupy in it." Id., at 951. Accordingly, beyond any guidance it might provide as to the type of consensual relationship contemplated by the first exception of Montana v. United States, 450 U. S. 544, 566 (1981), Buster is not an authoritative precedent.5We find misplaced the Court of Appeals' reliance upon 18 U. S. C. § 1151, a statute conferring upon Indian tribes jurisdiction over certain criminal acts occurring in "Indian country," or "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." See also Duro v. Reina, 495 U. S. 676, 680, n. 1 (1990). Although § 1151 has been relied upon to demarcate state, federal, and tribal jurisdiction over criminal and civil matters, see DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425, 427, n. 2 (1975) ("While § 1151 is concerned, on its face, only654We therefore do not read Merrion to exempt taxation from Montana's general rule that Indian tribes lack civil authority over nonmembers on non-Indian fee land. Accordingly, as in Strate, we apply Montana straight up. Because Congress has not authorized the Navajo Nation's hotel occupancy tax through treaty or statute, and because the incidence of the tax falls upon nonmembers on non-Indian fee land, it is incumbent upon the Navajo Nation to establish the existence of one of Montana's exceptions.Respondents argue that both petitioner and its hotel guests have entered into a consensual relationship with the Navajo Nation justifying the imposition of the hotel occupancy tax.6 Echoing the reasoning of the Court of Appeals, respondents note that the Cameron Trading Post benefits from the numerous services provided by the Navajo Nation. The record reflects that the Arizona State Police and the Navajo Tribal Police patrol the portions of United Stateswith criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction [citing cases]"), we do not here deal with a claim of statutorily conferred power. Section 1151 simply does not address an Indian tribe's inherent or retained sovereignty over nonmembers on non-Indian fee land.At least in the context of non-Indian fee land, we also find inapt the Court of Appeals' analogy to state taxing authority. Our reference in Merrion to a State's ability to tax activities with which it has a substantial nexus was made in the context of describing an Indian tribe's authority over tribal land. See 455 U. S., at 137-138 (citing Exxon Corp. v. Department of Revenue of Wis., 447 U. S. 207, 228 (1980); Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 445 (1979)). Only full territorial sovereigns enjoy the "power to enforce laws against all who come within the sovereign's territory, whether citizens or aliens," and Indian tribes "can no longer be described as sovereigns in this sense." Duro v. Reina, supra, at 685.6 Because the legal incidence of the tax falls directly upon the guests, not petitioner, it is unclear whether the Tribe's relationship with petitioner is at all relevant. We need not, however, decide this issue since the hotel occupancy tax exceeds the Tribe's authority even considering petitioner's contacts with the Navajo Nation.655Highway 89 and Arizona Highway 64 traversing the reservation; that the Navajo Tribal Police and the Navajo Tribal Emergency Medical Services Department will respond to an emergency call from the Cameron Trading Post; and that local Arizona Fire Departments and the Navajo Tribal Fire Department provide fire protection to the area.7 Although we do not question the Navajo Nation's ability to charge an appropriate fee for a particular service actually rendered,s we think the generalized availability of tribal services patently insufficient to sustain the Tribe's civil authority over nonmembers on non-Indian fee land.The consensual relationship must stem from "commercial dealing, contracts, leases, or other arrangements," Montana, 450 U. S., at 565, and a nonmember's actual or potential receipt of tribal police, fire, and medical services does not create the requisite connection. If it did, the exception would swallow the rule: All non-Indian fee lands within a reservation benefit, to some extent, from the "advantages of a civilized society" offered by the Indian tribe. Merrion, supra, at 137-138 (internal quotation marks and citation omitted). Such a result does not square with our precedents; indeed, we implicitly rejected this argument in Strate,9 where we held that the nonmembers had not consented to the Tribes' adjudicatory authority by availing themselves of the benefit of tribal police protection while traveling within the reservation. See 520 U. S., at 456-457, and n. 11. We therefore reject respondents' broad reading of Montana's first exception, which ignores the dependent status of Indian tribes and subverts the territorial restriction upon tribal power.7The Navajo Tribal Fire Department has responded to a fire at the Cameron Trading Post. See App. to Pet. for Cert. 57a.8 The Navajo Nation charges for its emergency medical services (a flat call-out fee of $300 and a mileage fee of $6.25 per mile). See App. 127-129. 9 See Reply Brief for Petitioners 13-14 and Brief for United States as Amicus Curiae 29 in Strate v. A-l Contractors, O. T. 1996, No. 95-1872.656Respondents and their principal amicus, the United States, also argue that petitioner consented to the tax by becoming an "Indian trader." Congress has authorized the Commissioner of Indian Affairs "to appoint traders to the Indian tribes and to make such rules and regulations as he may deem just and proper specifying the kind and quantity of goods and the prices at which such goods shall be sold to the Indians." 25 U. S. C. § 261. Petitioner has acquired the requisite license to transact business with the Navajo Nation and therefore is subject to the regulatory strictures promulgated by the Indian Affairs Commissioner. See 25 CFR pt. 141 (2000).10 But whether or not the Navajo Nation could impose a tax on activities arising out of this relationship, an issue not before us, it is clear that petitioner's "Indian trader" status by itself cannot support the imposition of the hotel occupancy tax.Montana's consensual relationship exception requires that the tax or regulation imposed by the Indian tribe have a nexus to the consensual relationship itself. In Strate, for example, even though respondent A-1 Contractors was on the reservation to perform landscaping work for the Three Affiliated Tribes at the time of the accident, we nonetheless held that the Tribes lacked adjudicatory authority because the other nonmember "was not a party to the subcontract, and the [T]ribes were strangers to the accident." 520 U. S., at 457 (internal quotation marks and citation omitted). A nonmember's consensual relationship in one area thus does not trigger tribal civil authority in another-it is not "in for a penny, in for a Pound." E. Ravenscroft, The Canterbury Guests; Or A Bargain Broken, act v, sc. 1. The hotel occupancy tax at issue here is grounded in petitioner's relationship with its nonmember hotel guests, who can reach the Cameron Trading Post on United States Highway 89 and10 Although the regulations do not "preclude" the Navajo Nation from imposing upon "Indian traders" such "fees or taxes [it] may deem appropriate," the regulations do not contemplate or authorize the hotel occupancy tax at issue here. 25 CFR § 141.11 (2000).657Arizona Highway 64, non-Indian public rights-of-way. Petitioner cannot be said to have consented to such a tax by virtue of its status as an "Indian trader."Although the Court of Appeals did not reach Montana's second exception, both respondents and the United States argue that the hotel occupancy tax is warranted in light of the direct effects the Cameron Trading Post has upon the Navajo Nation. Again noting the Navajo Nation's provision of tribal services and petitioner's status as an "Indian trader," respondents emphasize that petitioner employs almost 100 Navajo Indians; that the Cameron Trading Post derives business from tourists visiting the reservation; and that large amounts of tribal land surround petitioner's isolated property.ll Although we have no cause to doubt respondents' assertion that the Cameron Chapter of the Navajo Nation possesses an "overwhelming Indian character," Brief for Respondents 13-14, we fail to see how petitioner's operation of a hotel on non-Indian fee land "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana, supra, at 566.1211 The record does not reflect the amount of non-Indian fee land within the Navajo Nation. A 1995 study commissioned by the United States Department of Commerce states that 96.3 percent of the Navajo Nation's 16,224,896 acres is tribally owned, with allotted land comprising 762,749 acres, or 4.7 percent, of the reservation. See Economic Development Administration, V. Tiller, American Indian Reservations and Indian Trust Areas 214 (1995). The 1990 Census reports that that 96.6 percent of residents on the Navajo Nation are Indian. Joint Lodging 182. The Cameron Chapter of the Navajo Nation, in which petitioner's land lies, has a non-Indian population of 2.3 percent. See id., at 181.12 Although language in Merrion referred to taxation as "necessary to tribal self-government and territorial management," 455 U. S., at 141, it did not address assertions of tribal jurisdiction over non-Indian fee land. Just as with Montana's first exception, incorporating Merrion's reasoning here would be tantamount to rejecting Montana's general rule. In Strate v. A-l Contractors, 520 U. S. 438, 459 (1997), we stated that Montana's second exception "can be misperceived." The exception is only triggered by nonmember conduct that threatens the Indian tribe; it does not broadly658We find unpersuasive respondents' attempt to augment this claim by reference to Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 440 (1989) (opinion of STEVENS, J.). In this portion of Brendale, per the reasoning of two Justices, we held that the Yakima Nation had the authority to zone a small, non-Indian parcel located "in the heart" of over 800,000 acres of closed and largely uninhabited tribal land. Ibid. Respondents extrapolate from this holding that Indian tribes enjoy broad authority over nonmembers wherever the acreage of non-Indian fee land is minuscule in relation to the surrounding tribal land. But we think it plain that the judgment in Brendale turned on both the closed nature of the non-Indian fee land 13 and the fact that its development would place the entire area "in jeopardy." Id., at 443 (internal quotation marks and citation omitted).14 Irrespective of the percentage of non-Indian fee land within a reservation, Montana's second exception grants Indian tribes nothing "'beyond what is necessary topermit the exercise of civil authority wherever it might be considered "necessary" to self-government. Thus, unless the drain of the nonmember's conduct upon tribal services and resources is so severe that it actually "imperil[s]" the political integrity of the Indian tribe, there can be no assertion of civil authority beyond tribal lands. Montana, 450 U. S., at 566. Petitioner's hotel has no such adverse effect upon the Navajo Nation.13 JUSTICE STEVENS' opinion in Brendale sets out in some detail the restrictive nature of "closed area" surrounding the non-Indian fee land. See 492 U. S., at 438-441. Pursuant to the powers reserved it in an 1855 treaty with the United States, the Yakima Nation closed this forested area to the public and severely limited the activities of those who entered the land through a "courtesy permit system." Id., at 439 (internal quotation marks and citation omitted). The record here establishes that, save a few natural areas and parks not at issue, the Navajo Reservation is open to the general public. App. 61.14 See Strate v. A-l Contractors, supra, at 447, n. 6 (noting that the Yakima Nation "retained zoning authority ... only in the closed area"); Duro v. Reina, 495 U. S., at 688 (noting that zoning "is vital to the maintenance of tribal integrity and self-determination").659protect tribal self-government or to control internal relations.'" Strate, 520 U. S., at 459 (quoting Montana, 450 U. S., at 564). Whatever effect petitioner's operation of the Cameron Trading Post might have upon surrounding Navajo land, it does not endanger the Navajo Nation's political integrity. See Brendale, supra, at 431 (opinion of White, J.) (holding that the impact of the nonmember's conduct "must be demonstrably serious and must imperil the political integrity, the economic security, or the health and welfare of the tribe").Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory," but their dependent status generally precludes extension of tribal civil authority beyond these limits. United States v. Mazurie, 419 U. S. 544, 557 (1975). The Navajo Nation's imposition of a tax upon nonmembers on non-Indian fee land within the reservation is, therefore, presumptively invalid. Because respondents have failed to establish that the hotel occupancy tax is commensurately related to any consensual relationship with petitioner or is necessary to vindicate the Navajo Nation's political integrity, the presumption ripens into a holding. The judgment of the Court of Appeals for the Tenth Circuit is accordinglyReversed

OCTOBER TERM, 2000SyllabusATKINSON TRADING CO., INC. v. SHIRLEY ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUITNo. 00-454. Argued March 27, 200l-Decided May 29, 2001In Montana v. United States, 450 U. S. 544, this Court held that, with two limited exceptions, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation. Petitioner's trading post on such land within the Navajo Nation Reservation is subject to a hotel occupancy tax that the Tribe imposes on any hotel room located within the reservation's boundaries. The Federal District Court upheld the tax, and the Tenth Circuit affirmed. Relying in part on Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, the latter court complemented Montana's framework with a case-by-case approach that balanced the land's non-Indian fee status with the Tribe's sovereign powers, its interests, and the impact that the exercise of its powers had on the nonmembers' interests. The court concluded that the tax fell under Montana's first exception.Held: The Navajo Nation's imposition of a hotel occupancy tax upon nonmembers on non-Indian fee land within its reservation is invalid. Pp. 649-659.(a) Montana's general rule applies to tribal attempts to tax nonmember activity occurring on non-Indian fee land. Tribal jurisdiction is limited: For powers not expressly conferred them by federal statute or treaty, tribes must rely upon their retained or inherent sovereignty. Their power over nonmembers on non-Indian fee land is sharply circumscribed. Montana noted only two exceptions: (1) a tribe may regulate the activities of nonmembers who enter consensual relationships with the tribe or its members; and (2) a tribe may exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the tribe's political integrity, economic security, or health or welfare. 450 U. S., at 565-566. Montana's rule applies to a tribe's regulatory authority, id., at 566, and adjudicatory authority, Strate v. A-l Contractors, 520 U. S. 438, 453. Citing Merrion, respondents submit that Montana and Strate do not restrict a tribe's power to impose revenue-raising taxes. However, because Merrion noted that a tribe's inherent taxing power only extended to transactions occurring on trust lands and involving the tribe or its members, 455 U. S., at 137, it is easily reconcilable with the MontanaStrate line of authority. A tribe's sovereign power to tax reaches no646Syllabusfurther than tribal land. Thus, Merrion does not exempt taxation from Montana's general rule, and Montana is applied straight up. Because Congress had not authorized the tax at issue through treaty or statute, and because the incidence of the tax falls upon nonmembers on nonIndian fee land, the Navajo Nation must establish the existence of one of Montana's exceptions. Pp. 649-654.(b) Montana's exceptions do not obtain here. Neither petitioner nor its hotel guests have entered into a consensual relationship with the Navajo Nation justifying the tax's imposition. Such a relationship must stem from commercial dealing, contracts, leases, or other arrangements, Montana, supra, at 565, and a nonmember's actual or potential receipt of tribal police, fire, and medical services does not create the requisite connection. Nor is petitioner's status as an "Indian trader" licensed by the Indian Affairs Commissioner sufficient by itself to support the tax's imposition. As to Montana's second exception, petitioner's operation of a hotel on non-Indian fee land does not threaten or have a direct effect on the tribe's political integrity, economic security, or health or welfare. Contrary to respondents' argument, the judgment in Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 440, did not give Indian tribes broad authority over nonmembers where the acreage of non-Indian fee land is minuscule in relation to the surrounding tribal land. Irrespective of the percentage of non-Indian fee land within a reservation, Montana's second exception grants tribes nothing beyond what is necessary to protect tribal self-government or control internal relations. Strate, supra, at 459. Whatever effect petitioner's operation of its trading post might have upon surrounding Navajo land, it does not endanger the Navajo Nation's political integrity. Pp. 654-659.210 F.3d 1247, reversed.REHNQUIST, C. J., delivered the opinion for a unanimous Court. SouTER, J., filed a concurring opinion, in which KENNEDY and THOMAS, JJ., joined, post, p. 659.Charles G. Cole argued the cause for petitioner. With him on the briefs were Shannen W Coffin and William J. Darling.Marcelino R. Gomez argued the cause and filed a brief for respondents.Beth S. Brinkmann argued the cause for the United States as amicus curiae urging affirmance. On the brief were Acting Solicitor General Underwood, Acting Assistant647Full Text of Opinion

1959_7

MR. JUSTICE STEWART delivered the opinion of the Court.The appellants were convicted of violating a North Carolina criminal trespass statute, [Footnote 1] and their convictions were upheld by the Supreme Court of North Carolina, 248 N.C. 485, 103 S.E.2d 846. This appeal, grounded Page 364 U. S. 179 on 28 U.S.C. § 1257(2), [Footnote 2] attacks the constitutional validity of the statute as applied in this case. Because of doubt as to whether any substantial federal question was presented to or decided by the state courts, we postponed further consideration of the question of jurisdiction until the hearing of the case on the merits. 358 U.S. 925. For reasons to be stated, we have concluded that the appeal must be dismissed. [Footnote 3]There is no dispute as to the basic circumstances which led to the prosecution and ultimate conviction of the appellants. In December, 1955, Gillespie Park Golf Club, Inc., operated an 18-hole golf course on land which it leased from the City of Greensboro, North Carolina, and the Board of Trustees of the Greensboro City Administrative Unit. The bylaws of the lessee limited the use of the golf course to its "members" and persons in certain other specifically restricted categories. [Footnote 4] On December 7, 1955, Page 364 U. S. 180 the appellants, who are Negroes, entered the club's golf shop and requested permission to play on the course. Their request was refused. Nevertheless, after placing some money on a table in the golf shop, the appellants proceeded to the course and teed off. After they had played several holes the manager of the golf course ordered them to leave. They refused. The manager then summoned a deputy sheriff, and, after the appellants were again ordered to leave the course and they had again refused, they were arrested upon warrants sworn to by the manager.The appellants were tried and convicted of violating the state criminal trespass statute. Pending their appeal to the Supreme Court of North Carolina, they and others commenced an action against the City of Greensboro, the Greensboro Board of Education, and the Gillespie Park Golf Club, Inc., in the Federal District Court for the Middle District of North Carolina, asking for a declaratory judgment and an injunction forbidding the defendants from operating the golf course on a racially discriminatory basis. The federal court granted the injunction. Simkins v. City of Greensboro, 149 F. Supp. 562. Its judgment was affirmed by the Court of Appeals for the Fourth Circuit on June 28, 1957. City of Greensboro v. Simkins, 246 F.2d 425. On the same date, the Supreme Court of North Carolina, acting on the appeal from the criminal convictions in the state court, held that there had been a fatal variance in amendments to the warrants under which the appellants had been tried, and arrested Page 364 U. S. 181 the judgments against them. State v. Cooke, 246 N.C. 518, 98 S.E.2d 885.The appellants were again tried de novo in the Superior Court of Guilford County, North Carolina, for violating the state criminal trespass statute. At the outset, they made a motion to quash, which was denied. The State presented evidence as to what had happened on the golf course on December 7, 1955. At the conclusion of the evidence, the trial judge instructed the jury explicitly and at length that the defendants could not be convicted if they had been excluded from the golf course because of their race. Specifically, the trial judge charged the jury that". . . the law would not permit the City and, therefore, would not permit its lessee, the Gillespie Park Golf Club, Inc., to discriminate against any citizen of Greensboro in the maintenance and operation and use of a golf course. It could not exclude either defendant because of his race or for any other reason applicable to them alone; that is to say, they were entitled to the same rights to use the golf course as any other citizen of Greensboro would be, provided they complied with the reasonable rules and regulations for the operation and maintenance and use of the golf course. They would not be required to comply with any unreasonable rules and regulations for the operation and maintenance and use of the golf course. [Footnote 5]"The jury returned a verdict of guilty. A motion to set aside the verdict was denied. Page 364 U. S. 182The Supreme Court of North Carolina affirmed the convictions. In doing so, the court recognized that,"[s]ince the operator of the golf club was charged with making a public or semi-public use of the property, it could not deny the use of the property to citizens simply because they were Negroes. . . . Since the decision in Brown v. Board of Education, 347 U. S. 483, separation of the races in the use of public property cannot be required."248 N.C. at 491, 103 S.E.2d 850-851. The court quoted with approval the trial judge's instructions to the jury on this aspect of the case. It is from this judgment of the Supreme Court of North Carolina that the present appeal was taken. Page 364 U. S. 183The appellants contend that the Supremacy Clause and the Fourteenth Amendment required the North Carolina Court to hold that the findings of fact and judgment of the federal court in the civil case of Simkins v. City of Greensboro, 149 F. Supp. 562, conclusively established, contrary to the verdict of the jury in this case, that the state statute was used here to enforce a practice of racial discrimination by a state agency. The Supreme Court of North Carolina took cognizance of the federal court's published opinion in the Simkins case and commented with respect to it:"Examining the opinion, it appears that ten people, six of whom are defendants in this action, sought Page 364 U. S. 184 injunctive relief on the assertion that Negroes were discriminated against and were not permitted to play on what is probably the property involved in this case. We do not know what evidence plaintiffs produced in that action. It is, however, apparent from the opinion that much evidence was presented to Judge Hayes [in the Federal District Court] which was not before the Superior Court when defendants were tried. It would appear from the opinion that the entry involved in this case was one incident on which plaintiffs there relied to support their assertion of unlawful discrimination, but it is manifest from the opinion that that was not all of the evidence which Judge Hayes had. We are left in the dark as to other incidents happening prior or subsequent to the conduct here complained of, which might tend to support the assertion of unlawful discrimination. On the facts presented to him, Judge Hayes issued an order enjoining racial discrimination in the use of the golf course. Presumably that order has and is being complied with. No assertion is here made to the contrary."248 N.C. at 493, 103 S.E.2d at 852.The North Carolina court did not decide, however, whether it was bound under the Constitution to give to the federal court's unpublished findings and judgment in the prior civil action the conclusive effect urged by the appellants in the present criminal case, because it held that as a matter of state law the findings and judgment were not before it. [Footnote 6] Page 364 U. S. 185It is settled that a state court may not avoid deciding federal questions and thus defeat the jurisdiction of this Court by putting forward nonfederal grounds of decision which are without any fair or substantial support. Page 364 U. S. 186 NAACP v. Alabama, 357 U. S. 449, 357 U. S. 455; Staub v. City of Baxley, 355 U. S. 313, 355 U. S. 318-320; Ward v. Love County, 253 U. S. 17, 253 U. S. 22. Invoking this principle, the appellants urge that the independent state grounds relied upon for decision by the Supreme Court of North Carolina were untenable and inadequate, and that the question whether the Federal Constitution compelled that the findings and judgment in the federal case operated as a collateral estoppel in this case was properly before the state court for decision. It thus becomes this Court's duty to ascertain whether the procedural grounds relied upon by the state court independently and adequately support its judgment.The Supreme Court of North Carolina stated in its opinion of affirmance that the "defendants, for reasons best known to themselves, elected not to offer in evidence the record in the Federal court case." 248 N.C. at 493, 103 S.E.2d at 852. This statement is borne out by the record before that court, [Footnote 7] the so-called "case on appeal" prepared by the appellants themselves. [Footnote 8] The appellants Page 364 U. S. 187 now advise us that, in fact, the federal court's findings and judgment were offered in evidence at the trial and excluded by the trial judge. They ascribe to "some quirk of inadvertence" their failure to include in their "case on appeal" the part of the transcript which would so indicate. [Footnote 9] And they assert that, since the Supreme Court Page 364 U. S. 188 of North Carolina has "wide discretion" to go outside the record in order to get at the true facts, the Court's refusal to do so here amounted to a refusal to exercise its discretion "to entertain a constitutional claim while passing upon kindred issues raised in the same manner." Williams v. Georgia, 349 U. S. 375, 349 U. S. 383.The difficulty with this argument, beyond the fact that the appellants apparently did not ask the North Carolina court to go outside the record for this purpose, is that that court has consistently and repeatedly held in criminal cases that it will not make independent inquiry to determine the accuracy of the record before it. [Footnote 10] Illustrative Page 364 U. S. 189 decisions are: State v. Robinson, 229 N.C. 647, 50 S.E.2d 740; State v. Wolfe, 227 N.C. 461, 42 S.E.2d 515; State v. Gause, 227 N.C. 26, 40 S.E.2d 463; State v. Stiwinter, 211 N.C. 278, 189 S.E. 868; State v. Dee, 214 N.C. 509, 199 S.E. 730; State v. Weaver, 228 N.C. 39, 44 S.E.2d 360; State v. Davis, 231 N.C. 664, 58 S.E.2d 355; State v. Franklin, 248 N.C. 695, 104 S.E.2d 837.Thus, in the Robinson case, the court reversed a criminal conviction for insufficiency of the evidence, although noting that:"[T]he court below, in its charge . . . referred to . . . incriminating facts and circumstances which do not appear in the testimony included in the record before us. This would seem to indicate that the record fails to include all the evidence offered by the State.""Be that as it may, the record on appeal imports verity, and this Court is bound thereby. (Citing cases.) This is true even though the case is settled by counsel (citing cases), and not by the judge (citing cases). . . .""The Supreme Court is bound by the case on appeal, certified by the clerk of the Superior Court, even though the trial judge has had no opportunity to review it, and must decide questions presented upon the record as it comes here, without indulging in assumptions as to what might have occurred."229 N.C. at 649-650, 50 S.E.2d at 741-742.In State v. Wolfe, the court reversed a criminal conviction on the ground of error in the trial court's instructions to the jury, although pointing out that:"The quoted excerpts from the charge do not reflect the clarity of thought and conciseness of statement Page 364 U. S. 190 usually found in the utterances of the eminent and experienced jurist who presided at the trial below. . . . Even so, it [the record] is certified as the case on appeal. We are bound thereby, and must decide the question presented upon the record as it comes here, without indulging in assumptions as to what might have occurred."227 N.C. at 463, 42 S.E.2d at 516-517.In the Gause case, the court also reversed a conviction upon the ground of error in the charge, although noting that:"Doubtless the use of the words 'greater weight of evidence' instead of 'beyond reasonable doubt' was a slip of the tongue or an error in transcribing. Nevertheless, it appears in the record, and we must accept it as it comes to us."227 N.C. at 30, 40 S.E.2d at 466.In the Stiwinter case, involving a similar issue, the court said:"We are constrained to believe that this instruction has been erroneously reported, but it is here in a record duly certified . . . which imports verity, and we are bound by it."211 N.C. at 279, 189 S.E. at 869.The Dee case involved similar issues. There, the court noted:"It is suggested by the Attorney General that, in all probability, a typographical error has crept into the transcript and that the word 'disinterested' was used where the word 'interested' appears. In this he is supported by a letter from the judge who presided at the trial, and upon this letter a motion for certiorari to correct the record has been lodged on behalf of the State. . . . [T]he transcript is not now Page 364 U. S. 191 subject to change or correction. State v. Moore, 210 N.C. 686, 188 S.E. 421. It imports verity, and we are bound by it. . . .""Under C.S. § 643, if the case on appeal as served by the appellant be approved by the respondent or appellee, it becomes the case and a part of the record on appeal, and, in connection with the record [proper], may alone be considered in determining the rights of the parties interested in the appeal. . . . The appeal must be heard and determined on the agreed case appearing in the record."214 N.C. at 512, 199 S.E. at 732.It is thus apparent that the present case is not of a pattern with Williams v. Georgia, supra. Even if the North Carolina Supreme Court has power to make independent inquiry as to evidence proffered in the trial court but not included in the case on appeal, its decisions make clear that it has without exception refused to do so. [Footnote 11] Page 364 U. S. 192 This is not a case, therefore, where the state court failed to exercise discretionary power on behalf of appellants' "federal rights" which it had on other occasions exercised in favor of "kindred issues."The appellants contend additionally that they brought the federal court's findings and judgment in the Simkins case before the state courts in two other ways: (a) by their motion to quash at the outset of the trial, and (b) by their motion to set aside the verdict at the trial's conclusion. The motion to quash set out the existence and alleged effect of the federal court proceedings, and requested leave to offer in evidence in support of the motion "the full record and judgment roll in said case." The motion to set aside the verdict incorporated by reference the motion to quash and also contained an independent summary of the federal court proceedings, requesting the court to take judicial notice of the same. Both motions were denied by the trial court without opinion.As to the motion to quash, the Supreme Court of North Carolina sustained the trial court's ruling on the ground that the"court, in ruling on the motion, is not permitted to consider extraneous evidence. Therefore, when the defect must be established by evidence aliunde the record, the motion must be denied."248 N.C. at 489, 103 S.E.2d at 849. In upholding the denial of the second motion, the Supreme Court of North Carolina declined to take judicial notice of the federal court's findings and judgment, for reasons discussed at some length in its opinion, and concluded that the appellants "were not, as a matter of right, entitled to have the verdict set aside." Page 364 U. S. 193 248 N.C. at 495, 103 S.E.2d at 854. An independent examination of North Carolina law convinces us that the state court in both instances was following well established local procedural rules; it did not make an ad hoc determination operating discriminatorily against these particular litigants.At least since the decision in State v. Turner, 170 N.C. 701, 86 S.E. 1019, in 1915, it has been the settled rule in North Carolina that "[a] motion to quash . . . lies only for a defect on the face of the warrant or indictment." 170 N.C. at 702, 86 S.E. at 1020. The rule that a motion to quash cannot rest on matters dehors the record proper has, so far as investigation reveals, been rigidly adhered to in all subsequent North Carolina decisions. [Footnote 12] See State v. Brewer, 180 N.C. 716, 717, 104 S.E. 655, 656; State v. Cochran, 230 N.C. 523, 524, 53 S.E.2d 663, 665; State v. Andrews, 246 N.C. 561, 565, 99 S.E.2d 745, 748. In the present case, the state court simply followed this settled rule of local practice.A similar conclusion must be reached as to the denial of the motion made at the end of the trial. That motion requested"[t]hat the verdict rendered by the jury . . . be set aside, that the Court withhold and arrest judgment and discharge the defendants notwithstanding the verdict, or grant the defendants a new trial. . . ."Whether the Page 364 U. S. 194 motion be technically considered as one to set aside the verdict and grant a new trial or as one to arrest the judgment and dismiss the defendants, the action of the North Carolina Supreme Court in upholding its denial was clearly in conformity with established state law."A motion to set aside the verdict and grant a new trial is addressed to the discretion of the court and its refusal to grant such motion is not reviewable on appeal."State v. McKinnon, 223 N.C. 160, 166, 25 S.E.2d 606, 610; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250; State v. Johnson, 220 N.C. 252, 17 S.E.2d 7. See also State v. Wagstaff, 219 N.C. 15, 19, 12 S.E.2d 657, 660; State v. Brown, 218 N.C. 415, 422, 11 S.E.2d 321, 325; State v. Caper, 215 N.C. 670, 2 S.E.2d 864."A motion in arrest of judgment can be based only on matters which appear on the face of the record proper, or on matters which should, but do not, appear on the face of the record proper. . . . The record proper in any action includes only those essential proceedings which are made of record by the law itself, and, as such, are self-preserving. . . . The evidence in a case is no part of the record proper. . . . In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment."State v. Gaston, 236 N.C. 499, 501, 73 S.E.2d 311, 313; State v. Foster, 228 N.C. 72, 44 S.E.2d 447; State v. Brown, 218 N.C. 415, 422, 11 S.E.2d 321, 325; State v. McKnight, 196 N.C. 259, 145 S.E. 281; State v. Shemwell, 180 N.C. 718, 721, 104 S.E. 885.Examination of the whole course of North Carolina decisions thus precludes the inference that the Supreme Court of North Carolina in this case arbitrarily denied the appellants an opportunity to present their federal claim. The judgment before us for review is the judgment which the Supreme Court of North Carolina made on the record before it, not the action of the state trial Page 364 U. S. 195 court."Without any doubt, it rests with each State to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise, and the state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law. Callan v. Bransford, 139 U. S. 197; Brown v. Massachusetts, 144 U. S. 573; Jacobi v. Alabama, 187 U. S. 133; Hulbert v. Chicago, 202 U. S. 275, 202 U. S. 281; Newman v. Gates, 204 U. S. 89; Chesapeake & Ohio Railway Co. v. McDonald, 214 U. S. 191, 214 U. S. 195."John v. Paullin, 231 U. S. 583, 231 U. S. 585."[W]hen, as here, there can be no pretence that the [state] Court adopted its view in order to evade a constitutional issue, and the case has been decided upon grounds that have no relation to any federal question, this Court accepts the decision, whether right or wrong."Nickel v. Cole, 256 U. S. 222, 256 U. S. 225. [Footnote 13]A word of emphasis is appropriate, before concluding, to make entirely explicit what it is that is involved in this case, and what is not. There is no issue here as to the Page 364 U. S. 196 constitutional right of Negroes to use a public golf course free of racial discrimination. From first to last, the courts of North Carolina fully recognized that, under the Constitution, these appellants could not be convicted if they were excluded from the golf course because of their race. The trial judge so instructed the jury, and the Supreme Court of North Carolina so held. Cf. Constantian v. Anson County, 244 N.C. 221, 93 S.E.2d 163. Upon the evidence in this case, the jury's verdict established that no such racial discrimination had in fact occurred."On review here of State convictions, all those matters which are usually termed issues of fact are for conclusive determination by the State courts, and are not open for reconsideration by this Court. Observance of this restriction in our review of State courts calls for the utmost scruple."Watts v. Indiana, 338 U. S. 49, 338 U. S. 50.What is involved here is the assertion of a quite different constitutional claim -- that the Supremacy Clause and the Fourteenth Amendment require a state criminal court to give conclusive effect to factfindings made in a civil action upon different evidence by a Federal District Court. While intimating no view as to the merits of this constitutional claim, we note only that it is a completely novel one. Cf. Hoag v. New Jersey, 356 U. S. 464, 356 U. S. 470-471. The North Carolina Supreme Court did not decide this asserted federal question. We have found that it did not do so because of the requirements of rules of state procedural law within the Constitutional power of the States to define, and here clearly delineated and evenhandedly applied. We have no choice but to determine that this appeal must be dismissed because no federal question is before us. That determination is required by principles of judicial administration long settled in this Court, principles applicable alike to all litigants, irrespective of their race, color, politics, or religion.Dismissed

U.S. Supreme CourtWolfe v. North Carolina, 364 U.S. 177 (1960)Wolfe v. North CarolinaNo. 7Argued October 19-20, 1959Decided June 27, 1960364 U.S. 177SyllabusAppellants and other Negroes obtained from a Federal District Court an injunction against the operation on a racially discriminatory basis of a golf course owned by a North Carolina City but leased and operated by a club. Appellants had previously been charged with, and were subsequently tried in a state court for, violating a state criminal trespass statute by persisting in playing on the course after having been denied permission to do so and after having been ordered to leave. The jury was clearly instructed that appellants could not be found guilty if they were excluded because of their race; but they were convicted. At this trial, the unpublished findings and judgment of the Federal Court were offered in evidence, but were excluded. Appellants omitted these facts from the record on appeal to the State Supreme Court, wherein they contended that, notwithstanding the jury's verdict, the Supremacy Clause and the Fourteenth Amendment required a holding that the findings and judgment of the Federal Court conclusively established that the criminal trespass statute was used to enforce a practice of racial discrimination by a state agency. The State Supreme Court declined to rule on that contention on the ground that, under state law, the findings and judgment of the Federal Court were not before it,.and it affirmed the convictions.Held: an appeal to this Court is dismissed, and certiorari is denied for want of a substantial federal question, since the judgment of the State Supreme Court was independently and adequately supported on state procedural grounds. Pp. 364 U. S. 178-196.(a) Even if the judgment and findings of the Federal Court were offered in evidence and excluded by the trial judge, these facts did not appear in the record filed by appellants in the State Supreme Court and, therefore, were not properly cognizable by that Court under state practice. Pp. 364 U. S. 185-187.(b) In declining to go outside the record in order to ascertain the true facts, the State Supreme Court did not discriminate against appellants; it acted in accordance with a practice which it had followed consistently for many years in considering appeals in criminal cases. Pp. 364 U. S. 187-192. Page 364 U. S. 178(c) The Federal Court's findings and judgment in the civil case were not properly brought before the state courts by appellants' motion to quash at the outset of the trial, which allege the effect of the Federal Court's proceedings and requested leave to offer the record of that Court in evidence in support of the motion, since the settled state practice does not permit consideration of extraneous evidence in passing upon such a motion. Pp. 364 U. S. 192-193.(d) Under established state practice, the Federal Court's findings and judgment in the civil case were not properly brought before the state courts by appellants' motion at the end of the trial to set aside the verdict. Pp. 364 U. S. 193-194.(e) The State Supreme Court did not arbitrarily deny appellants an opportunity to present their federal claim. Pp. 364 U. S. 194-195.248 N.C. 485, 103 S.E.2d 846, appeal dismissed.

1962_305

MR. JUSTICE WHITE delivered the opinion of the Court.Section 23(k)(1) of the Internal Revenue Code of 1939 [Footnote 1] provides for the deduction in full of worthless debts other than nonbusiness bad debts while § 23(k)(4) restricts nonbusiness bad debts to the treatment accorded losses on the sale of short-term capital assets. [Footnote 2] The statute defines a nonbusiness bad debt in part as "a debt . . . other than a debt the loss from the worthlessness of which is incurred in the taxpayer's trade or business." Page 373 U. S. 195 § 23(k)(4). The question before us is whether petitioner's activities in connection with several corporations in which he holds controlling interests can themselves be characterized as a trade or business so as to permit a debt owed by one of the corporations to him to be treated within the general rule of § 23(k)(1) as a "business," rather than a "nonbusiness," bad debt.Prior to 1941, petitioner was a construction superintendent and an estimator for a lumber company, but, during that year and over the next several ones, he was instrumental in forming, and was a member of a series of partnerships engaged in, the construction or construction supply business. In 1949 and 1950, he was an original incorporator of seven corporations, some of which were successors to the partnerships, and, in 1951, he sold his interest in the corporations, along with his equity in five others in the rental and construction business, the profit on the sales being reported as long-term capital gains. In 1951 and 1952, he formed eight new corporations, one of which was Mission Orange Bottling Co. of Lubbock, Inc., bought the stock of a corporation known as Mason Root Beer, [Footnote 3] and acquired an interest in a related vending machine business. From 1951 to 1953, he also bought and sold land, acquired and disposed of a restaurant, and participated in several oil ventures.On April 25, 1951, petitioner secured a franchise from Mission Dry Corporation entitling him to produce, bottle, distribute and sell Mission beverages in various counties in Texas. Two days later, he purchased the assets of a sole proprietorship in the bottling business and conducted that business pursuant to his franchise as a sole proprietorship. Page 373 U. S. 196 On July 1, 1951, though retaining the franchise in his own name, he sold the bottling equipment to Mission Orange Bottling Co. of Lubbock, Inc., a corporation organized by petitioner as mentioned, of which he owned approximately 80% of the shares outstanding. [Footnote 4] In 1952, he purchased land in Lubbock and erected a bottling plant thereon at a cost of $43,601, and then leased the plant to Mission Orange for a 10-year term at a prescribed rental. Depreciation was taken on the new bottling plant on petitioner's individual tax returns for 1952 and 1953.Petitioner made sizable cash advances to Mission Orange in 1952 and 1953, and, on December 1, 1953, the balance due him, including $25,502.50 still owing from his sale of the bottling assets to the corporation in July, 1951, totaled $79,489.76. On December 15, 1953, petitioner advanced to Mission Orange an additional $48,000 to pay general creditors, and, on the same day, received a transfer of the assets of the corporation with a book value of $70,414.66. The net amount owing to petitioner ultimately totaled $56,975.10, which debt became worthless in 1953, and is in issue here. During 1951, 1952, and 1953, Mission Orange made no payments of interest, rent or salary to petitioner, although he did receive such income from some of his other corporations. [Footnote 5]Petitioner deducted the $56,975.10 debt due from Mission Orange as a business bad debt in computing his 1953 Page 373 U. S. 197 taxable income. The Commissioner, claiming the debt was a nonbusiness bad debt, assessed deficiencies. The Tax Court, after determining that petitioner in 1953 was not in the business of organizing, promoting, managing, or financing corporations, of bottling soft drinks, or of general financing and money lending, sustained the deficiencies. A divided Court of Appeals affirmed, 301 F.2d 108, and, upon a claim of conflict [Footnote 6] among the Courts of Appeals, we granted certiorari. 371 U.S. 875.IThe concept of engaging in a trade or business, as distinguished from other activities pursued for profit, is not new to the tax laws. As early as 1916, Congress, by providing for the deduction of losses incurred in a trade or business separately from those sustained in other transactions entered into for profit, § 5, Revenue Act of 1916, c. 463, 39 Stat. 756, distinguished the broad range of income or profit producing activities from those satisfying the narrow category of trade or business. This pattern has been followed elsewhere in the Code. See, e.g., § 23(a)(1) and (2) (ordinary and necessary expenses); § 23(e) (1) and (2) (losses); § 23(l)(1) and (2) (depreciation); § 122(d)(5) (net operating loss deduction). It is not surprising, therefore, that we approach the problem of applying that term here with much writing upon the slate.In Burnet v. Clark, 287 U. S. 410 (1932), the long-time president and principal stockholder of a corporation in the dredging business endorsed notes for the company which he was forced to pay. These amounts were deductible by him in the current year under the then existing law, but, to carry over the loss to later years, it was necessary for it to have resulted from the operation of a trade or business Page 373 U. S. 198 regularly carried on by the taxpayer. The Board of Tax Appeals denied the carry-over, but the Court of Appeals for the District of Columbia held otherwise on the grounds that the taxpayer devoted all of his time and energies to carrying on the business of dredging, and that he was compelled by circumstances to endorse the company's notes in order to supply it with operating funds. [Footnote 7] This Court, in turn, reversed and reinstated the judgment of the Board of Tax Appeals, since"[t]he respondent was employed as an officer of the corporation; the business which he conducted for it was not his own. . . . The unfortunate endorsements were no part of his ordinary business, but occasional transactions intended to preserve the value of his investment in capital shares. . . . A corporation and its stockholders are generally to be treated as separate entities."A similar case, Dalton v. Bowers, 287 U. S. 404, decided the same day, applied the same principles. [Footnote 8] Page 373 U. S. 199A few years later, the same problem arose in another context. A taxpayer with large and diversified investment holdings, including a substantial but not controlling interest in the du Pont Company, obtained a block of stock of that corporation for distribution to its officers in order to increase their management efficiency. The taxpayer, as a result, became obligated to refund the annual dividends and taxes thereon, and these amounts he sought to deduct as ordinary and necessary expenses paid or incurred in the carrying on of a trade or business pursuant to § 23(a) of the Revenue Act of 1928. The Court, Deputy v. du Pont, 308 U. S. 488 (1940), assuming arguendo that the taxpayer's activities in investing and managing his estate were a trade or business, nevertheless denied the deduction because the transactions "had their origin in an effort by that company to increase the efficiency of its management," and"arose out of transactions which were intended to preserve his investment in the corporation. . . . The well established decisions of this Court do not permit any such blending of the corporation's business with the business of its stockholders."308 U.S. at 308 U. S. 494. Reliance was placed upon Burnet v. Clark and Dalton v. Bowers, supra.The question assumed in du Pont was squarely up for decision in Higgins v. Commissioner, 312 U. S. 212 (1941). Here, the taxpayer devoted his time and energies to managing a sizable portfolio of securities, and sought to deduct his expenses incident thereto as incurred in a trade or business under § 23(a). The Board of Tax Appeals, the Court of Appeals for the Second Circuit, and this Court Page 373 U. S. 200 held that the evidence was insufficient to establish taxpayer's activities as those of carrying on a trade or business."The petitioner merely kept records and collected interest and dividends from his securities, through managerial attention for his investments. No matter how large the estate or how continuous or extended the work required may be, such facts are not sufficient as a matter of law to permit the courts to reverse the decision of the Board."312 U.S. at 312 U. S. 218.Such was the state of the cases in this Court when Congress, in 1942, amended the Internal Revenue Code in respects crucial to this case. In response to the Higgins case and to give relief to Higgins type taxpayers, see H.R.Rep. No. 2333, 77th Cong., 2d Sess. 46, § 23(a) was amended not by disturbing the Court's definition of "trade or business," but by following the pattern that had been established since 1916 of "[enlarging] the category of incomes with reference to which expenses were deductible," McDonald v. Commissioner, 323 U. S. 57, 323 U. S. 62; United States v. Gilmore, 372 U. S. 39, 372 U. S. 45, to include expenses incurred in the production of income.At the same time, to remedy what it deemed the abuses of permitting any worthless debt to be fully deducted, as was the case prior to this time, see H.R.Rep. No. 2333, 77th Cong., 2d Sess. 45, Congress restricted the full deduction under § 23(k) to bad debts incurred in the taxpayer's trade or business, [Footnote 9] and provided that "nonbusiness" bad Page 373 U. S. 201 debts were to be deducted as short-term capital losses. Congress deliberately used the words "trade or business," terminology familiar to the tax laws, and the respective committees made it clear that the test of whether a debt is incurred in a trade or business"is substantially the same as that which is made for the purpose of ascertaining whether a loss from the type of transaction covered by section 23(e) is 'incurred in trade or business' under paragraph (1) of that section."H.R.Rep.No. 2333, 77th Cong., 2d Sess. 76-77; S.Rep.No. 1631, 77th Cong., 2d Sess. 90. Section 23(e)(1), of course, was a successor to the old § 5 of the Revenue Act of 1916, under which it had long been the rule to distinguish between activities in a trade or business and those undertaken for profit. The upshot was that Congress broadened § 23(a) to reach income producing activities not amounting to a trade or business, and, conversely, narrowed § 23(k) to exclude bad debts arising from these same sources.The 1942 amendment of § 23(k), therefore, as the Court has already noted, Putnam v. Commission, 352 U. S. 82, 352 U. S. 90-92, was intended to accomplish far more than to deny full deductibility to the worthless debts of family and friends. It was designed to make full deductibility of a bad debt turn upon its proximate connection with activities which the tax laws recognized as a trade or business, a concept which falls far short of reaching every income or profit making activity.IIPetitioner, therefore, must demonstrate that he is engaged in a trade or business, and lying at the heart of his claim is the issue upon which the lower courts have divided and which brought the case here: that, where a taxpayer Page 373 U. S. 202 furnishes regular services to one or many corporations, an independent trade or business of the taxpayer has been shown. But against the background of the 1942 amendments and the decisions of this Court in the Dalton, Burnet, du Pont, and Higgins cases, petitioner's claim must be rejected.Devoting one's time and energies to the affairs of a corporation is not, of itself, and without more, a trade or business of the person so engaged. Though such activities may produce income, profit, or gain in the form of dividends or enhancement in the value of an investment, this return is distinctive to the process of investing, and is generated by the successful operation of the corporation's business, as distinguished from the trade or business of the taxpayer himself. When the only return is that of an investor, the taxpayer has not satisfied his burden of demonstrating that he is engaged in a trade or business, since investing is not a trade or business, and the return to the taxpayer, though substantially the product of his services, legally arises not from his own trade or business, but from that of the corporation. Even if the taxpayer demonstrates an independent trade or business of his own, care must be taken to distinguish bad debt losses arising from his own business and those actually arising from activities peculiar to an investor concerned with, and participating in, the conduct of the corporate business.If full-time service to one corporation does not alone amount to a trade or business, which it does not, it is difficult to understand how the same service to many corporations would suffice. To be sure, the presence of more than one corporation might lend support to a finding that the taxpayer was engaged in a regular course of promoting corporations for a fee or commission, see Ballantine, Corporations (rev. ed. 1946), 102, or for a profit on their sale, see Page 373 U. S. 203 Giblin v. Commissioner, 227 F.2d 692 (C.A.5th Cir.), but, in such cases, there is compensation other than the normal investor's return, income received directly for his own services, rather than indirectly through the corporate enterprise, and the principles of Burnet, Dalton, du Pont, and Higgins are therefore not offended. On the other hand, since the Tax Court found, and the petitioner does not dispute, that there was no intention here of developing the corporations as going businesses for sale to customers in the ordinary course, the case before us inexorably rests upon the claim that one who actively engages in serving his own corporations for the purpose of creating future income through those enterprises is in a trade or business. That argument is untenable in light of Burnet, Dalton, du Pont, and Higgins, and we reject it. [Footnote 10] Absent substantial additional evidence, [Footnote 11] furnishing management and other services to corporations for a reward not different from that flowing to an investor in those corporations is not a trade or business under § 23(k)(4). We are, therefore, fully in agreement with this aspect of the decision below.IIIWith respect to the other claims by petitioner, we are unwilling to disturb the determinations of the Tax Court, affirmed by the Court of Appeals, that petitioner was not Page 373 U. S. 204 engaged in the business of money lending, of financing corporations, of bottling soft drinks, or of any combination of these, since we cannot say they are clearly erroneous. See Commissioner v. Duberstein, 363 U. S. 278, 363 U. S. 289-291. Nor need we consider or deal with those cases which hold that working as a corporate executive for a salary may be a trade or business. E.g., Trent v. Commissioner, 291 F.2d 669 (C.A.2d Cir.). [Footnote 12] Petitioner made no such claim in either the Tax Court or the Court of Appeals, and, in any event, the contention would be groundless on this record, since it was not shown that he has collected a salary from Mission Orange or that he was owed one. Moreover, there is no proof (which might be difficult to furnish where the taxpayer is the sole or dominant stockholder) that then loan was necessary to keep his job or was otherwise proximately related to maintaining his trade or business as an employee. Compare Trent v. Commissioner, supra.We are more concerned, however, with the evidence as to petitioner's position as the owner and lessor of the real estate and bottling plant in which Mission Orange did business. The United States does not dispute the fact that, in this regard, petitioner was engaged in a trade or business, [Footnote 13] but argues that the loss from the worthless debt was not proximately related to petitioner's real estate Page 373 U. S. 205 business. While the Tax Court and the Court of Appeals dealt separately with assertions relating to other phases of petitioner's case, we do not find that either court disposed of the possibility that the loan to Mission Orange, a tenant of petitioner, was incurred in petitioner's business of being a landlord. We take no position whatsoever on the merits of this matter, but remand the case for further proceedings in the Tax Court.Vacated and remanded

U.S. Supreme CourtWhipple v. Commissioner, 373 U.S. 193 (1963)Whipple v. CommissionerNo. 305Argued March 26-27, 1963Decided May 13, 1963373 U.S. 193SyllabusPetitioner organized, owned the controlling interest in, and managed several business corporations. One was a bottling company to which he sold on credit bottling equipment owned by him individually, leased a plant built by him on land which he owned individually, and made a loan to pay off other creditors. Its indebtedness to him became worthless in 1953, and he deducted it as a business bad debt in computing his 1953 taxable income. The Commissioner claimed that the debt was a nonbusiness bad debt within the meaning of § 23(k)(4) of the Internal Revenue Code of 1939, as amended in 1942, and assessed deficiencies. The Tax Court determined that petitioner was not in the business of organizing, promoting, managing or financing corporations, of bottling soft drinks, or of general financing and money lending, and it sustained the deficiency. The Court of Appeals affirmed.Held:1. The 1942 amendment of § 23(k) was designed to make full deductibility of a bad debt turn upon its proximate connection with activities which the tax laws recognized as a "trade or business," a concept which falls far short of reaching every income-producing or profitmaking activity. Pp. 373 U. S. 197-201.2. Absent substantial additional evidence, furnishing organizational, promotional, and managerial services to corporations for a reward not different from that flowing to an investor in those corporations is not a "trade or business," within the meaning of § 23(k)(4). Pp. 373 U. S. 201-203.3. The determinations of the Tax Court, affirmed by the Court of Appeals, that petitioner was not engaged in the business of money lending, of financing corporations, of bottling soft drinks or of any combination of these were not clearly erroneous, and they will not be disturbed by this Court. Pp. 373 U. S. 203-204.4. However, the loss may have been attributable to petitioner's position as the owner and lessor of the real estate and bottling Page 373 U. S. 194 plant in which the corporation did business. Since neither of the Courts below disposed of that possibility, the case is remanded for further proceedings in the Tax Court on that question. Pp. 373 U. S. 204-205.301 F.2d 108, judgment vacated and cause remanded.

1977_77-285

MR. JUSTICE REHNQUIST delivered the opinion of the Court.The United States seeks to impound 2.4 million acre-feet of water from California's Stanislaus River as part of its Central Valley Project. The California State Water Resources Control Board ruled that the water could not be allocated to the Government under state law unless it agreed to and complied with various conditions dealing with the water's use. The Government then sought a declaratory judgment in the District Court for the Eastern District of California to the effect that the United States can impound whatever unappropriated water is necessary for a federal reclamation project without complying with state law. The District Court held that, as a matter of comity, the United States must apply to the State for an appropriation permit, but that the State must issue the permit without condition if there is sufficient unappropriated water. 403 F. Sup. 874 (1975). The Court of Appeals for the Ninth Circuit affirmed, but held that § 8 of the Reclamation Act of 1902, 32 Stat. 390, as codified, 43 U.S.C. §§ 372, 383, rather than comity, requires the United States to apply for the permit. 558 F.2d 1347 (1977). We granted certiorari to review the decision of the Court of Appeals insofar as it holds that California cannot condition its allocation of water to a federal reclamation project. 434 U.S. 984 (1977). We now reverse. Page 438 U. S. 648IPrinciples of comity and federalism, which the District Court and the Court of Appeals referred to and which have received considerable attention in our decisions, are as a legal matter based on the Constitution of the United States, statutes enacted by Congress, and judge-made law. But the situations invoking the application of these principles have contributed importantly to their formation. Just as it has been truly said that the life of the law is not logic, but experience, see O. Holmes, The Common Law 1 (1881), so may it be said that the life of the law is not political philosophy, but experience.The very vastness of our territory as a Nation, the different times at which it was acquired and settled, and the varying physiographic and climatic regimes which obtain in its different parts have all but necessitated the recognition of legal distinctions corresponding to these differences. Those who first set foot in North America from ships sailing the tidal estuaries of Virginia did not confront the same problems as those who sailed flat boats down the Ohio River in search of new sites to farm. Those who cleared the forests in the old Northwest Territory faced totally different physiographic problems from those who built sod huts on the Great Plains. The final expansion of our Nation in the 19th century into the arid lands beyond the hundredth meridian of longitude, which had been shown on early maps as the "Great American Desert," brought the participants in that expansion face to face with the necessity for irrigation in a way that no previous territorial expansion had.In order to correctly ascertain the meaning of the Reclamation Act of 1902, we must recognize the obvious truth that the history of irrigation and reclamation before that date was much fresher in the minds of those then in Congress than it is to us today."[T]he afternoon of July 23, 1847, was the true date of the beginning of modern irrigation. It was on that afternoon that the first band of Mormon pioneers built a small Page 438 U. S. 649 dam across City Creek near the present site of the Mormon Temple and diverted sufficient water to saturate some 5 acres of exceedingly dry land. Before the day was over, they had planted potatoes to preserve the seed. [Footnote 1]"During the subsequent half-century, irrigation expanded throughout the arid States of the West, supported usually by private enterprise or the local community. [Footnote 2] By the turn of the century, however, most of the land which could be profitably irrigated by such small-scale projects had been put to use. Pressure mounted on the Federal Government to provide the funding for the massive projects that would be needed to complete the reclamation, culminating in the Reclamation Act of 1902. [Footnote 3]The arid lands were not all susceptible of the same sort of reclamation. The climate and topography of the lands that constituted the "Great American Desert" were quite different from the climate and topography of the Pacific Coast States. As noted in both United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950), and Ivanhoe Irrigation District v. McCracken, 357 U. S. 275 (1958), the latter States not only had a more pronounced seasonal variation and precipitation than the intermountain States, but the interior portions of California had climatic advantages which many of the intermountain States did not."The prime value in our national economy of the lands of summer drought on the Pacific coast is as a source of Page 438 U. S. 650 plant products that require mild winters and long growing seasons. Citrus fruits, the less hardy deciduous fruits, fresh vegetables in winter -- these are their most important contributions at present. Rainless summers make possible the inexpensive drying of fruits, which puts into the market prunes, raisins, dried peaches, and apricots. In its present relation to American economy in general, the primary technical problem of agriculture in the Pacific Coast States is to make increasingly more effective use of the mild winters and the long growing season in the face of the great obstacle presented by the rainless summers. To overcome that obstacle, supplementary irrigation is necessary. Hence the key position of water in Pacific Coast agriculture. [Footnote 4]"If the term "cooperative federalism" had been in vogue in 1902, the Reclamation Act of that year would surely have qualified as a leading example of it. In that Act, Congress set forth on a massive program to construct and operate dams, reservoirs, and canals for the reclamation of the arid lands in 17 Western States. Reflective of the "cooperative federalism" which the Act embodied is § 8, whose exact meaning and scope are the critical inquiries in this case:"[N]othing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, that the Page 438 U. S. 651 right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."32 Stat. 390 (emphasis added).Perhaps because of the cooperative nature of the legislation, and the fact that Congress, in the Act, merely authorized the expenditure of funds in States whose citizens were generally anxious to have them expended, there has not been a great deal of litigation involving the meaning of its language. Indeed, so far as we can tell, the first case to come to this Court involving the Act at all was Ickes v. Fox, 300 U. S. 82 (1937), and the first case to require construction of § 8 of the Act was United States v. Gerlach Live Stock Co., supra, decided nearly half a century after the enactment of the 1902 statute. [Footnote 5]The New Melones Dam, which this litigation concerns, is part of the California Central Valley Project, the largest reclamation project yet authorized under the 1902 Act. [Footnote 6] The Dam, which will impound 2.4 million acre-feet of water of California's Stanislaus River, has the multiple purposes of flood control, irrigation, municipal use, industrial use, power, recreation, water quality control, and the protection of fish and wildlife. The waters of the Stanislaus River that will be impounded behind the New Melones Dam arise and flow solely in California. Page 438 U. S. 652The United States Bureau of Reclamation, as it has with every other federal reclamation project, applied for a permit from the appropriate state agency, here the California State Water Resources Control Board, to appropriate the water that would be impounded by the Dam and later used for reclamation. [Footnote 7] After lengthy hearings, the State Board found that unappropriated water was available for the New Melones Dam during certain times of the year. Although it therefore approved the Bureau's applications, the State Board attached 25 conditions to the permit. California State Water Resources Control Board, Decision 1422 (Apr. 14, 1973). The most important conditions prohibit full impoundment until the Bureau is able to show firm commitments, or at least a specific plan, for the use of the water. [Footnote 8] The State Board Page 438 U. S. 653 concluded that, without such a specific plan of beneficial use the Bureau had failed to meet the California statutory requirements for appropriation."The limited unappropriated water resources of the State should not be committed to an applicant in the absence of a showing of his actual need for the water within a reasonable time in the future. When the evidence indicates, as it does here, that an applicant already has a right to sufficient water to meet his needs for beneficial use within the foreseeable future, rights to additional water should be withheld and that water should be reserved for other beneficial uses."Id. at 16.IIThe history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. The rivers, streams, and lakes of California were acquired by the United States under the 1848 Treaty of Guadalupe Hidalgo with the Republic of Mexico, 9 Stat. 922. Within a year of that treaty, the California gold rush began, and the settlers in this new land quickly realized that the riparian doctrine of water rights that had served well in the humid regions of the East would not work in the arid lands of the West. Other settlers coming into the intermountain area, the vast basin and range country which lies between the Rocky Mountains on the east and the Sierra Nevada and Cascade Ranges on the west, were forced to the same conclusion. In its place, the doctrine of prior appropriation, linked to beneficial use of the water, arose through local customs, laws, Page 438 U. S. 654 and judicial decisions. Even in this early stage of the development of Western water law, before many of the Western States had been admitted to the Union, Congress deferred to the growing local law. Thus, in Broder v. Water Co., 101 U. S. 274 (1879), the Court observed that local appropriation rights were "rights which the government had, by its conduct, recognized and encouraged, and was bound to protect." Id. at 101 U. S. 276.In 1850, California was admitted as a State to the Union "on an equal footing with the original States in all respects whatever." 9 Stat. 452. While § 3 of the Act admitting California to the Union specifically reserved to the United States all "public lands" within the limits of California, no provision was made for the unappropriated waters in California's streams and rivers. One school of legal commentators held the view that, under the equal footing doctrine, the Western States, upon their admission to the Union, acquired exclusive sovereignty over the unappropriated waters in their streams. In 1903, for example, one leading expert on reclamation and water law observed that"[i] t has heretofore been assumed that the authority of each State in the disposal of the water supply within its borders was unquestioned and supreme, and two of the States have constitutional provisions asserting absolute ownership of all water supplies within their bounds."E. Mead, Irrigation Institutions 372 (1903). [Footnote 9] Such commentators were not without some support from language Page 438 U. S. 655 in contemporaneous decisions of this Court. See S. Wiel, Water Rights in the Western States §§ 40-43, pp. 895 (2d ed.1908). Thus, in Kansas v. Colorado, 206 U. S. 46 (1907), the Court noted:"While arid lands are to be found mainly, if not only, in the Western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen.""* * * *" "In the argument on the demurrer, counsel for plaintiff endeavored to show that Congress had expressly imposed the common law on all this territory prior to its formation into States. . . . But when the States of Kansas and Colorado were admitted into the Union, they were admitted with the full powers of local sovereignty which belonged to other States, Pollard v. Hagan, [3 How. 212]; Shively v. Bowlby, [152 U.S. l]; Hardin v. Shedd, 190 U. S. 508, 190 U. S. 519; and Colorado, by its legislation, has recognized the right of appropriating the flowing waters to the purposes of irrigation."Id. at 206 U. S. 92 and 206 U. S. 95. And see United States v. Rio Grande Dam & Irrig. Co., 174 U. S. 690, 174 U. S. 702-703, and 174 U. S. 709 (1899).As noted earlier, reclamation of the arid lands began almost immediately upon the arrival of pioneers to the Western States. Huge sums of private money were invested in systems to transport water vast distances for mining, agriculture, and ordinary consumption. Because a very high percentage of land in the West belonged to the Federal Government, the canals and ditches that carried this water frequently crossed Page 438 U. S. 656 federal land. In 1862, Congress opened the public domain to homesteading. Homestead Act of 1862, 12 Stat. 392. And in 1866, Congress for the first time expressly opened the mineral lands of the public domain to exploration and occupation by miners. Mining Act of 1866, ch. 262, 14 Stat. 251. Because of the fear that these Acts might in some way interfere with the water rights and systems that had grown up under state and local law, Congress explicitly recognized and acknowledged the local law:"[W]henever, 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."§ 9, 14 Stat. 253. The Mining Act of 1866 was not itself a grant of water rights pursuant to federal law. Instead, as this Court observed, the Act was "a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use.'" United States v. Rio Grande Dam & Irrig. Co., supra at 174 U. S. 705. Congress intended"to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition. [Footnote 10]"Basey v. Gallagher, 20 Wall. 670, 87 U. S. 684 (1875). See Broder v. Water Co., supra at 101 U. S. 276; Jennison v. Kirk, 98 U. S. 453, 98 U. S. 459-461 (1879). [Footnote 11] Page 438 U. S. 657In 1877, Congress took its first step toward encouraging the reclamation and settlement of the public desert lands in the West, and made it clear that such reclamation would generally follow state water law. In the Desert Land Act of 1877, Congress provided for the homesteading of arid public lands in larger tracts"by [the homesteader's] conducting water upon the same, within the period of three years [after filing a declaration to do so], Provided however that the right to the use of water by the person so conducting the same . . . shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights."Ch. 107, 19 Stat. 377 (emphasis added). This Court has had an opportunity to construe the 1877 Desert Land Act before. In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142 (1935), Mr. Justice Sutherland [Footnote 12] explained that, through this language, Congress Page 438 U. S. 658 "effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself." Id. at 295 U. S. 158. The nonnavigable waters thereby severed were "reserved for the use of the public under the laws of the states and territories." Id. at 295 U. S. 162. Congress' purpose was not to federalize the prior appropriation doctrine already evolving under local law. Quite the opposite:"What we hold is that, following the act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common law rule in respect of riparian rights should obtain. For since 'Congress cannot enforce either rule upon any state,' Kansas v. Colorado, 206 U. S. 46, 206 U. S. 94, the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, insofar as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. See Wyoming v. Colorado, 259 U. S. 419, 259 U. S. 465."Id. at 295 U. S. 163-164. See also Gutierres v. Albuquerque Land Irrig. Co., 188 U. S. 545, 188 U. S. 552-553 (1903); Ickes v. Fox, 300 U. S. 82, 300 U. S. 95 (1937); Brush v. Commissioner, 300 U. S. 352, 300 U. S. 367 (1937). Page 438 U. S. 659Congress next addressed the task of reclaiming the arid lands of the West 11 years later. The opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or other irrigation works, impeding future reclamation efforts. Congress addressed this problem in the Act of Oct. 2, 1888, 25 Stat. 527, which provided:"[A]ll the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement or occupation until further provided by law."Unfortunately, this language, which had been hastily drafted and passed, had the practical effect of reserving all of the public lands in the West from settlement. [Footnote 13] As a result, "there came a perfect storm of indignation from the people of the West, which resulted in the prompt repeal of the extraordinary [1888] provision." 29 Cong.Rec.1955 (1897) (statement of Cong. McRae). In the Act of Aug. 30, 1890, 26 Stat. 391, Congress repealed the 1888 provision except insofar as it reserved reservoir sites. Then, in the Act of Mar. 3, 1891, 26 Stat. 1101, as amended, 43 U.S.C. § 946, Congress provided for rights-of-way across the public lands to be used by "any canal or ditch company formed for the purpose of irrigation." The apparent purpose of the 1890 and 1891 Acts was to reserve reservoir sites from settlement, but to open them for use in reclamation projects. [Footnote 14] As before, Congress expressly indicated Page 438 U. S. 660 that the reclamation would be controlled by state water law: [Footnote 15]"[T]he right of way through the public lads and reservations of the United States is hereby granted . . . for the purpose of irrigation . . . to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals . . . ; Provided, That . . . the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories."26 Stat. 1101 (emphasis added).The Secretary of the Interior, unfortunately, interpreted the 1890 and 1891 Acts as reserving governmentally surveyed reservoir sites from use, rather than for use. Congress rectified this interpretation in the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, which provided:"[A]ll reservoir sites reserved or to be reserved shall be open to use and occupation under the right-of-way Act of March third, eighteen hundred and ninety-one. And any State is hereby authorized to improve and occupy such reservoir sites to the same extent as an individual or Page 438 U. S. 661 private corporation, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate."The final provision of the 1897 Act was proposed as a floor amendment by Representative, later Speaker, Cannon to expressly preserve States' control over reclamation within their borders. It was clearly the opinion of a majority of the Congressmen who spoke on the bill, however, that such an amendment was unnecessary except out of an excess of caution. [Footnote 16] According to Congressman Lacey, Chairman of the House Committee on Public Lands and a principal sponsor of the Page 438 U. S. 662 1897 Act, the water through which the reclamation would be accomplished"does not belong to the [Federal] Government. The reservoirs in which the water is stored belong to the Government, but the water belongs to the States and will be controlled by them. The amendment proposed by the gentleman from Illinois [Mr. CANNON] relieves this measure from all possible doubt upon that subject. I think there could be no doubt anyhow, but this amendment takes away the possibility of any question being raised as to the right of the States and Territories to regulate and control the management and the price of the water."29 Cong.Rec.1952 (1897).Congressman Lacey's statement found reflection in contemporaneous decisions of this Court holding that, with limited exceptions not relevant to reclamation, authority over intrastate waterways lies with the States. In United States v. Rio Grande Dam Irrig. Co., for example, New Mexico's authority to adopt a prior appropriation system of water rights for the Rio Grande River was challenged. The Court unhesitatingly held that,"as to every stream within its dominion, a State may change [the] common law rule and permit the appropriation of the flowing waters for such purposes as it deems wise."174 U.S. at 174 U. S. 702-703. The Court noted that there are two limitations to the State's exclusive control of its streams -- reserved rights "so far at least as may be necessary for the beneficial uses of the government property," id. at 174 U. S. 703, and the navigation servitude. The Court, however, was careful to emphasize with respect to these limitations on the States' power that, except where the reserved rights or navigation servitude of the United States are invoked, the State has total authority over its internal waters."Unquestionably the State . . . has a right to appropriate its waters, and the United States may not question such appropriation, unless thereby the navigability of the [river] be disturbed."Id. at 174 U. S. 709. Page 438 U. S. 663Similarly, in Kansas v. Colorado, 206 U. S. 46 (1907), the United States claimed that it had a right in the Arkansas River superior to that of Kansas and Colorado stemming from its power "to control the whole system of the reclamation of arid lands." The Court disagreed, and held that state reclamation law must prevail. The United States, of course, could appropriate water and build projects to reclaim its own public lands."As to those lands within the limits of the States, at least of the Western States, the National Government is the most considerable owner, and has power to dispose of and make all needful rules and regulations respecting its property."Id. at 206 U. S. 92. But federal legislation could not "override state laws in respect to the general subject of reclamation." Ibid. "[E]ach State has full jurisdiction over the lands within its borders, including the beds of streams and other waters." Id. at 206 U. S. 93. With respect to the question that had been presented in Rio Grande Dam & Irrig. Co., the Court reaffirmed that each State"may determine for itself whether the common law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any State."206 U.S. at 206 U. S. 94.IIIIt is against this background that Congress passed the Reclamation Act of 1902. With the help of the 1891 and 1897 Acts, private and state reclamation projects had gone far toward reclaiming the arid lands, [Footnote 17] but massive projects were now needed to complete the goal and these were beyond the means of private companies and the States. In 1900, therefore, all of the major political parties endorsed federal funding of reclamation projects. While the Democratic Party's platform specified none of the attributes of a federal program other than to recommend that it be "intelligent," Page 438 U. S. 664 K. Porter & D. Johnson, National Party Platforms 115 (2d ed.1961), the Republicans specifically recommended that the reclamation program "reserv[e] control of the distribution of water for irrigation to the respective States and territories." Id. at 123. In his first message to Congress after assuming the Presidency, Theodore Roosevelt continued the cry for national funding of reclamation, and again recommended that state law control the distribution of water. [Footnote 18]As a result of the public demand for federal reclamation funding, a bill was introduced into the 57th Congress to use the money from the sale of public lands in the Western States to build reclamation projects in those same States. The projects would be built on federal land, and the actual construction and operation of the projects would be in the hands of the Secretary of the Interior. But the Act clearly provided that state water law would control in the appropriation and later distribution of the water. As originally introduced, § 8 of the Reclamation Act provided: [Footnote 19]"[N]othing in this act shall be construed as affecting or intended to affect or to in any way interfere with Page 438 U. S. 665 the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation; but State and Territorial laws shall govern and control in the appropriation, use, and distribution of the waters rendered available by the works constructed under the provisions of this act: Provided, That the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."From the legislative history of the Reclamation Act of 1902, it is clear that state law was expected to control in two important respects. First, and of controlling importance to this case, the Secretary would have to appropriate, purchase, or condemn necessary water rights in strict conformity with state law. According to Representative Mondell, the principal sponsor of the reclamation bill in the House, once the Secretary determined that a reclamation project was feasible and that there was an adequate supply of water for the project,"the Secretary of the Interior would proceed to make the appropriation of the necessary water by giving the notice and complying with the forms of law of the State or Territory in which the works were located."35 Cong.Rec. 6678 (1902) (emphasis added). The Secretary of the Interior could not take any action in appropriating the waters of the state streams"which could not be undertaken by an individual or corporation if it were in the position of the Government as regards the ownership of its lands."H.R.Rep. No. 794, 57th Cong., 1st Sess., 7-8 (1902). Thus, in response to the Page 438 U. S. 666 statement of an opponent to the bill that the Secretary would be allowed to condemn water even if in violation of state law, Representative Mondell briskly responded:"Whereabouts does the gentleman find any such provision as he is arguing? Whereabouts in the bill is there anything that attempts to give the Federal Government any right to condemn or to take any water right or do anything which an individual could not do? Will the gentleman point out any place or any provision for the Federal Government to do anything that I could not do if I owned the public land?""Mr. RAY of New York. Do you say there is nothing in this bill that provides for condemnation?""Mr. MONDELL. The bill provides explicitly that even an appropriation of water can not be made except under State law."35 Cong.Rec. 6687 (1902) (emphasis added). [Footnote 20] Page 438 U. S. 667Second, once the waters were released from the Dam, their distribution to individual landowners would again be controlled by state law. As explained by Senator Clark of Wyoming, one of the principal supporters of the reclamation bill in the Senate, "the control of waters after leaving the reservoirs shall be vested in the States and Territories through which such waters flow." Id. at 2222. As Senator Clark went on to explain:"[I]t is right and proper that the various States and Territories should control in the distribution. The conditions in each and every State and Territory are different. What would be applicable in one locality is totally and absolutely inapplicable in another. . . . In each and every one of the States and Territories affected, after a long series of experiments, after a due consideration of conditions, there has arisen a set of men who are especially qualified to deal with local conditions.""Every one of these States and Territories has an accomplished and experienced corps of engineers who for years have devoted their energies and their learning to a solution of this problem of irrigation in their individual localities. To take from these experienced men, to take from the legislatures of the various States and Territories, the control of this question at the present time would be something little less than suicidal. They are the men qualified to deal with the question, the laws are written upon their statute books and read of all men, and in every one of these States and Territories the laws have been passed that most diligently regard the rights of the settler and of the farmer. . . ."Ibid. As Representative Sutherland, later to be a Justice of this Court, succinctly put it, "if the appropriation and use were not under the provisions of the State law, the utmost confusion would prevail." Id. at 6770. Different water rights in Page 438 U. S. 668 the same State would be governed by different laws, and would frequently conflict. [Footnote 21]A principal motivating factor behind Congress' decision to Page 438 U. S. 669 defer to state law was thus the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality. Congress also intended to"follo[w] the well established precedent in national legislation of recognizing local and State laws relative to the appropriation and distribution of water."Id. at 6678 (Cong. Mondell). As Representative Mondell noted after reviewing the legislation discussed in Part II of this opinion:"Every act since that of April 26, 1866, has recognized local laws and customs appertaining to the appropriation and distribution of water used in irrigation, and it has been deemed wise to continue our policy in this regard."Id. at 6679. [Footnote 22]Both sponsors and opponents of the Reclamation Act also expressed constitutional doubts as to Congress' power to override the States' regulation of waters within their borders. Congress was fully aware that the Supreme Court had "in Page 438 U. S. 670 several decisions recognized the right of the State to regulate and control the use of water within its borders." Ibid. (Cong. Mondell). According to the House Report "Section 8 recognizes State control over waters of nonnavigable streams such as are used in irrigation." H.R.Rep. No. 794, 57th Cong., 1st Sess., 6 (1902) (emphasis added). [Footnote 23]IVFor almost half a century, this congressionally mandated division between federal and state authority worked smoothly. No project was constructed without the approval of the Secretary of the Interior, and the United States, through this official, preserved its authority to determine how federal funds should be expended. But state laws relating to water rights were observed in accordance with the congressional directive contained in § 8 of the Act of 1902. In 1958, however, the first of two cases was decided by this Court in which private landowners or municipal corporations contended that state water law had the effect of overriding specific congressional directives to the Secretary of the Interior as to the operation of federal reclamation projects. In Ivanhoe Irrigation District v. McCracken, 357 U. S. 275, the Supreme Court of California decided that Page 438 U. S. 671 California law forbade the 160-acre limitation on irrigation water deliveries expressly written into § 5 of the Reclamation Act of 1902, and that therefore, under § 8 of the Reclamation Act, the Secretary was required to deliver reclamation water without regard to the acreage limitation. Both the State of California and the United States appealed from this judgment, and this Court reversed it, saying:"Section 5 is a specific and mandatory prerequisite laid down by the Congress as binding in the operation of reclamation projects, providing that '[n]o right to the use of water . . . shall be sold for a tract exceeding one hundred and sixty acres to any one landowner. . . .' Without passing generally on the coverage of § 8 in the delicate area of federal-state relations in the irrigation field, we do not believe that the Congress intended § 8 to override the repeatedly reaffirmed national policy of § 5."357 U.S. at 357 U. S. 291-292. Five years later, in City of Fresno v. California, 372 U. S. 627 (1963), this Court affirmed a decision of the United States Court of Appeals for the Ninth Circuit holding that § 8 did not require the Secretary of the Interior to ignore explicit congressional provisions preferring irrigation use over domestic and municipal use. [Footnote 24] Page 438 U. S. 672Petitioners do not ask us to overrule these holdings, nor are we presently inclined to do so. [Footnote 25] Petitioners instead ask us to hold that a State may impose any condition on the "control, appropriation, use, or distribution of water" through a federal reclamation project that is not inconsistent with clear congressional directives respecting the project. Petitioners concede, and the Government relies upon, dicta in our cases that may point to a contrary conclusion. Thus, in Ivanhoe, the Court went beyond the actual facts of that case and stated:"As we read § 8, it merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. . . . We read nothing in § 8 that compels the Page 438 U. S. 673 United States to deliver water on conditions imposed by the State."357 U.S. at 357 U. S. 291-92. Like dictum was repeated in City of Fresno, supra at 372 U. S. 630, and in this Court's opinion in Arizona v. California, 373 U. S. 546 (1963), where the Court also said:"The argument that § 8 of the Reclamation Act requires the United States in the delivery of water to follow priorities laid down by state law has already been disposed of by this Court in Ivanhoe Irrig. Dist. v. McCracken, . . . and reaffirmed in City of Fresno v. California. . . . Since § 8 of the Reclamation Act did not subject the Secretary to state law in disposing of water in [Ivanhoe], we cannot, consistently with Ivanhoe, hold that the Secretary must be bound by state law in disposing of water under the Project Act."Id. at 373 U. S. 586-587.While we are not convinced that the above language is diametrically inconsistent with the position of petitioners, [Footnote 26] or that it squarely supports the United States, it undoubtedly goes further than was necessary to decide the cases presented to the Court. Ivanhoe and City of Fresno involved conflicts between § 8, requiring the Secretary to follow state law as to water rights, and other provisions of Reclamation Acts that placed specific limitations on how the water was to be distributed. Here the United States contends that it may ignore state law even if no explicit congressional directive conflicts with the conditions imposed by the California State Water Control Board. [Footnote 27] Page 438 U. S. 674In Arizona v. California, the States had asked the Court to rule that state law would control in the distribution of water from the Boulder Canyon Project, a massive multistate reclamation project on the Colorado River. [Footnote 28] After reviewing the legislative history of the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq., the Court concluded that, because of the unique size and multistate scope of the Project, Congress did not intend the States to interfere with the Secretary's power to determine with whom and on what terms water contracts would be made. [Footnote 29] While the Court, in rejecting the States' claim, repeated the language from Ivanhoe and City of Fresno as to the scope of § 8, there was no need for it to reaffirm such language except as it related to the singular legislative history of the Boulder Canyon Project Act.But because there is at least tension between the above-quoted dictum and what we conceive to be the correct reading of § 8 of the Reclamation Act of 1902, we disavow the dictum to the extent that it would prevent petitioners from imposing conditions on the permit granted to the United States which are not inconsistent with congressional provisions authorizing the project in question. Section 8 cannot be read to require the Secretary to comply with state law only when it becomes necessary to purchase or condemn vested water rights. That Page 438 U. S. 675 section does, of course, provide for the protection of vested water rights, but it also requires the Secretary to comply with state law in the "control, appropriation, use, or distribution of water." Nor, as the United States contends, does § 8 merely require the Secretary of the Interior to file a notice with the State of his intent to appropriate, but to thereafter ignore the substantive provisions of state law. The legislative history of the Reclamation Act of 1902 makes it abundantly clear that Congress intended to defer to the substance, as well as the form, of state water law. The Government's interpretation would trivialize the broad language and purpose of § 8.Indeed, until recently, it has been the consistent position of the Secretary of the Interior and the Bureau of Reclamation, who are together responsible for executing the provisions of the Reclamation Act of 1902, that, in appropriating water for reclamation purposes, the Bureau must comply with state law. The Bureau's operating instructions, for example, provide:"State and Federal law and policy establish the framework for project formulation. Project plans must comply with State legal provisions or priorities for beneficial use of water. . . . In some cases, . . . State laws . . . have been modified to meet specific conditions in the authorization of particular projects."U.S. Department of Interior, Bureau of Reclamation, Reclamation Instructions § 116.3.1 (1959) (emphasis added)."The Reclamation Act recognizes the interests and rights of the States in the utilization and control of their water resources, and requires the Bureau, in carrying out provisions of the Act, to proceed in conformity with State water laws. Since the construction of a reservoir and the subsequent storage and release of water for beneficial purposes normally entails stream regulation, it is necessary to reach an understanding with the States regarding Page 438 U. S. 676 reservoir operating limitations."Id. § 231.5.1 (1957) (emphasis added). With respect to the Central Valley Project, the Bureau advised Congress that "[r]eclamation law . . . recognizes State water law and rights thereunder,'" and that "Bureau filings on water are subject to State approval." 95 Cong.Rec. A961 (1949). [Footnote 30]Indeed, until the unnecessarily broad language of the Court's opinion in Ivanhoe, both the uniform practice of the Bureau of Reclamation and the opinions of the Court clearly supported petitioners' argument that they may impose any condition not inconsistent with congressional directive. In holding that the United States was not an indispensable party in Nebraska v. Wyoming, 295 U. S. 40 (1935), this Court observed:"[T]he Secretary of the Interior, pursuant to the [1902] Act, applied to the state engineer of Wyoming and obtained from him permission . . . to appropriate waters, and was awarded a priority date. . . . All of the acts of the Reclamation Bureau in operating the reservoirs so as to impound and release waters of the river are subject to the authority of Wyoming.""* * * *" "The bill alleges, and we know as matter of law [citing § 8 of the 1902 Reclamation Act], that the Secretary and his agents, acting by authority of the Reclamation Act and supplementary legislation, must obtain permits and priorities for the use of water from the State of Wyoming Page 438 U. S. 677 in the same manner as a private appropriator or an irrigation district formed under the state law."Id. at 295 U. S. 42-43. Ten years later, in its final decision in Nebraska v. Wyoming, 325 U. S. 589 (1945), the Court elaborated on its original observation:"All of these steps make plain that [the Reclamation] projects were designed, constructed and completed according to the pattern of state law as provided in the Reclamation Act. We can say here what was said in Ickes v. Fox, [300 U.S. 82 (1937)]:""Although the government diverted, stored and distributed the water, the contention of petitioner that thereby ownership of the water or water rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the landowners; and, by the terms of the law and of the contract already referred to, the water rights became the property of the landowners, wholly distinct from the property right of the government in the irrigation works. . . . The government was and remained simply a carrier and distributor of the water . . . , with the right to receive the sums stipulated in the contracts as reimbursement for the cost of construction and annual charges for operation and maintenance of the works.""* * * *" "We have, then, a direction by Congress to the Secretary of the Interior to proceed in conformity with state laws in appropriating water for irrigation purposes. We have a compliance with that direction. . . ."Id. at 325 U. S. 613-615.The United States suggests that, even if the Congress of 1902 intended the Secretary of the Interior to comply with state law, more recent legislative enactments have subjected reclamation projects "to a variety of federal policies that leave no room for state controls on the operation of a project or on Page 438 U. S. 678 the choice of uses it will serve." [Footnote 31] Brief for United States 89. While later Congresses have indeed issued new directives to the Secretary, they have consistently reaffirmed that the Secretary should follow state law in all respects not directly inconsistent with these directives. The Flood Control Act of 1944, 58 Stat. 888, for example, which first authorized the New Melones Dam, provides that it is the"policy of the Congress to recognize the interests and rights of the States in determining the development of watersheds within their borders, and likewise their interests and rights in water utilization and control."Perhaps the most eloquent expression of the need to observe state water law is found in the Senate Report on the McCarran Amendment, 43 U.S.C. § 666(a), which subject the United States to state court jurisdiction for general stream adjudications:"In the arid Western States, for more than 80 years, the law has been the water above and beneath the surface of the ground belongs to the public, and the right to the use thereof is to be acquired from the State in which it is found, which State is vested with the primary control thereof.""* * * *" "Since it is clear that the States have the control of water within their boundaries, it is essential that each and every owner along a given water course, including the United States, must be amenable to the law of the State, Page 438 U. S. 679 if there is to be a proper administration of the water law as it has developed over the years."S.Rep. No. 755, 82d Cong., 1st Sess., 3, 6 (1951).VBecause the District Court and the Court of Appeals both held that California could not impose any conditions whatever on the United States' appropriation permit, those courts did not reach the United States' alternative contention that the conditions actually imposed are inconsistent with congressional directives as to the New Melones Dam. Nor did they reach California's contention that the United States is barred by principles of collateral estoppel from challenging the consistency of the permit conditions. Assuming, arguendo, that the United States is still free to challenge the consistency of the conditions, resolution of their consistency may well require additional factfinding. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtCalifornia v. United States, 438 U.S. 645 (1978)California v. United StatesNo. 77-285Argued March 28, 1978Decided July 3, 1978438 U.S. 645SyllabusThe United States Bureau of Reclamation applied to the California State Water Resources Control Board for a permit to appropriate water that would be impounded by the New Melones Dam, a unit of the California Central Valley Project. Congress specifically directed that the Dam be constructed and operated pursuant to the Reclamation Act of 1902, which established a program for federal construction and operation of reclamation projects to irrigate arid western land. Section 8 of that Act provides that"nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, . . . and the Secretary of the Interior in carrying out the provisions of this Act, shall proceed in conformity with such laws. . . ."After lengthy hearings, the Board, having found that unappropriated water was available for the project during certain times of the year, approved the Bureau's application, but attached 25 conditions to the permit (the most important of which prohibited full impoundment until the Bureau was able to show a specific plan for use of the water) which the Board concluded were necessary to meet California's statutory water appropriation requirements. The United States then brought this action against petitioners (the State, the Board, and its members) seeking a declaratory judgment that the United States may impound whatever unappropriated water is necessary for a federal reclamation project without complying with state law. The District Court held that, as a matter of comity, the United States must apply to the State for an appropriation permit, but that the State must issue the permit without conditions if there is sufficient unappropriated water. The Court of Appeals affirmed, but held that § 8, rather than comity, requires the United States to apply for a permit.Held:1. Under the clear language of § 8 and in light of its legislative history, a State may impose any condition on "control, appropriation, use or distribution of water" in a federal reclamation project that is not inconsistent with clear congressional directives respecting the project. To the extent that petitioners would be prevented by dicta that may Page 438 U. S. 646 point to a contrary conclusion in Ivanhoe Irrigation District v. McCracken, 357 U. S. 275, City of Fresno v. California, 372 U. S. 627, and Arizona v. California, 373 U. S. 546, from imposing conditions in this case that are not inconsistent with congressional directives authorizing the project in question, those dicta are disavowed. Pp. 438 U. S. 653-679.2. Whether the conditions imposed by the Board in this case are inconsistent with congressional directives as to the New Melones Dam and issues involving the consistency of the conditions remain to be resolved. P. 438 U. S. 679.558 F.2d 1347, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, POWELL, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 438 U. S. 679. Page 438 U. S. 647

1987_87-6

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Federal Rule of Evidence 404(b) provides:"Other crimes, wrongs, or acts. -- Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."This case presents the question whether the district court must itself make a preliminary finding that the Government has proved the "other act" by a preponderance of the evidence before it submits the evidence to the jury. We hold that it need not do so.Petitioner, Guy Rufus Huddleston, was charged with one count of selling stolen goods in interstate commerce, 18 U.S.C. § 2315, and one count of possessing stolen property in interstate commerce, 18 U.S.C. § 659. The two counts related to two portions of a shipment of stolen Memorex videocassette tapes that petitioner was alleged to have possessed and sold, knowing that they were stolen.The evidence at trial showed that a trailer containing over 32,000 blank Memorex videocassette tapes with a manufacturing cost of $4.53 per tape was stolen from the Overnight Express yard in South Holland, Illinois, sometime between April 11 and 15, 1985. On April 17, 1985, petitioner contacted Karen Curry, the manager of the Magic Rent-to-Own Page 485 U. S. 683 in Ypsilanti, Michigan, seeking her assistance in selling a large number of blank Memorex videocassette tapes. After assuring Curry that the tapes were not stolen, he told her he wished to sell them in lots of at least 500 at $2.75 to $3 per tape. Curry subsequently arranged for the sale of a total of 5,000 tapes, which petitioner delivered to the various purchasers -- who apparently believed the sales were legitimate.There was no dispute that the tapes which petitioner sold were stolen; the only material issue at trial was whether petitioner knew they were stolen. The District Court allowed the Government to introduce evidence of "similar acts" under Rule 404(b), concluding that such evidence had "clear relevance as to [petitioner's knowledge]." App. 11. The first piece of similar act evidence offered by the Government was the testimony of Paul Toney, a record store owner. He testified that. in February. 1985, petitioner offered to sell new 12" black and white televisions for $28 apiece. According to Toney, petitioner indicated that he could obtain several thousand of these televisions. Petitioner and Toney eventually traveled to the Magic Rent-to-Own, where Toney purchased 20 of the televisions. Several days later, Toney purchased 18 more televisions.The second piece of similar act evidence was the testimony of Robert Nelson, an undercover FBI agent posing as a buyer for an appliance store. Nelson testified that, in May, 1985, petitioner offered to sell him a large quantity of Amana appliances -- 28 refrigerators, 2 ranges, and 40 icemakers. Nelson agreed to pay $8,000 for the appliances. Petitioner was arrested shortly after he arrived at the parking lot where he and Nelson had agreed to transfer the appliances. A truck containing the appliances was stopped a short distance from the parking lot, and Leroy Wesby, who was driving the truck, was also arrested. It was determined that the appliances had a value of approximately $20,000 and were part of a shipment that had been stolen. Page 485 U. S. 684Petitioner testified that the Memorex tapes, the televisions, and the appliances had all been provided by Leroy Wesby, who had represented that all of the merchandise was obtained legitimately. Petitioner stated that he had sold 6,500 Memorex tapes for Wesby on a commission basis. Petitioner maintained that all of the sales for Wesby had been on a commission basis, and that he had no knowledge that any of the goods were stolen.In closing, the prosecution explained that petitioner was not on trial for his dealings with the appliances or the televisions. The District Court instructed the jury that the similar acts evidence was to be used only to establish petitioner's knowledge, and not to prove his character. The jury convicted petitioner on the possession count only.A divided panel of the United States Court of Appeals for the Sixth Circuit initially reversed the conviction, concluding that, because the Government had failed to prove by clear and convincing evidence that the televisions were stolen, the District Court erred in admitting the testimony concerning the televisions. 802 F.2d 874 (1986). [Footnote 1] The panel subsequently granted rehearing to address the decision in United States v. Ebens, 800 F.2d 1422 (CA6 1986), in which a different panel had held:"Courts may admit evidence of prior bad acts if the proof shows by a preponderance of the evidence that the defendant did in fact commit the act."Id. at 1432. On rehearing, the court affirmed the conviction."Applying the preponderance of the evidence standard adopted in Ebens, we cannot say that the district court abused its discretion in admitting evidence of the similar acts in question here."811 F.2d 974, 975 (1987) (per curiam). The court noted that the evidence concerning the televisions was admitted for a proper purpose, and that the probative value of this evidence was not outweighed by its potential prejudicial effect. Page 485 U. S. 685We granted certiorari, 484 U.S. 894 (1987), to resolve a conflict among the Courts of Appeals as to whether the trial court must make a preliminary finding before "similar act" and other Rule 404(b) evidence is submitted to the jury. [Footnote 2] We conclude that such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.Federal Rule of Evidence 404(b) -- which applies in both civil and criminal cases -- generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge. Extrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct. The actor in the instant case was a criminal defendant, and the act in question was "similar" to the one with which he was charged. Our use of these terms Page 485 U. S. 686 is not meant to suggest that our analysis is limited to such circumstances.Before this Court, petitioner argues that the District Court erred in admitting Toney's testimony as to petitioner's sale of the televisions. [Footnote 3] The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. The Government's theory of relevance was that the televisions were stolen, and proof that petitioner had engaged in a series of sales of stolen merchandise from the same suspicious source would be strong evidence that he was aware that each of these items, including the Memorex tapes, was stolen. [Footnote 4] As such, the sale of the televisions was a "similar act" only if the televisions were stolen. Petitioner acknowledges that this evidence was admitted for the proper purpose of showing his knowledge that the Memorex tapes were stolen. He asserts, however, that the evidence should not have been admitted because the Government failed to prove to the District Court that the televisions were in fact stolen.Petitioner argues from the premise that evidence of similar acts has a grave potential for causing improper prejudice. For instance, the jury may choose to punish the defendant for the similar rather than the charged act, or the jury may infer that the defendant is an evil person inclined to violate the law. Because of this danger, petitioner maintains, the jury ought not to be exposed to similar act evidence until the trial court has heard the evidence and made a determination under Federal Rule of Evidence 104(a) that the defendant Page 485 U. S. 687 committed the similar act. Rule 104(a) provides that"[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b)."According to petitioner, the trial court must make this preliminary finding by at least a preponderance of the evidence. [Footnote 5]We reject petitioner's position, for it is inconsistent with the structure of the Rules of Evidence and with the plain language of Rule 404(b). Article IV of the Rules of Evidence deals with the relevancy of evidence. Rules 401 and 402 establish the broad principle that relevant evidence -- evidence that makes the existence of any fact at issue more or less probable -- is admissible unless the Rules provide otherwise. Rule 403 allows the trial judge to exclude relevant evidence if, among other things, "its probative value is substantially outweighed by the danger of unfair prejudice." Rules 404 through 412 address specific types of evidence that have generated problems. Generally, these latter Rules do not flatly prohibit the introduction of such evidence, but instead limit the purpose for which it may be introduced. Rule 404(b), for example, protects against the introduction of extrinsic act evidence when that evidence is offered solely to prove character. The text contains no intimation, however, that any preliminary showing is necessary before such evidence may be Page 485 U. S. 688 introduced for a proper purpose. If offered for such a proper purpose, the evidence is subject only to general strictures limiting admissibility such as Rules 402 and 403.Petitioner's reading of Rule 404(b) as mandating a preliminary finding by the trial court that the act in question occurred not only superimposes a level of judicial oversight that is nowhere apparent from the language of that provision, but it is simply inconsistent with the legislative history behind Rule 404(b). The Advisory Committee specifically declined to offer any "mechanical solution" to the admission of evidence under 404(b). Advisory Committee's Notes on Fed.Rule Evid. 404(b), 28 U.S.C.App. p. 691. Rather, the Committee indicated that the trial court should assess such evidence under the usual rules for admissibility:"The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403."Ibid.; see also S.Rep. No. 93-1277, p. 25 (1974) ("[I]t is anticipated that, with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e., prejudice, confusion or waste of time").Petitioner's suggestion that a preliminary finding is necessary to protect the defendant from the potential for unfair prejudice is also belied by the Reports of the House of Representatives and the Senate. The House made clear that the version of Rule 404(b) which became law was intended to "plac[e] greater emphasis on admissibility than did the final Court version." H.R.Rep. No. 93-650, p. 7 (1973). The Senate echoed this theme:"[T]he use of the discretionary word 'may' with respect to the admissibility of evidence of crimes, wrongs, or other acts is not intended to confer any arbitrary discretion on the trial judge."S.Rep. No. 93-1277, supra, at 24. Thus, Congress was not nearly so concerned with the potential prejudicial effect of Rule 404(b) evidence Page 485 U. S. 689 as it was with ensuring that restrictions would not be placed on the admission of such evidence.We conclude that a preliminary finding by the court that the Government has proved the act by a preponderance of the evidence is not called for under Rule 104(a). [Footnote 6] This is not to say, however, that the Government may parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo. Evidence is admissible under Rule 404(b) only if it is relevant."Relevancy is not an inherent characteristic of any item of evidence, but exists only as a relation between an item of evidence and a matter properly provable in the case."Advisory Committee's Notes on Fed.Rule Evid. 401, 28 U.S.C.App. p. 688. In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor. See United States v. Beechum, 582 F.2d 898, 912-913 (CA5 1978) (en banc). In the instant case, the evidence that petitioner was selling the televisions was relevant under the Government's theory only if the jury could reasonably find that the televisions were stolen.Such questions of relevance conditioned on a fact are dealt with under Federal Rule of Evidence 104(b). Beechum, supra, at 912-913; see also E. Imwinkelried, Uncharged Misconduct Evidence § 2.06 (1984). Rule 104(b) provides: Page 485 U. S. 690"When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact -- here, that the televisions were stolen -- by a preponderance of the evidence. See 21 C. Wright & K. Graham, Federal Practice and Procedure § 5054, p. 269 (1977). The trial court has traditionally exercised the broadest sort of discretion in controlling the order of proof at trial, and we see nothing in the Rules of Evidence that would change this practice. Often the trial court may decide to allow the proponent to introduce evidence concerning a similar act, and at a later point in the trial assess whether sufficient evidence has been offered to permit the jury to make the requisite finding. [Footnote 7] If the proponent has failed to meet this minimal standard of proof, the trial court must instruct the jury to disregard the evidence.We emphasize that, in assessing the sufficiency of the evidence under Rule 104(b), the trial court must consider all Page 485 U. S. 691 evidence presented to the jury."[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts."Bourjaily v. United States, 483 U. S. 171, 483 U. S. 179-180 (1987). In assessing whether the evidence was sufficient to support a finding that the televisions were stolen, the court here was required to consider not only the direct evidence on that point -- the low price of the televisions, the large quantity offered for sale, and petitioner's inability to produce a bill of sale -- but also the evidence concerning petitioner's involvement in the sales of other stolen merchandise obtained from Wesby, such as the Memorex tapes and the Amana appliances. Given this evidence, the jury reasonably could have concluded that the televisions were stolen, and the trial court therefore properly allowed the evidence to go to the jury.We share petitioner's concern that unduly prejudicial evidence might be introduced under Rule 404(b). See Michelson v. United States, 335 U. S. 469, 335 U. S. 475-476 (1948). We think, however, that the protection against such unfair prejudice emanates not from a requirement of a preliminary finding by the trial court, but rather from four other sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402 -- as enforced through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice, [Footnote 8] see Advisory Committee's Notes on Fed.Rule Evid. 404(b), 28 U.S.C.App. p. 691; S.Rep. No. 93-1277, at 25; and fourth, from Federal Rule of Evidence 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to Page 485 U. S. 692 be considered only for the proper purpose for which it was admitted. See United States v. Ingraham, 832 F.2d 229, 235 (CA1 1987).Affirmed

U.S. Supreme CourtHuddleston v. United States, 485 U.S. 681 (1988)Huddleston v. United StatesNo. 87-6. Argued March 23, 1988Decided May 2, 1988485 U.S. 681SyllabusFederal Rule of Evidence 404(b) provides that evidence of "other crimes, wrongs, or acts" is not admissible to prove a person's character, but may be admissible for other purposes, such as proof of knowledge. Petitioner was charged under federal law with the knowing possession and sale of stolen videocassette tapes. At his trial, the District Court allowed the Government to introduce as evidence of "similar acts" under Rule 404(b) evidence of petitioner's involvement in a series of sales of allegedly stolen televisions and appliances from the same suspicious source as the tapes, concluding that such evidence had clear relevance as to petitioner's knowledge that the tapes were stolen. The jury convicted petitioner on the possession count only, and the Court of Appeals ultimately affirmed, declaring that it could not say that the District Court had abused its discretion in admitting the "similar acts" evidence under United States v. Ebens, 800 F.2d 1422 (CA6), which authorized courts to admit such evidence if the proof showed by a preponderance of the evidence that the defendant did in fact commit the prior bad act.Held: The district court need not itself make a preliminary finding that the Government has proved the "other act" by a preponderance of the evidence before it submits "similar acts" and other Rule 404(b) evidence to the jury. The requirement of such a preliminary finding would be inconsistent with the structure of Article IV of the Rules, which allows the admission of relevant evidence for a proper purpose subject only to general strictures, with Rule 404(b)'s plain language, and with the legislative history behind that Rule. Rather, "similar" acts evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act. Here, petitioner does not dispute that the evidence of the appliance sales was properly admitted. Moreover, the trial court properly allowed the evidence of the television sales to go to the jury, since the jury reasonably could have concluded that the televisions were stolen in light of the low price sought by petitioner, the large quantity of televisions he offered for sale, his inability to produce a bill of sale, and his involvement in the sales of the stolen tapes and appliances. Pp. 485 U. S. 685-692.811 F.2d 974, affirmed. Page 485 U. S. 682

1983_82-1213

JUSTICE REHNQUIST delivered the opinion of the Court.Respondent Benjamin Quarles was charged in the New York trial court with criminal possession of a weapon. The trial court suppressed the gun in question, and a statement made by respondent, because the statement was obtained by police before they read respondent his "Miranda rights." That ruling was affirmed on appeal through the New York Court of Appeals. We granted certiorari, 461 U.S. 942 (1983), and we now reverse. [Footnote 1] We conclude that, under the circumstances involved in this case, overriding considerations of public safety justify the officer's failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon.On September 11, 1980, at approximately 12:30 a. m., Officer Frank Kraft and Officer Sal Scarring were on road patrol in Queens, N.Y. when a young woman approached their car. She told them that she had just been raped by a black male, approximately six feet tall, who was wearing a black jacket with the name "Big Ben" printed in yellow letters on the back. She told the officers that the man had just entered Page 467 U. S. 652 an A & P supermarket located nearby, and that the man was carrying a gun.The officers drove the woman to the supermarket, and Officer Kraft entered the store while Officer Scarring radioed for assistance. Officer Kraft quickly spotted respondent, who matched the description given by the woman, approaching a checkout counter. Apparently upon seeing the officer, respondent turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. When respondent turned the corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and upon regaining sight of respondent, ordered him to stop and put his hands over his head.Although more than three other officers had arrived on the scene by that time, Officer Kraft was the first to reach respondent. He frisked him and discovered that he was wearing a shoulder holster which was then empty. After handcuffing him, Officer Kraft asked him where the gun was. Respondent nodded in the direction of some empty cartons and responded, "the gun is over there." Officer Kraft thereafter retrieved a loaded .38-caliber revolver from one of the cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card. Respondent indicated that he would be willing to answer questions without an attorney present. Officer Kraft then asked respondent if he owned the gun and where he had purchased it. Respondent answered that he did own it and that he had purchased it in Miami, Fla.In the subsequent prosecution of respondent for criminal possession of a weapon, [Footnote 2] the judge excluded the statement, "the gun is over there," and the gun because the officer had not given respondent the warnings required by our decision in Miranda v. Arizona, 384 U. S. 436 (1966), before asking Page 467 U. S. 653 him where the gun was located. The judge excluded the other statements about respondent's ownership of the gun and the place of purchase, as evidence tainted by the prior Miranda violation. The Appellate Division of the Supreme Court of New York affirmed without opinion. 85 App.Div.2d 936, 44 N.Y.S.2d 84 (1981).The Court of Appeals granted leave to appeal, and affirmed by a 4-3 vote. 58 N.Y.2d 664, 444 N.E.2d 984 (1982). It concluded that respondent was in "custody" within the meaning of Miranda during all questioning, and rejected the State's argument that the exigencies of the situation justified Officer Kraft's failure to read respondent his Miranda rights until after he had located the gun. The court declined to recognize an exigency exception to the usual requirements of Miranda because it found no indication from Officer Kraft's testimony at the suppression hearing that his subjective motivation in asking the question was to protect his own safety or the safety of the public. 58 N.Y.2d at 666, 444 N.E.2d at 985. For the reasons which follow, we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. [Footnote 3] Page 467 U. S. 654The Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." In Miranda, this Court for the first time extended the Fifth Amendment privilege against compulsory self-incrimination to individuals subjected to custodial interrogation by the police. 384 U.S. at 384 U. S. 460-461, 384 U. S. 467. The Fifth Amendment itself does not prohibit all incriminating admissions;"[a]bsent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions."United States v. Washington, 431 U. S. 181, 431 U. S. 187 (1977) (emphasis added). The Miranda Court, however, presumed that interrogation in certain custodial circumstances [Footnote 4] is inherently coercive, and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. The prophylactic Miranda warnings therefore are"not themselves rights protected by the Constitution, but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected."Michigan v. Tucker, 417 U. S. 433, 417 U. S. 444 (1974); see Edwards v. Arizona, 451 U. S. 477, 451 U. S. 492 (1981) (POWELL, J., concurring). Requiring Miranda warnings before custodial interrogation provides "practical reinforcement" for the Fifth Amendment right. Michigan v. Tucker, supra, at 417 U. S. 444.In this case, we have before us no claim that respondent's statements were actually compelled by police conduct which overcame his will to resist. See Beckwith v. United States, 425 U. S. 341, 425 U. S. 347-348 (1976); Davis v. North Carolina, 384 U. S. 737 (1966). Thus, the only issue before us is whether Page 467 U. S. 655 Officer Kraft was justified in failing to make available to respondent the procedural safeguards associated with the privilege against compulsory self-incrimination since Miranda. [Footnote 5]The New York Court of Appeals was undoubtedly correct in deciding that the facts of this case come within the ambit of the Miranda decision as we have subsequently interpreted it. We agree that respondent was in police custody, because we have noted that"the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest,"California v. Beheler, 463 U. S. 1121, 463 U. S. 1125 (1983) (per curiam), quoting Oregon v. Mathiason, 429 U. S. 492, 429 U. S. 495 (1977) (per curiam). Here, Quarles was surrounded by at least four police officers, and was handcuffed when the questioning at issue took place. As the New York Court of Appeals observed, there was nothing to suggest that any of the officers were any longer concerned for their own physical safety. 58 N.Y.2d at 666, 444 N.E.2d at 985. The New York Court of Appeals' majority declined to express an opinion as to whether there might be an exception to the Miranda rule if the police had been acting to protect the public, because the lower courts in New York had made no factual determination that the police had acted with that motive. Ibid.We hold that, on these facts, there is a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, Page 467 U. S. 656 and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity, rather than adherence to a police manual, is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. [Footnote 6] Undoubtedly most police officers, if placed in Officer Kraft's position, would act out of a host of different, instinctive, and largely unverifiable motives -- their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect.Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. The Miranda decision was based in large part on this Court's view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation in the presumptively coercive environment of the station house. 384 U.S. at 384 U. S. 455-458. The dissenters warned that the requirement of Miranda warnings would have the effect of decreasing the number of suspects who respond to police questioning. Id. at 384 U. S. 504, 384 U. S. 516-517 (Harlan, J., joined by Stewart and WHITE, JJ., dissenting). The Miranda majority, however, apparently felt that, whatever the Page 467 U. S. 657 cost to society in terms of fewer convictions of guilty suspects, that cost would simply have to be borne in the interest of enlarged protection for the Fifth Amendment privilege.The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles' position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles, but to insure that further danger to the public did not result from the concealment of the gun in a public area.We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative Page 467 U. S. 658 evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them. [Footnote 7]In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that, to some degree, we lessen the desirable clarity of that rule. At least in part in order to preserve its clarity, we have over the years refused to sanction attempts to expand our Miranda holding. See, e.g., Minnesota v. Murphy, 465 U. S. 420 (1984) (refusal to extend Miranda requirements to interviews with probation officers); Fare v. Michael C., 442 U. S. 707 (1979) (refusal to equate request to see a probation officer with request to see a lawyer for Miranda purposes); Beckwith v. United States, 425 U. S. 341 (1976) (refusal to extend Miranda requirements to questioning in noncustodial circumstances). As we have in other contexts, we recognize here the importance of a workable rule"to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront."Dunaway v. New York, 442 U. S. 200, 442 U. S. 213-214 (1979). But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively Page 467 U. S. 659 between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.The facts of this case clearly demonstrate that distinction and an officer's ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety. [Footnote 8]We hold that the Court of Appeals in this case erred in excluding the statement, "the gun is over there," and the gun because of the officer's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, Page 467 U. S. 660 we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. [Footnote 9] We therefore reverse and remand for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtNew York v. Quarles, 467 U.S. 649 (1984)New York v. QuarlesNo. 82-1213Argued January 18, 1984Decided June 12, 1984467 U.S. 649SyllabusRespondent was charged in a New York state court with criminal possession of a weapon. The record showed that a woman approached two police officers who were on road patrol, told them that she had just been raped, described her assailant, and told them that the man had just entered a nearby supermarket and was carrying a gun. While one of the officers radioed for assistance, the other (Officer Kraft) entered the store and spotted respondent, who matched the description given by the woman. Respondent ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun, but lost sight of him for several seconds. Upon regaining sight of respondent, Officer Kraft ordered him to stop and put his hands over his head; frisked him and discovered that he was wearing an empty shoulder holster; and, after handcuffing him, asked him where the gun was. Respondent nodded toward some empty cartons and responded that "the gun is over there." Officer Kraft then retrieved the gun from one of the cartons, formally arrested respondent, and read him his rights under Miranda v. Arizona, 384 U. S. 436. Respondent indicated that he would answer questions without an attorney being present and admitted that he owned the gun and had purchased it in Florida. The trial court excluded respondent's initial statement and the gun because the respondent had not yet been given the Miranda warnings, and also excluded respondent's other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.Held: The Court of Appeals erred in affirming the exclusion of respondent's initial statement and the gun because of Officer Kraft's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, it also erred in affirming the exclusion of respondent's subsequent statements as illegal fruits of the Miranda violation. This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. Pp. 467 U. S. 653-660.(a) Although respondent was in police custody when he made his statements and the facts come within the ambit of Miranda, nevertheless, on these facts, there is a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted Page 467 U. S. 650 into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, so long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it. Pp. 467 U. S. 655-657.(b) Procedural safeguards that deter a suspect from responding, and increase the possibility of fewer convictions, were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege against compulsory self-incrimination. However, if Miranda warnings had deterred responses to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting respondent. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area. P. 467 U. S. 657.(c) The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. Pp. 467 U. S. 658-659.58 N.Y.2d 664, 444 N.E.2d 984, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 467 U. S. 660. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 467 U. S. 674. Page 467 U. S. 651

1990_89-1821

JUSTICE BLACKMUN delivered the opinion of the Court.This case concerns a claim of age discrimination said to be in violation of § 15 (the federal employees' component) of the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as added by the Fair Labor Standards Amendments of 1974, 88 Stat. 74, and amended, 29 U.S.C. § 633a.IPetitioner Charles Z. Stevens, III, is an employee of the United States Internal Revenue Service. In August, 1986, when he was 63 years of age, Stevens was accepted into the Service's Revenue Officer Training Program at Austin, Tex., and assumed probationary status as a civil service employee. On April 26, 1987, he was advised that his performance in the program was not satisfactory. He then requested a transfer out of the program and a demotion, rather than face separation from the Service. Believing that he had been the victim of age discrimination, Stevens, on May 21, wrote his Congressman for assistance. See App. 8. That inquiry proved to be nonproductive.In September, 1987, petitioner attempted to invoke his agency's administrative procedure for resolving age discrimination complaints through an initial meeting with an Equal Employment Opportunity Counselor. This, however, Page 500 U. S. 4 was long after the expiration of the 30-day period prescribed for such an application by 29 CFR §§ 1613.511, 1613.512, and 1613.214(a)(1)(i) (1990). On October 19, petitioner filed a formal administrative complaint of age discrimination with the Department of the Treasury. App. 11. At the end of that complaint was the following statement: "This is also my notice of intention to sue in U.S. Civil District Court if the matter is not satisfactorily resolved." Id. at 15. The complaint was rejected, it was said, because of the delay in seeking a meeting with the counselor and because there was no showing of good cause for not complying with the 30-day requirement. Id. at 16. This action was described by the Director of the Regional Complaints Center as "a final agency decision." Id. at 19. On petitioner's appeal to the EEOC Office of Review and Appeals, the rejection for untimeliness was affirmed on March 30, 1988. Id. at 20.On May 3, 1988, petitioner filed pro se his complaint against the Department of the Treasury and its Secretary in the United States District Court for the Western District of Texas. Id. at 2. At an ensuing hearing, petitioner was represented by counsel. The defense moved to dismiss the action on the ground that petitioner had failed to establish any basis for tolling the 30-day period. Id. at 22. The District Court granted the motion, and dismissed the case with prejudice. App. to Pet. for Cert. A-1. It noted: "[A]n employee who believes that he has been discriminated against because of age has two avenues of relief under the ADEA": he either "may proceed directly to federal court and initiate an action no later than 180 days from the unlawful action and notify the EEOC within 30 days prior to commencing suit," citing 29 U.S.C. § 633a(d), or he "may file an administrative complaint with the employing federal agency and appeal an adverse finding to the" EEOC, in which case he "may bring a federal civil action only after exhausting his administrative remedies," App. to Pet. for Cert. A-3, Page 500 U. S. 5 citing 29 U.S.C. § 633a(b). The court reasoned that the alternative administrative procedure, which petitioner had attempted, had not properly been invoked because of the untimeliness of Stevens' complaint and the absence of a satisfactory explanation for the delay. The court therefore concluded that it was "without jurisdiction" to apply the ADEA "to the circumstances of Stevens' demotion in April, 1987." App. to Pet. for Cert. A-3 to A-4.Petitioner appealed to the United States Court of Appeals for the Fifth Circuit. In an unpublished per curiam opinion, that court disagreed with the District Court's statement that the employee could go directly to federal court "no later than 180 days from the unlawful action." It said that Stevens had to file a notice of intent to sue within 180 days of the allegedly discriminatory action, but that he did not have to initiate his federal suit within that period. Id. at A-7. The court went on to say:"However, Stevens did not initiate the present action in federal court until May [3], 1988, therefore Stevens' notice to the EEOC, of October 19, 1987 was not effective."Ibid. The court concluded:"Although the district court did not state the applicable law correctly, ultimately the correct result was reached, since Stevens failed to meet the requirements set forth in 29 U.S.C. 633a(d)."Id. at A-8. The District Court's dismissal was affirmed. Judgt. order reported at 897 F.2d 526 (1990).We granted certiorari over the Government's opposition because of what appeared to us to be a clear misreading by the lower courts of the applicable and important federal statute. 498 U.S. 957 (1990).IIAs the District Court noted in its opinion, App. to Pet. for Cert. A-3, § 15 of the ADEA provides two alternative routes for pursuing a claim of age discrimination. An individual may invoke the EEOC's administrative process and then file a civil action in federal district court if he is not satisfied with his administrative remedies. See 29 U.S.C. § 633a(b) Page 500 U. S. 6 and (c). A federal employee complaining of age discrimination, however, does not have to seek relief from his employing agency or the EEOC at all. He can decide to present the merits of his claim to a federal court in the first instance. See 29 U.S.C. § 633a(d). Both routes to court are implicated in this case. We address the direct route first.Section 15(d) of the Act, 29 U.S.C. § 633a(d), reads:"When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred."(Emphasis added.) The District Court obviously misread this statute when it said that the federal employee"may proceed directly to federal court and initiate an action no later than 180 days from the unlawful action and notify the EEOC within 30 days prior to commencing suit."App. to Pet. for Cert. A-3 (emphasis added). The court thus imposed a requirement that the federal court action be instituted within the 180-day period and an additional requirement that the EEOC be notified within 30 days prior to the commencement of the suit. But the statute reads otherwise as to both requirements. It calls for a notice of not less than 30 days to the Commission of an intent to sue (not notification within 30 days), and it provides that the notice shall be filed with the Commission within 180 days of the alleged unlawful practice (not filed within 180 days of the notice). Clearly, petitioner Stevens met both requirements. The EEOC was notified on October 19, 1987, the 176th day after the alleged discriminatory action -- petitioner's transfer and demotion of April 27, 1987 -- had occurred. [Footnote 1] Page 500 U. S. 7 And suit was not filed until May 3, 1988, a date more than 30 days after the notice was given.The Court of Appeals corrected one of the District Court's two errors:"Contrary to what the district court stated, Stevens had to file a notice of intent to sue with the EEOC within 180 days of the alleged discriminatory action. Stevens did not have to initiate his federal action within 180 days of the alleged action, but merely give notice to the EEOC of his intention to initiate a civil action."Id. at A-7. But the Court of Appeals then added the sentence already noted:"However, Stevens did not initiate the present action in federal court until May 4, 1988, therefore Stevens' notice to the EEOC, of October 19, 1987 was not effective."This enigmatic sentence surely implies, even if it does not say so directly, that the court was not in disagreement with the District Court's second error that the federal litigation had to be commenced within 30 days of the notice, instead of after 30 days from the notice. We note, at this point, that the District Court's and Court of Appeals' error in their reading of the statute has also been replicated by two other courts. See Castro v. United States, 775 F.2d 399, 403 (CA1 1985); McKinney v. Dole, 246 U.S.App.D.C. 376, 387, 765 F.2d 1129, 1140 (1985). The applicable regulations are positive as to the absence of such a "within 30 days" requirement under the ADEA, in marked contrast with the situation concerning the assertion of a Title VII claim. See 29 CFR § 1613.514 (1990). The Government concedes all this, for it says that "the statute is clear." Brief for Respondents 29.There is no foundation that we can discern for any conclusion that the suit was not filed within the applicable period of limitations. The statute does not expressly impose any additional limitations period for a complaint of age discrimination. We therefore assume, as we have before, that Congress intended to impose an appropriate period borrowed either from a state statute or from an analogous federal one. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. Page 500 U. S. 8 143, 483 U. S. 146-148 (1987). In this case, we need not decide which limitations period is applicable to a civil action under 29 U.S.C. § 633a(c). Stevens filed his suit on May 3, 1988, only one year and six days after the allegedly discriminatory event of April 27, 1987. That, as the Government acknowledges, Brief for Respondents 30, "is well within whatever statute of limitations might apply to the action." [Footnote 2]IIIThe Solicitor General, however, submits that the petition for certiorari should be dismissed as having been improvidently granted. Brief for Respondents 31. He rests this submission on the argument that petitioner did not properly present the merits of the timeliness issue to the Court of Appeals, and that this Court should not address that question for the first time. Id. at 8-9, 11-15. He made the same argument in his opposition to the petition for certiorari. Brief in Opposition 5-7. We rejected that argument in granting certiorari, and we reject it again now, because the Court of Appeals, like the District Court before it, decided the substantive issue presented.The District Court heard the case on the merits. Tr. 83-176. The Court of Appeals, in its turn, specifically referred to Stevens' notice of intention to file a civil suit, App. to Pet. for Cert. A-7, and, as we have explained, answered the timeliness question incorrectly. We thus are satisfied that the issue is properly before us.IVAnswering the timeliness question in petitioner's favor, as we have, brings us to an issue involving the administrative Page 500 U. S. 9 route to federal court. Once petitioner had filed an EEOC complaint, was he required to exhaust his administrative remedies in order to file a civil action in district court? The Court of Appeals expressly stated its circuit rule on exhaustion just eight days after it issued the opinion below. In White v. Frank, 895 F.2d 243, 244 (CA5), cert. denied, 498 U.S. 890 (1990), the court said:"[A]n ADEA plaintiff who chooses to appeal the employer's determination to the Equal Employment Opportunity Commission . . . must await final action by that agency before filing an action in federal district court."The exhaustion issue has divided the Circuits. Compare, e.g., Langford v. U.S. Army Corps of Engineers, 839 F.2d 1192, 1194-1195 (CA6 1988), with Purtill v. Harris, 658 F.2d 134, 138 (CA3 1981), cert. denied, 462 U.S. 1131 (1983).Although the issue is an important one, it is here that we encounter procedural difficulty. The Government, in direct contradiction of its position before the Court of Appeals, now fully agrees with petitioner on the merits of the exhaustion issue. According to the Solicitor General, a federal employee who elects agency review of an age discrimination claim need not exhaust his administrative remedies before bringing a civil action. The Government has thus abandoned the position that it took before the Court of Appeals when, in its brief, there, it said:"If an employee files an administrative claim with his agency, the employee must properly exhaust his administrative remedies like employees alleging other types of discrimination. . . ."* * * *"It is well established that a federal employee must timely exhaust any administrative remedies available to him before he can bring suit. . . . Therefore, Judge Bunton properly dismissed Mr. Stevens' cause of action because Mr. Stevens did not meet the administrative requirements. "Page 500 U. S. 10Brief for Appellee[s] filed by the United States Attorney for the Western District of Texas in Fifth Circuit file No. 89-1432, pp. 6-7. The Government, of course, acknowledges this, Tr. of Oral Arg. 17, and concedes that it indeed "took a different position," id. at 22. It candidly says that "we have reconsidered our position." Id. at 33.It is all well and good for the Government to rethink its position. Its choice, however, has meant that, on the merits, there is no one before us who stands in a position adverse to petitioner. Neither is there anyone before us who defends the results reached in those decided cases where courts of appeals have found an exhaustion requirement when administrative relief is sought before a court action is instituted. See, e.g., McGinty v. United States Department of the Army, 900 F.2d 1114 (CA7 1990); Castro v. United States, supra; Purtill v. Harris, supra. Those cases stand in conflict with the Sixth Circuit's decision in Langford v. United States Corps of Engineers, supra.In each of these cited cases, the United States put forward the exhaustion requirement. We must assume, in view of the Solicitor General's concession here, that the Government no longer will defend its earlier litigation position.Under these circumstances we are disinclined to rule on the merits of the exhaustion issue. We feel that our only proper course is to reverse the judgment of the Court of Appeals and to remand the case for further proceedings. On remand, the defense presumably (and it is a strong presumption) will submit to the Court of Appeals its altered positions -- that there is no exhaustion issue at all in this case because petitioner did not institute his court action until after a final decision of the agency had been made -- and, if that submission is not accepted by the court, that the Government now has withdrawn from the stance it took before the Court of Appeals on the merits. In either event, petitioner Stevens finally should gain his day in court, and will not have all avenues to relief completely blocked. Page 500 U. S. 11Meanwhile, to be sure, the rulings in McGinty, Castro, and Purtill, and any other rulings to the same effect, will remain outstanding, and in conflict with Langford. There is little or nothing, by way of disagreement or agreement with those cases, that this Court should do in the present litigation. The cases may be respectively challenged or supported by some future litigant in a way that will lead to a definitive resolution of the existing conflict in authority. If this does not come about, then, because of the Government's change-of-mind and new position, any legal significance of the conflict may simply fade away with the passage of time.Reversed

U.S. Supreme CourtStevens v. Department of Treasury, 500 U.S. 1 (1991)Stevens v. Department of TreasuryNo. 89-1821Argued March 19, 1991Decided April 24, 1991500 U.S. 1SyllabusOn April 26, 1987, petitioner Stevens, who was in his 60's, was subjected to an adverse personnel action by his employer, the Internal Revenue Service. Believing that he had been the victim of age discrimination, he attempted to invoke his agency's administrative procedure for resolving such claims in September, 1987, long after the expiration of the applicable time period set forth in Equal Employment Opportunity Commission (EEOC) regulations. On October 19, he filed a formal administrative complaint of age discrimination with the Department of the Treasury, concluding with a notice of his intention to sue if the matter was not satisfactorily resolved. The complaint was rejected because of the untimeliness of his initial attempt to obtain relief, and the EEOC's Office of Review and Appeals affirmed. On May 3, 1988, Stevens filed a complaint against the Department and its Secretary in the District Court, which dismissed the case with prejudice, concluding that it was "without jurisdiction" to apply the Age Discrimination in Employment Act of 1967 (ADEA) in the circumstances. Noting that a federal employee has two alternative avenues of relief under the ADEA, the court reasoned (1) that Stevens had not satisfied the requirements for proceeding directly to federal court under 29 U.S.C. § 633a(d), which, the court declared, mandated that he "initiate an action no later than 180 days from the unlawful action and notify the EEOC within 30 days prior to commencing suit," and (2) that his attempted administrative procedure had not properly been invoked because of untimeliness, whereas, having chosen the Page 500 U. S. 2 administrative route under § 633a(b), he was required to exhaust his administrative remedies before bringing suit. The Court of Appeals declared that, under § 633a(d), Stevens had to file a notice of intent to sue within 180 days of the allegedly discriminatory action, but did not have to initiate his federal suit within that period. Nevertheless, the court affirmed the dismissal of his complaint on the ground that, since he had not initiated his suit until May 3, 1988, his October 19, 1987, notice to the EEOC was not effective.Held:1. Stevens' civil action was timely under § 633a. 500 U. S. 5-8.(a) Stevens clearly met the requirements of § 633a(d), which calls for a notice of "not less than" 30 days to the EEOC of an intent to sue (not notification within 30 days), and provides that the "notice shall be filed" within 180 days of the alleged unlawful practice (not filed within 180 days of the notice). Here, the EEOC -- which accepts a notice given to the employing agency as sufficient compliance with the statutory notice requirement -- was notified on October 19, 1987, the 176th day after the alleged discriminatory action of April 27, 1987. And suit was not filed until May 3, 1988, a date more than 30 days after the notice was given. Pp. 500 U. S. 5-7.(b) There is no discernible basis for concluding that the suit was not filed within the applicable limitations period. Since the statute does not expressly impose any additional limitations period for a complaint, it must be assumed that Congress intended to impose an appropriate period borrowed either from a state statute or from an analogous federal one. It need not be decided here which limitations period is applicable to § 633a(c) civil actions, since Stevens filed his suit only one year and six days after the allegedly discriminatory event. As the Government acknowledges, that is well within whatever statute of limitations might apply. Pp. 500 U. S. 7-8.(c) The timeliness issue is properly before this Court, since the District Court heard the case on the merits, and the Court of Appeals in its turn specifically referred to Stevens' notice of intention to file a civil suit and answered the timeliness question incorrectly. P. 500 U.S. 8.2. This Court will not address the question whether Stevens, having filed an administrative complaint, was required to exhaust his administrative remedies before filing a civil action, since the Government, in direct contradiction of its position before the Court of Appeals, now fully agrees with Stevens that exhaustion is not required. Pp. 500 U.S. 8-11.897 F.2d 526 (CA5 1990), reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, O'CONNOR, SCALIA, KENNEDY, and SOUTER, Page 500 U. S. 3 JJ., joined, and in all but Part IV of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part.

1974_73-1210

Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. CHIEF JUSTICE BURGER.This is an appeal from a judgment of a three-judge District Court, 28 U.S.C. § 1253, which held invalid an order of the Interstate Commerce Commission promulgating Page 420 U. S. 185 a car Service Order [Footnote 1] under § 1(15) of the Interstate Commerce Act, as amended, 41 Stat. 476, 49 U.S.C. § 1(15). [Footnote 2] Oregon Pacific Industries v. United States, 365 F. Supp. 609 (Ore.1973). Page 420 U. S. 186Lumber is often moved to market on a wholesalers' sale-in-transit schedule. Cars are sent to hold points, where, in time, reconsignment order are received for shipment to customers of wholesalers. The tariffs allow indefinite holding, subject to demurrage charges for detention in excess of 24 hours, but the Commission found that these demurrage charges never discouraged shippers from lengthy holding of cars. In 1973 there was, according to the Commission, a transportation "emergency" which required "immediate action to promote car service in the interest of the public and the commerce of the people." Accordingly, on May 8, 1973, the Commission, sua sponte, without notice and hearing, entered its Service Order No. 1134 which limited the hold time at reconsignment points to five days (120 hours), exclusive of Saturdays, Sundays, and holidays. If the lumber cars were held at reconsignment points longer than five working days, the reconsignment privilege would be lost, and the shippers would be subject to local or joint tariff rates from the point of origin to the hold point, and from the hold point to the ultimate destination.The District Court held that there were four categories of emergency action which the Commission could take under § 1(15):"(a) to suspend . . . rules, regulations, or practices then established with respect to car service. . . . "Page 420 U. S. 187"(b) to make . . . directions with respect to car service . . . during such emergency as . . . will best promote . . . service . . . [and provide compensation as between carriers].""(c) to require . . . common use of terminals, . . . and""(d) to give directions for preference or priority in transportation. . . ."The District Court held that the Commission's authority under (b), (c), or (d) would not support the order in this case, and that the order could be sustained, if at all, only under (a). It concluded that (a) was not adequate, since the challenged order did not "suspend" any rule or regulation "with respect to car service." It reasoned that the order "condones the practice of sales in transit" for an indefinite time, but requires shippers employing the practice to pay a higher rate to the carriers than the demurrage rate under the prior order. That was, in its view, a rate order having no place under § 1(15), which gives the Commission power to act sua sponte in an "emergency" in a narrow group of cases. 365 F. Supp. at 612.The District Court pointed out that § 1(10) defines "car service" as "the use . . . movement . . . and return of . . . cars . . . used in the transportation of property . . . by any carrier by railroad," and it emphasized that"'car service' connotes the use to which the vehicles of transportation are put [by a carrier]; not the transportation service rendered by means of them,"365 F. Supp. at 611; Peoria & P.U. R. Co. v. United States, 263 U. S. 528, 263 U. S. 533. We emphasized in United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742, 406 U. S. 743, that car service rules dealt with the management of "a single common pool" of cars "used by all roads," and that they pertain to railroad use Page 420 U. S. 188 of cars. Since "railroad use" involves shippers, we think the District Court read § 1(15) too narrowly.We noted in Allegheny-Ludlum that § 1(15) traces back to the Esch Car Service Act of 1917, 40 Stat 101. [Footnote 3] 406 U.S. at 406 U. S. 744. The use of freight cars as warehouses -- the practice which prompted the Commission to act in the present case -- was one of the evils at which the original Car Service Act was aimed.Mr. Esch, sponsor of the legislation, said: [Footnote 4]"Another cause of car shortage is the holding of cars on the part of shippers themselves, using the car as a species of warehouse, instead of promptly unloading it. I think that is quite a universal evil throughout the United States, but it is due in some measure to the lack of warehouse and elevator facilities at the terminals.""* * * *" "Mr. MADDEN. If the gentleman will yield to me, I would like to ask him one question. I would like to ask the gentleman if there is any provision in this bill to compel railroad companies to pay demurrage to the shippers in case they failed to furnish the cars within the time they were required for the shipment of the goods?""Mr. ESCH. The gentleman means reciprocal demurrage?""Mr. MADDEN. This gives the Interstate Commerce Commission the right to authorize them to charge certain demurrage of the shipper if he fails to unload the car. Ought not the shipper to have a claim against the railroad company in case they fail to furnish the cars? "Page 420 U. S. 189"Mr. ESCH. I have no doubt, under the proposed amendment, in case of emergency, the commission could make any rules or regulations that they saw fit that would promote the transit of freight, because the power is very broad, and necessarily so."And the Reports make clear that one aim of the Act was "to the end that the public may receive the best possible service in transportation." [Footnote 5] Car shortages, it was found, resulted in short supplies of basic foods in the markets, "with attendant high prices." [Footnote 6] The interests of shippers and consumers -- not the carriers alone -- were very much in the forefront.As we have noted, Peoria & P.U. R. Co., supra, emphasized that the car service authority extends to the "use" of cars, and not to a "transportation service," but there the issue was whether one carrier was bound to perform switching services for another carrier. The Court held that it was not; power over the "use" of cars, however, was left undisturbed. In this connection, it is obvious that a shipper by rail does not "rent" a vehicle, as do shippers by truck. The cars are all "used" under the management of carriers, who naturally receive directions or requests from shippers. The cars cannot be used efficiently to serve the needs of shippers and consumers if they are used not as carriers, but as warehouses.In Turner Lumber Co. v. Chicago, M. & St. P. R. Co., 271 U. S. 259, demurrage to prevent "undue detention" of cars "loaded with lumber held for reconsignment" was fixed by the Commission without notice. The Court, speaking through Mr. Justice Brandeis, upheld the charge, saying:"All demurrage charges have a double purpose. One is to secure compensation for the use of the car and of the track which it occupies. The other is to promote car efficiency Page 420 U. S. 190 by providing a deterrent against undue detention."Id. at 271 U. S. 262. In Iversen v. United States, 63 F. Supp. 1001, aff'd per curiam, 327 U.S. 767, the Commission entered a car Service Order limiting reconsignment privileges to a specific number of days and providing that cars held in excess of that time would be subject to the sum of the local rates from origin to reconsignment point to destination. [Footnote 7] It was held that the demurrage item was a "rule" respecting "car service" within the meaning of § 1(15). The holding in Iversen was implicit in the holding in Turner. [Footnote 8] The District Court suggested that the Service Order was invalid because its effect was to "fix" rates and charges during an emergency -- a power not covered by § 1(15). That precise point was raised in Iversen, 63 F. Supp. at 1006, and the ruling, which we affirmed, was contra. Suspending or changing demurrage charges Page 420 U. S. 191 may increase the transportation charges; but, as Turner makes clear, demurrage charges have a dual purpose, and it is enough if one of them is a deterrent against undue detention of cars. As we said in Turner, at times, the cause of "undue detention" of freight cars is that they are used"as a place of storage, either at destination or at reconsignment points, for a long period while seeking a market for the goods stored therein."271 U.S. at 271 U. S. 262. The substitution of tariff rates already fixed and on file for the old demurrage rate is not an unreasonable method of accelerating the movement of freight cars. That was the aim and purpose of the present Service Order, and it was promulgated in an "emergency" [Footnote 9] which the Commission, using its expertise, found to exist. We cannot say the order was unreasonable on the record before us. Insofar as appellees raise questions of unfairness, they are precluded by the opinions of Mr. Justice Holmes in Avent v. United States, 266 U. S. 127, and of Mr. Justice Brandeis in Turner Lumber Co. v. Chicago, M. & St. P. R. Co., supra, which disposed of due process questions under § 1(15). We therefore hold that the Commission had the power to promulgate Service Order No. 1134 summarily. [Footnote 10]Reversed

U.S. Supreme CourtICC v. Oregon Pacific Indus., Inc., 420 U.S. 184 (1975)ICC v. Oregon Pacific Industries, Inc.No. 73-1210Argued November 20, 1974Decided February 19, 1975420 U.S. 184SyllabusService Order No. 1134, promulgated by the Interstate Commerce Commission (ICC) without notice or hearing pursuant to its emergency powers under § 1(15) of the Interstate Commerce Act, which limited the holding time of lumber cars at reconsignment points to five working days and subjected the shipper holding the car at such points for more than that period to the sum of the rates from origin, to hold point, to destination, held within the ICC's power under § 1(15) to avoid undue detention of freight cars used as places of storage during an emergency freight car shortage that the ICC, exercising its expertise, found to exist. Pp. 420 U. S. 187-191.365 F. Supp. 609, reversed.DOUGLAS, J., wrote the opinion for a unanimous Court. POWELL, J., filed a concurring opinion, post, p. 420 U. S. 191.

1982_81-969

JUSTICE REHNQUIST delivered the opinion of the Court.The State of Washington's principal source of revenue is a sales and use tax imposed on the buyer or consumer in all retail sales and consumer uses of tangible personal property. [Footnote 1] Page 460 U. S. 538 In this case, the United States contends that one aspect of that tax statute -- its application to building construction -- is invalid under the Supremacy Clause of the United States Constitution. The statutory provisions are most easily understood in light of their history.Before 1941, building contractors were treated as consumers for sales tax purposes. All sales of tangible personal property, such as construction materials, to contractors were subject to the sales tax. The legal incidence of this tax was on the contractor; the tax was collected by suppliers who sold to contractors, and remitted by them to the State.In 1941, Washington changed the sales tax system it applied to contractors by defining the landowner who purchases construction work from the contractor, rather than the contractor, as the "consumer." The legal incidence of the tax was now on the landowner, who paid tax on the full price of the construction project. The net result was that contractors' labor costs and markups were added to the tax base, which had previously included only the cost of tangible personal property sold to contractors.The post-1941 tax system could not, however, be applied to construction for the Federal Government, because the Supremacy Clause prohibits States from taxing the United States directly. United States v. New Mexico, 455 U. S. 720 (1982). Thus, when the United States was the landowner, Washington did not collect any tax on the sale either of tangible personal property to the contractor or of the finished building to the Government.In 1975, the Washington Legislature acted to eliminate the complete tax exemption for construction purchased by the United States. [Footnote 2] It did so by reimposing the pre-1941 tax on Page 460 U. S. 539 contractors that work for the Federal Government ("federal contractors"). [Footnote 3] Thus, Washington now taxes the sale of nonfederal projects to the landowner, and taxes the sale of materials to federal contractors. The net result is that, for federal projects, the legal incidence of the tax falls on the Page 460 U. S. 540 contractor, rather than the landowner, and the tax is measured by a lesser amount than the tax on nonfederal projects, because the contractor's labor costs and markup are not included in the tax base.Shortly after the new statute was enacted, the United States sued the State in the District Court for the Western District of Washington, seeking a declaratory judgment and a permanent injunction against the assessment and collection of the sales tax from federal contractors, and an order requiring the refund of sales taxes already so collected, for which the United States had reimbursed its contractors. The District Court granted the United States' motion for partial summary judgment, holding that the statutes discriminate against federal contractors in violation of the Supremacy Clause. On appeal, the Court of Appeals for the Ninth Circuit affirmed. 654 F.2d 570 (1981). Washington appealed pursuant to 28 U.S.C. § 1254(2), and we noted probable jurisdiction. 456 U.S. 970 (1982).In recent years, this Court has examined in some detail the history of the Federal Government's constitutional immunity from state taxation. United States v. New Mexico, supra, at 455 U. S. 730-738; United States v. County of Fresno, 429 U. S. 452, 429 U. S. 457-464 (1977). There is no reason to repeat these discussions here; it suffices to restate our conclusions. In New Mexico, we explained that"immunity may not be conferred simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy. . . . Similarly, immunity cannot be conferred simply because the state tax falls on the earnings of a contractor providing services to the Government."455 U.S. at 455 U. S. 734. In Fresno, we stated the rule that,"[s]o long as the tax is not directly laid on the Federal Government, it is valid if nondiscriminatory . . . or until Congress declares otherwise."429 U.S. at 429 U. S. 460 (citing James v. Dravo Contracting Co., 302 U. S. 134, 302 U. S. 150, 302 U. S. 161 (1937)). Accord, Memphis Bank & Trust Co. v. Garner, 459 U. S. 392, 459 U. S. 397 (1983). Page 460 U. S. 541The United States' principal argument is that the tax is invalid because Washington has circumvented the Federal Government's tax immunity by identifying a federal activity for different tax treatment. Brief for United States 10, 21-31; Tr. of Oral Arg. 29-33, 40-41. Because Washington does not impose a sales tax on contractors who do not work for the Federal Government, the argument goes, it discriminates against the Federal Government and those with whom it deals.Washington does, however, impose a sales tax on all purchases from contractors who do not deal with the Federal Government. The tax is imposed on every construction transaction, and the tax rate is the same for everyone. The only deviation from equality between the Federal Government and federal contractors, on one hand, and every other taxpayer, on the other, is that the former are taxed on a smaller proportion of the value of the project than the latter. [Footnote 4] Thus the Federal Government and federal contractors Page 460 U. S. 542 are both better off than other taxpayers, because they pay less tax than anyone else in the State. This hardly seems, on its face, to be the mistreatment of the Federal Government against which the Supremacy Clause protects.The United States relies upon Phillips Chemical Co. v. Dumas Independent School District, 361 U. S. 376 (1960), in which Texas taxed the lessees of property owned by the State on the value of their leasehold interest, but taxed some lessees of property owned by the United States on the full value of the premises. However, the Court there rejected the United States' argument that the tax was invalid simply because it treats those who deal with the Federal Government differently than it treats others. [Footnote 5] Id. at 361 U. S. 382. We plainly stated that a determination whether a tax is discriminatory "requires an examination of the whole tax structure of the state.'" Id. at 361 U. S. 383 (quoting Tradesmens National Bank v. Oklahoma Tax Comm'n, 309 U. S. 560, 309 U. S. 568 (1940)). [Footnote 6] The Texas tax was invalid only because it imposed "a heavier tax burden on lessees of federal property than is imposed on lessees of" state property. [Footnote 7] 361 U.S. at 361 U. S. 383, 387. See Memphis Bank & Trust Co. v. Garner, supra, at 459 U. S. 398. Page 460 U. S. 543In United States v. County of Fresno, supra, the county imposed a tax on the owners of real property. Of course, property owned by the United States was exempt from the tax. Rather than forgo all revenue from federally owned land, the county taxed private lessees' interests in real property rented from the Federal Government and other tax-exempt owners. [Footnote 8] It did not tax the interests of any lessees of nonexempt property. We rejected the United States' contention that the tax system discriminated against lessees of federal property. Because the economic burden of a tax imposed on the owner of nonexempt property is ordinarily passed on to the lessee, we explained that those who leased property from the Federal Government were no worse off than their counterparts in the private sector. 429 U.S. at 429 U. S. 464-465.Similarly, in United States v. City of Detroit, 355 U. S. 466, 355 U. S. 473-474 (1958), Michigan taxed private property owners, but not the United States or other exempt owners. Instead, the State taxed nonexempt parties' use of exempt property. It did not tax the use of nonexempt property. We upheld the tax because the State may "equate the tax burden imposed on private enterprise using exempt property with that carried by similar businesses using taxed property." [Footnote 9] Id. at 355 U. S. 473. We explained that"[t]hose using exempt Page 460 U. S. 544 property are required to pay no greater tax than that placed on private owners or passed on by them to their business lessees."Id. at 355 U. S. 473-474.In this case, federal contractors are required to pay no greater tax than that placed on private buyers of construction work or passed on by them to their contractors. The Court of Appeals sought to distinguish Detroit on the ground that the tax burden in this case is not necessarily shifted to the nonfederal contractors. 664 F.2d at 576. But there was no proof in either Detroit or Fresno that private owners would necessarily pass the tax on to their lessees; the opportunity for the parties to allocate the economic burden of the tax among themselves was sufficient. No more should be required here.The important consideration, therefore, is not whether the State differentiates in determining what entity shall bear the legal incidence of the tax, but whether the tax is discriminatory with regard to the economic burdens that result. The only difference between this case and Fresno and Detroit is that the taxpayer here is a vendor of services to the United States, rather than one who receives an economic benefit from the Federal Government. To rest upon this distinction would be to elevate form over substance. The entire trend of our decisions since James v. Dravo Contracting Co., 302 U. S. 134 (1937), has been to avoid "wooden formalism." United States v. New Mexico, 455 U.S. at 455 U. S. 737. See Fresno, 429 U.S. at 429 U. S. 460-461, and n. 9. See generally Comment, Federal Immunity from State Taxation, 45 U.Chi.L.Rev. 695, 700-702 (1978). The State does not discriminate against the Federal Government and those with Page 460 U. S. 545 whom it deals unless it treats someone else better than it treats them. [Footnote 10]The Court of Appeals thought that the Washington statutes do not provide a "political check against abuse of the taxing power," Fresno, supra, at 429 U. S. 463, because "there is no broad state constituency taxed as are the prime contractors who deal with the federal government." 654 F.2d at 577. A "political check" is provided when a state tax falls on a significant group of state citizens who can be counted upon to use their votes to keep the State from raising the tax excessively, and thus placing an unfair burden on the Federal Government. It has been thought necessary because the United States does not have a direct voice in the state legislatures. See generally Fresno, supra, at 458-459, and n. 6.The Court of Appeals focused only on the taxes levied directly on contractors, and not on "the whole tax structure of the state.'" Phillips, 361 U.S. at 361 U. S. 383 (quoting Tradesmens, 309 U.S. at 309 U. S. 568). The tax on federal contractors is part of the same structure, and imposed at the same rate, as the tax on the transactions of private landowners and contractors. Indeed, the tax on contractors is part of a single sales tax scheme that is imposed at the same rate on every retail transaction in Washington; virtually every citizen is affected Page 460 U. S. 546 by the tax in the same way. As long as the tax imposed on those who deal with the Federal Government is an integral part of a tax system that applies to the entire State, there is little chance that the State will take advantage of the Federal Government by increasing the tax. [Footnote 11]In short, Washington has not singled out contractors who work for the United States for discriminatory treatment. It has merely accommodated for the fact that it may not impose a tax directly on the United States as the project owner. This the State may do without running afoul of the Supremacy Clause. As the Court stated in United States v. New Mexico, supra, at 455 U. S. 737-738:"If the immunity of federal contractors is to be expanded beyond its narrow constitutional limits, it is Congress that must take responsibility for the decision, by so expressly providing as respects contracts in a particular form, or contracts under particular programs. James v. Dravo Contracting Co., 302 U.S. at 302 U. S. 161; Carson v. Roane-Anderson Co., 342 U. S. 232, 342 U. S. 234 (1952). And this allocation of responsibility is wholly appropriate, for the political process is 'uniquely adapted to accommodating the competing demands' in this area. Massachusetts v. United States, 435 U. S. 444, 435 U. S. 456 (1978). . . . But absent congressional action, we have emphasized that the States' power to tax can be denied only under 'the clearest constitutional mandate.' Michelin Tire Corp. v. Wages, 423 U. S. 276, 423 U. S. 293 (1976). [Footnote 12]"The judgment of the Court of Appeals isReversed

U.S. Supreme CourtWashington v. United States, 460 U.S. 536 (1983)Washington v. United StatesNo. 81-969Argued January 10, 1983Decided March 29, 1983460 U.S. 536SyllabusWashington state statutes impose a sales tax on federal contractors with respect to the sale of materials to such contractors for work on federal projects, but with regard to nonfederal construction projects, the tax is imposed on the landowner, who pays tax on the full price of the project, including the contractor's labor costs and markup, as well as the cost of tangible personal property sold to the contractor. The United States filed suit in Federal District Court, seeking declaratory and injunctive relief and an order requiring a refund of sales taxes for which the Federal Government had reimbursed its contractors. The District Court granted partial summary judgment for the United States, holding that the statutes discriminate against federal contractors in violation of the Supremacy Clause of the Federal Constitution, and the Court of Appeals affirmed.Held: The Washington statutes are not invalid under the Supremacy Clause. Pp. 460 U. S. 540-546.(a) The Federal Government's constitutional immunity from state taxation may not be conferred on a third party simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy. Nor can immunity be conferred simply because the state tax falls on the earnings of a contractor providing services to the Government. United States v. New Mexico, 455 U. S. 720, 455 U. S. 734. "So long as the tax is not directly laid on the Federal Government, it is valid if nondiscriminatory . . . or until Congress declares otherwise." United States v. County of Fresno, 429 U. S. 452, 429 U. S. 460. P. 460 U. S. 540.(b) Washington's tax is not invalid on the asserted ground that the State has circumvented the Federal Government's tax immunity by identifying a federal activity for different tax treatment. Washington imposes a sales tax of the same rate on all purchases from nonfederal contractors. The only deviation from equality between the Federal Government and federal contractors on one hand, and every other taxpayer on the other hand, is that the former are taxed on a smaller proportion of the value of the project than the latter. Thus the Federal Government and its contractors are better off than other taxpayers, which is not the mistreatment of the Federal Government against which the Supremacy Clause Page 460 U. S. 537 protects. A tax is not invalid simply because it treats those who deal with the Federal Government differently than it treats others. Phillips Chemical Co. v. Dumas Independent School District, 361 U. S. 376, distinguished. Cf. United States v. County of Fresno, supra; United States v. City of Detroit, 355 U. S. 466. Pp. 460 U. S. 541-544.(c) The important consideration is not whether the State differentiates in determining what entity shall bear the legal incidence of the tax, but whether the tax is discriminatory with regard to the economic burdens that result. The State does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them. Here, Washington has not singled out contractors who work for the United States for discriminatory treatment. It has merely accommodated for the fact that it may not impose a tax directly on the United States as the project owner. Pp. 460 U. S. 544-546.654 F.2d 570, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, POWELL, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and STEVENS, JJ., joined, post, p. 460 U. S. 547.

1996_95-938

mitted for permanent residence. In 1985, while respondent's naturalization application was still pending, respondent and his wife obtained another divorce in order to permit her to obtain a visa under her true name (as the relative of a daughter who had obtained United States citizenship).The Immigration and Naturalization Service (INS) ultimately learned of respondent's unlawful entry, and in 1992 issued an order to show cause why he should not be deported. The INS maintained that respondent was deportable under 8 U. S. C. § 1251(a)(1)(A), because he was excludable from the United States at the time of entry under the former 8 U. S. C. §§ 1182(a)(14), (19), and (20) (1988 ed.). Respondent conceded that he was deportable and filed a request for a waiver of deportation under § 1251(a)(1)(H). The Board of Immigration Appeals affirmed the Immigration Judge's denial of this request. The Board concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. Although the Board did not consider respondent's fraudulent entry in 1978 as itself an adverse factor, it did consider, among other things, respondent's "acts of immigration fraud before and after his 1978 entry into the United States," App. to Pet. for Cert. lOa, including his first sham divorce to facilitate his wife's unlawful entry, his 1982 application for naturalization, and his second sham divorce to assist his wife in obtaining an immigrant visa under her real name.The Court of Appeals for the Ninth Circuit granted respondent's petition for review, vacated the Board's decision, and remanded the case for further proceedings. Yang v. INS, 58 F.3d 452 (1995). The Ninth Circuit held that the Board abused its discretion by considering as an adverse factor respondent's participation in his wife's fraudulent entry, because those acts were "inextricably intertwined with Mr. Yang's own efforts to secure entry into the country and must be considered part of the initial fraud." Id., at 453. The Ninth Circuit also concluded that the Board improperly29considered respondent's fraudulent application for naturalization as an adverse factor because that application "must be considered an extension of the initial fraud." Ibid. We granted certiorari. 516 U. S. 1110 (1996).1Section 1251(a)(1)(H) provides, in relevant part, as follows:"The provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens described in section 1182(a)(6)(C)(i) of this title [who have obtained a visa, documentation, entry or INA benefit by fraud or misrepresentation] ... may, in the discretion of the Attorney General, be waived for any alien ... who-"(i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and"(ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title [relating to possession of valid labor certifications, immigrant visas and entry documents] which were a direct result of that fraud or misrepresentation." 21 Our jurisdiction over this matter is not in question. See 5 U. S. C. § 702. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRA), Div. C., Department of Defense Appropriations Act, 1997, Pub. L. 104-208, 110 Stat. 3009, provides that "[n]otwithstanding any other provision of law, no court shall have jurisdiction to review ... any ... decision or action of the Attorney General the authority for which is specified under [Title 8 U. S. C.] to be in the discretion of the Attorney General .... " IIRA § 306(a). That provision does not take effect, however, until April 1, 1997. See IIRA §§ 306(c)(1), 309(a) (as amended by Pub. L. 104302, § 2, 110 Stat. 3656).2 The last clause of the quoted provision is less than artfully drawn, since the phrase "that fraud or misrepresentation" has no apparent antecedent. The antecedent was unmistakable in the prior version of the provision,30The meaning of this language is clear. While it establishes certain prerequisites to eligibility for a waiver of deportation, it imposes no limitations on the factors that the Attorney General (or her delegate, the INS, see 8 CFR § 2.1 (1996)) may consider in determining who, among the class of eligible aliens, should be granted relief. We have described the Attorney General's suspension of deportation under a related and similarly phrased provision of the INA as "'an act of grace' " which is accorded pursuant to her "unfettered discretion," Jay v. Boyd, 351 U. S. 345, 354 (1956) (quoting Escoe v. Zerbst, 295 U. S. 490, 492 (1935)), and have quoted approvingly Judge Learned Hand's likening of that provision to " 'a judge's power to suspend the execution of a sentence, or the President's to pardon a convict,'" 351 U. S., at 354, n. 16 (quoting United States ex rel. Kaloudis v. Shaughnessy, 180Respondent contends, however, that the portion of § 1251(a)(1)(H)(ii) requiring the alien to be "otherwise admissible"-that is, not excludable on some ground other than the entry fraud-precludes the Attorney General from considering the alien's fraudulent entry at all. The text will not bear such a reading. Unlike the prior version of the waiver-of-deportation statute at issue in INS v. Errico, 385 U. S. 214 (1966), under which the Attorney General had no discretion to deny a waiver if the statutory requirements were met, satisfaction of the requirements under § 1251(a)(1)(H), includ-which, in its prologue, authorized waiver of deportation "on the ground that [the aliens] were excludable at the time of entry as aliens who have sought to procure or have procured visas or other documentation, or entry into the United States, by fraud or misrepresentation." 8 U. S. C. § 1251(f) (1988 ed.). In the prologue of the current provision, that explicit (but lengthy) reference to fraud or misrepresentation has been replaced by citation of § 1182(a)(6)(C)(i), which uses almost the same language to define a class of excludable aliens. We think it if not obvious, then at least inevitable, that the phrase "that fraud or misrepresentation" refers to the fraud or misrepresentation for which waiver is sought, alluded to, through citation of § 1182(a)(6)(C)(i), in the prologue.31ing the requirement that the alien have been "otherwise admissible," establishes only the alien's eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace. It could be argued that if the Attorney General determined that any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute. But that is a far cry from respondent's argument that all entry fraud must be excused, which is untenable.Respondent asserts (and the United States acknowledges) that it is the settled policy of the INS to disregard entry fraud or misrepresentation, no matter how egregious, in making the waiver determination. See Delmundo v. INS, 43 F.3d 436, 440 (CA9 1994). This is such a generous disposition that it may suggest a belief on the part of the agency that the statute requires it; and such a belief is also suggested by the INS's frequent concessions in litigation that the underlying fraud for which the alien is deportable "should not be considered as an adverse factor in the balancing equation," Liwanag v. INS, 872 F.2d 685, 687 (CA5 1989); see also Braun v. INS, 992 F.2d 1016, 1020 (CA9 1993); Start v. INS, 803 F.2d 539, 542 (CA9 1986), withdrawn, 862 F.2d 787 (1988). (Such concessions were facilitated, no doubt, by the Ninth Circuit's frequent intimations that the statute forbade consideration of the initial fraud. See Hernandez-Robledo v. INS, 777 F.2d 536, 541 (1985); see also Braun, supra, at 1020; Delmundo, supra, at 441.) Before us, however, the United States disclaims such a position-and even if that were the agency's view we could not permit it to overcome the unmistakable text of the law. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 229-230 (1994). But that does not render the32INS's practice irrelevant. Though the agency's discretion is unfettered at the outset, if it announces and follows-by rule or by settled course of adjudication-a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as "arbitrary, capricious, [or] an abuse of discretion" within the meaning of the Administrative Procedure Act, 5 U. S. C. § 706(2)(A). The INS has not, however, disregarded its general policy here; it has merely taken a narrow view of what constitutes "entry fraud" under that policy, excluding events removed in time and circumstance from respondent's entry: his preentry and postentry sham divorces, and the fraud in his 1982 application for naturalization. The "entry fraud" exception being, under the current statute, a rule of the INS's own invention, the INS is entitled, within reason, to define that exception as it pleases. The Ninth Circuit held that the acts of fraud counted against respondent can be described as "inextricably intertwined" with, or an "extension" of, the fraudulent entry itself because they were essential to its ultimate success or concealment. Perhaps so, but it is up to the Attorney General whether she will adopt an "inextricably intertwined" or "essential extension" augmentation of her "entry fraud" exception. It is assuredly rational, and therefore lawful, for her to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation.The judgment of the Court of Appeals for the Ninth Circuit is reversed.It is so ordered

OCTOBER TERM, 1996SyllabusIMMIGRATION AND NATURALIZATION SERVICE v.YUEH-SHAIO YANGCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 95-938. Argued October 15, 1996-Decided November 13,1996Respondent and his wife, former Taiwan residents, executed elaborate fraudulent schemes to gain entry to the United States and, later, to obtain citizenship for respondent. While respondent's naturalization application was pending, the Immigration and Naturalization Service (INS) learned of his unlawful entry and issued an order to show cause why he should not be deported as excludable at the time of entry. He conceded that he was deportable and filed a request for a waiver of deportation under 8 U. S. C. § 1251(a)(I)(H). In affirming the Immigration Judge's denial of this request, the Board of Immigration Appeals concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. In vacating and remanding for further proceedings, the Ninth Circuit held that the Board abused its discretion by considering as adverse factors, first, respondent's participation in his wife's fraudulent entry and, second, his fraudulent naturalization application. The court reasoned that his acts in the former regard were "inextricably intertwined" with his own efforts to secure entry and must be considered part of the initial fraud, while his application must be considered an "extension" of that initial fraud.Held: In deciding whether to grant a waiver under § 1251(a)(I)(H), the Attorney General (or her delegate, the INS) may take into account acts of fraud committed by the alien in connection with his entry into the United States. The relevant statutory language establishes certain prerequisites to eligibility for a waiver, but imposes no limitations on the factors that the INS may consider in determining who, among the class of eligible aliens, should be granted relief. Cf., e. g., Jay v. Boyd, 351 U. S. 345, 354. Although it is the INS's settled policy to disregard entry fraud, no matter how egregious, in making the waiver determination, that policy is the INS's own invention and is not required by the statutory text. Moreover, the INS has not abused its discretion by arbitrarily disregarding its policy here; it has merely taken a narrow view of what constitutes "entry fraud." It is assuredly rational, and therefore lawful, to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation. Pp. 29-32.58 F.3d 452, reversed.27SCALIA, J., delivered the opinion for a unanimous Court.Beth S. Brinkmann argued the cause for petitioner. With her on the briefs were Solicitor General Days, Acting Solicitor General Dellinger, Assistant Attorney General Hunger, and Deputy Solicitor General Kneedler.Howard Hom argued the cause for respondent. With him on the brief were Robert L. Reeves, Franklin W Nelson, and Bill Ong Hing.*JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether the Attorney General, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act (INA), 95 Stat. 1616, as amended, 8 U. S. C. § 1251(a)(1)(H), may take into account acts of fraud committed by the alien in connection with his entry into the United States.Respondent Yueh-Shaio Yang and his wife, Hai-Hsia Yang, were born and married in the People's Republic of China, and subsequently moved to Taiwan. In order to gain entry to the United States, they executed the following scheme:After divorcing respondent in Taiwan, Hai-Hsia traveled to the United States in 1978 and, using $60,000 provided by respondent, obtained a fraudulent birth certificate and passport in the name of Mary Wong, a United States citizen. Respondent then remarried Hai-Hsia in Taiwan under her false identity and fraudulently obtained an immigrant visa to enter the United States as the spouse of a United States citizen. In 1982, four years after his fraudulent entry, respondent submitted an application for naturalization, which fraudulently stated that his wife "Mary" was a United States citizen by birth and that respondent had been lawfully ad-* Daniel J. Popeo and David A. Price filed a brief for the Washington Legal Foundation as amicus curiae urging reversal.Sandra E. Kupelian filed a brief for the American Immigration Lawyers Association et al. as amici curiae urging affirmance.28Full Text of Opinion

1957_99

MR. JUSTICE WHITTAKER delivered the opinion of the Court.Petitioner, a 19-year-old Negro, was convicted by a jury in Jefferson County, Arkansas, of first degree murder, and sentenced to death by electrocution. On appeal to the Supreme Court of Arkansas, he pressed two main contentions: (1) that the trial court erred in overruling his motion to suppress, and in receiving in evidence over his objection a coerced and false confession, and that the error takes and deprives him of his life without due process of law in violation of the Fourteenth Amendment of the Constitution, and (2) that the trial court erred in overruling his motion to quash the panel of petit jurors upon the ground that Negroes were systematically excluded, or their number limited, in the selection of the jury panel, and that the error deprives him of the equal protection of the laws and of due process of law, in violation of the Fourteenth Amendment of the Constitution. The court held that these contentions were without merit, and affirmed the judgment. 226 Ark. 910, 295 S.W.2d 312. He then applied to us for a writ of certiorari, based on these contentions, which we granted because the constitutional questions presented appeared to be substantial. 353 U.S. 929.We will first consider petitioner's contention that the confession was coerced, and that its admission in evidence over his objection denied him due process of law in violation of the Fourteenth Amendment.The use in a state criminal trial of a defendant's confession obtained by coercion -- whether physical or mental -- is forbidden by the Fourteenth Amendment. [Footnote 1] Enforcement Page 356 U. S. 562 of the criminal laws of the States rests principally with the state courts, and generally their findings of fact, fairly made upon substantial and conflicting testimony as to the circumstances producing the contested confession -- as distinguished from inadequately supported findings or conclusions drawn from uncontroverted happenings -- are not this Court's concern; [Footnote 2] yet where the claim is that the prisoner's confession is the product of coercion, we are bound to make our own examination of the record to determine whether the claim is meritorious. "The performance of this duty cannot be foreclosed by the finding of a court, or the verdict of a jury, or both." [Footnote 3] The question for our decision, then, is whether the confession was coerced. That question can be answered only by reviewing the circumstances under which the confession was made. We therefore proceed to examine those circumstances as shown by this record.Near 6:30 p.m. on October 4, 1955, J. M. Robertson, an elderly retail lumber dealer in the City of Pine Bluff, Arkansas, was found in his office dead or dying from crushing blows inflicted upon his head. More than $450 was missing from the cash drawer. Petitioner, a 19-year-old Negro with a fifth-grade education, [Footnote 4] who had been employed by Robertson for several weeks, was suspected Page 356 U. S. 563 of the crime. He was interrogated that night at his home by the police, but they did not then arrest him. Near 11 a.m. the next day, October 5, he was arrested without a warrant and placed in a cell on the first floor of the city jail. Arkansas statutes provide that an arrest may be made without a warrant when an officer "has reasonable grounds for believing that the person arrested has committed a felony," [Footnote 5] and that, when an arrest is made without a warrant, the person arrested "shall be forthwith carried before the most convenient magistrate of the county in which the arrest is made," [Footnote 6] and when the person arrested is brought before such magistrate, it is the latter's duty to "state the charge [against the accused and to] inquire . . . whether he desires the aid of counsel [and to allow him] a reasonable opportunity" to obtain counsel. [Footnote 7] It is admitted that petitioner, though arrested without a warrant, was never taken before a magistrate, and that the statutes mentioned were not complied with.Petitioner was held incommunicado without any charge against him from the time of his arrest at 11 a.m. on October 5 until after his confession on the afternoon of October 7, without counsel, advisor or friend being permitted to see him. Members of his family who sought to see him were turned away, because the police did not "make it a practice of letting anyone talk to [prisoners] while they are being questioned." Two of petitioner's brothers and three of his nephews were, to his knowledge, brought by the police to the city jail and questioned during the evening of petitioner's arrest, and one of his brothers was arrested and held in jail overnight. Petitioner asked permission to make a telephone call, but his request was denied. Page 356 U. S. 564Petitioner was not given lunch after being lodged in the city jail on October 5, and missed the evening meal on that day because he was then being questioned in the office of the chief of police. Near 6:30 the next morning, October 6, he was taken by the police, without breakfast, and also without shoes or socks, [Footnote 8] on a trip to Little Rock, a distance of about 45 miles, for further questioning and a lie detector test, arriving there about 7:30 a.m. He was not given breakfast in that city, but was turned over to the state police, who gave him a lie detector test and questioned him for an extended time not shown in the record. At about 1 p.m. that day, he was given shoes and also two sandwiches -- the first food he had received in more than 25 hours. He was returned to the city jail in Pine Bluff at about 6:30 that evening -- too late for the evening meal -- and placed in a cell on the second floor. The next morning, October 7, he was given breakfast -- which, except for the two sandwiches he had been given at Little Rock at 1 p.m. the day before, was the only food he had received in more than 40 hours.We come now to an even more vital matter. Petitioner testified, [Footnote 9] concerning the conduct that immediately induced his confession, as follows:"I was locked up upstairs and Chief Norman Young came up [about 1 p.m. on October 7] and told me that I had not told him all of the story -- he said that there was 30 or 40 people outside that wanted to get me, and he said if I would come in and tell him the truth that he would probably keep them from coming in."When again asked what the chief of police had said to him on that occasion, petitioner testified:"Chief Norman Young said thirty or forty people Page 356 U. S. 565 were outside wanting to get in to me and he asked me if I wanted to make a confession he would try to keep them out."The chief of police, on cross-examination, admitted that he had made the substance of that statement to petitioner, [Footnote 10] and had told him that he would be permitted to confess to the chief "in private." In this setting, petitioner immediately agreed to make a statement to the chief. The chief then took petitioner to his private office, and almost immediately after arriving at that place there was a knock on the door. The chief opened the door and stepped outside, leaving the door ajar, and petitioner heard him say "He is fixing to confess now,' and he would like to have me alone." Petitioner did not know what persons or how many were outside the door. The chief reentered his office and began questioning petitioner, who orally confessed that he had committed the crime. Thereupon, Sergeant Halsell of the State Police and Sheriff Norton were admitted to the room, and, under questioning by Sergeant Halsell, petitioner gave more details concerning the crime. Soon afterward, a court reporter was called in and several businessmen were also admitted to the Page 356 U. S. 566 room. Sergeant Halsell then requestioned petitioner, and the questions and answers were taken by the reporter in shorthand. After being transcribed by the reporter, the typed transcription was returned to the room about 3 p.m., and was read and signed to petitioner and witnessed by the officers and businessmen referred to. Thus, the "confession" was obtained.At the beginning of the trial, petitioner's counsel moved to suppress the confession because obtained by coercion culminating in a threat of mob violence. Following Arkansas procedure (McClellan v. State, 203 Ark. 386, 156 S.W.2d 800), a hearing upon that motion was held before the trial judge in chambers, at which the facts above recited were shown without dispute. In addition, petitioner testified that the confession did not contain the truth, and when asked why he made it, he answered:"Well, as a matter of fact, lawyer Branton, I was more than afraid because Chief Norman Young had already told me that there was 30 or 40 people outside and the way he stated it, if I hadn't, if I didn't make the confession, that he would let them in, from the conversation, from the way that he told me."The trial judge overruled the motion to suppress the confession. The same evidence was then repeated before the jury, and the confession was admitted in evidence over petitioner's objection. The court instructed the jury to disregard the confession if they found it was not voluntarily made. The jury returned a general verdict finding petitioner guilty of first degree murder as charged, and assessed the penalty of death by electrocution. Judgment accordingly was entered on the verdict.That petitioner was not physically tortured affords no answer to the question whether the confession was coerced, for"[t]here is torture of mind as well as body; the will is as much affected by fear as by force. . . . A Page 356 U. S. 567 confession by which life becomes forfeit must be the expression of free choice."Watts v. Indiana, 338 U. S. 49, 338 U. S. 52-53. [Footnote 11] The undisputed evidence in this case shows that petitioner, a mentally dull 19-year-old youth, (1) was arrested without a warrant, (2) was denied a hearing before a magistrate at which he would have been advised of his right to remain silent and of his right to counsel, as required by Arkansas statutes, (3) was not advised of his right to remain silent or of his right to counsel, (4) was held incommunicado for three days, without counsel, advisor or friend, and though members of his family tried to see him they were turned away, and he was refused permission to make even one telephone call, (5) was denied food for long periods, and, finally, (6) was told by the chief of police "that there would be 30 or 40 people there in a few minutes that wanted to get him," which statement created such fear in petitioner as immediately produced the "confession." It seems obvious from the totality of this course of conduct, [Footnote 12] and particularly the culminating threat of mob violence, that the confession was coerced, and did not constitute an "expression of free choice," [Footnote 13] and that its use before the jury, over petitioner's objection, deprived him of "that fundamental fairness essential to the very concept of justice," [Footnote 14] and, hence, denied him due process of law, guaranteed by the Fourteenth Amendment.Respondent suggests that, apart from the confession, there was adequate evidence before the jury to sustain the Page 356 U. S. 568 verdict. But where, as here, a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And, in these circumstances, this Court has uniformly held that, even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment. [Footnote 15]The admitted facts, set out above, make applicable the conclusion reached in Chambers v. Florida, 309 U. S. 227, 309 U. S. 241:"Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death."The judgment must be reversed because of the admission in evidence of the coerced confession. It is therefore unnecessary at this time for us to discuss or decide the other question presented by petitioner -- whether the overruling of his motion to quash the panel of petit jurors upon the ground that Negroes were systematically excluded, or their number limited, in the selection of the jury panel denied him the equal protection of the laws under the Page 356 U. S. 569 Fourteenth Amendment -- for we will not assume that the same issue will be present upon a new trial.The judgment is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtPayne v. Arkansas, 356 U.S. 560 (1958)Payne v. ArkansasNo. 99Argued March 3, 1958Decided May 19, 1958356 U.S. 560SyllabusPetitioner, a mentally dull 19-year-old Negro with a fifth-grade education, was convicted in a state court of first degree murder and sentenced to death. At his trial, there was admitted in evidence, over his objection, a confession shown by undisputed evidence to have been obtained in the following circumstances: he was arrested without a warrant, and never taken before a magistrate or advised of his right to remain silent or to have counsel, as required by state law. After being held incommunicado for three days without counsel, advisor, or friend, and with very little food, he confessed after being told by the Chief of Police that "there would be 30 or 40 people there in a few minutes that wanted to get him," and that, if he would tell the truth, the Chief of Police probably would keep them from coming in.Held: Petitioner was denied due process of law contrary to the Fourteenth Amendment; the judgment of the State Supreme Court affirming the conviction is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Pp. 356 U. S. 561-569.(a) It is obvious from the totality of the course of conduct shown by undisputed evidence that the confession was coerced, and did not constitute an "expression of free choice." Pp. 356 U. S. 562-567.(b) Even though there may have been sufficient evidence, apart from the coerced confession, to support a conviction, the admission in evidence of the coerced confession over petitioner's objection vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment. Pp. 356 U. S. 567-568.(c) Stein v. New York, 346 U. S. 156, distinguished. P. 356 U. S. 568.226 Ark. 910, 225 S.W.2d 312, reversed, and cause remanded. Page 356 U. S. 561

1970_36

MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join.An indictment was returned in March, 1963, charging petitioner Fred T. Mackey in five counts of evading payment of income taxes by willfully preparing and causing to be prepared false and fraudulent tax returns for the years 1956 through 1960, in violation of 26 U.S.C. § 7201. On January 21, 1964, a jury in the District Court for the Northern District of Indiana found Mackey guilty on all five counts. [Footnote 1] The conviction was affirmed on appeal by the Court of Appeals for the Page 401 U. S. 669 Seventh Circuit in the spring of 1965. 345 F.2d 499 (CA7), cert. denied, 382 U.S. 824 (1965).At petitioner's trial, the Government used the net worth method to prove evasion of income taxes. [Footnote 2] As part of its case, it introduced 60 wagering excise tax returns -- one for every month of each of the five years covered by the indictment -- filed by petitioner pursuant to 26 U.S.C. § 4401. A summary exhibit prepared from these returns and petitioner's income tax returns were also introduced, and an Internal Revenue Service technical advisor testified that, for the years in question, the totals of the gross amount of wagers reported on the wagering tax returns, less the expenses of running petitioner's "policy wheel" operation as reported on his annual income tax returns, exceeded the net profits from gambling reported on the petitioner's income tax returns. Defense counsel objected to the introduction of these exhibits, arguing that they were prejudicial, inflammatory, and irrelevant; the Government responded that the wagering tax returns and the summary exhibit were relevant because they showed a likely source of unreported income. The exhibits were admitted, and the Court of Appeals found, without specific discussion, no error in the ruling. [Footnote 3]On January 29, 1968, this Court held that the Fifth Amendment privilege against compulsory self-incrimination was a valid defense to a prosecution for failure to register as a gambler and to pay the related occupational and gambling excise taxes under 26 U.S.C. Page 401 U. S. 670 §§ 4401, 4411, 4412. Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). Petitioner, who had begun serving his sentence in December, 1965, filed on February 12, 1968, a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence and set aside the judgment of conviction on authority of Marchetti and Grosso. The motion was denied by the District Court for the Northern District of Indiana, [Footnote 4] and the Court of Appeals affirmed. 411 F.2d 504 (CA7 1969).Although the Court of Appeals suggested that petitioner's argument that he had not waived the Fifth Amendment claim by his failure to raise it at trial was open to question, 411 F.2d at 506-507, it specifically held that Marchetti and Grosso would not be applied retroactively to upset a pre-Marchetti conviction for Page 401 U. S. 671 evading payment of income tax simply because the wagering excise tax returns filed pursuant to 26 U.S.C. § 4401 were introduced in evidence at trial. Employing the threefold analysis set forth in our retroactivity decisions, see, e.g., Stovall v. Denno, 388 U. S. 293, 388 U. S. 297 (1967), the Court of Appeals found that law enforcement officials had relied on the old rule, that retroactive application of Marchetti and Grosso in cases such as petitioner's would have a substantial impact on the administration of justice, and that"[t]he unreliability of the factfinding process which is the touchstone of retroactivity is simply not threatened by the impersonal command of the wagering tax laws."411 F.2d at 509. We granted certiorari. 396 U.S. 954.IIn United States v. Kahriger, 345 U. S. 22 (1953), a prosecution for failure to register and pay the gambling tax, this Court held that the registration requirement and the obligation to pay the gambling tax did not violate the Fifth Amendment. The Court construed the privilege as relating"only to past acts, not to future acts that may or may not be committed. . . . Under the registration provisions of the wagering tax, appellee is not compelled to confess to acts already committed, he is merely informed by the statute that, in order to engage in the business of wagering in the future, he must fulfill certain conditions."345 U.S. at 345 U. S. 32-33. Lewis v. United States, 348 U. S. 419 (1955), reaffirmed this construction of the Fifth Amendment. Thirteen years later, we could not agree with what was deemed an "excessively narrow" view of the scope of the privilege. 390 U.S. at 390 U. S. 52. The"force of the constitutional prohibition is [not] diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to Page 401 U. S. 672 evidence.' 390 U.S. at 390 U. S. 54. The gambling registration and tax requirements were held to present substantial risks of self-incrimination, and therefore to be unenforceable; imposition of criminal penalties for noncompliance was an impermissible burden on the exercise of the privilege."Until Marchetti and Grosso, then, the registration and gambling tax provisions had the express approval of this Court; the Fifth Amendment provided no defense to a criminal prosecution for failure to comply. But as of January 29, 1968, the privilege was expanded to excuse noncompliance. The statutory requirement to register and file gambling tax returns was held to compel self-incrimination and the privilege became a complete defense to a criminal prosecution for failure to register and pay the related taxes. It followed that the registration and excise tax returns filed in response to the statutory command were compelled statements within the meaning of the Fifth Amendment, and accordingly were inadmissible in evidence as part of the prosecution's case in chief. The question before us is whether the Marchetti-Grosso rule applies retroactively and invalidates Mackey's conviction because his gambling excise tax returns were introduced against him at his trial for income tax evasion.We have today reaffirmed the nonretroactivity of decisions overruling prior constructions of the Fourth Amendment. Williams v. United States and Elkanich v. United States, ante, p. 401 U. S. 646. The decision in those cases represents the approach to the question of when to accord retroactive sweep to a new constitutional rule taken by this Court in the line of cases from Linkletter [Footnote 5] in 1965 to Desist [Footnote 6] in 1969. Among those cases were two which determined that earlier decisions extending the Page 401 U. S. 673 reach of the Fifth Amendment privilege against compelled self-incrimination would not be retroactively applied to invalidate prior convictions that in all respects conformed to the then controlling law.In Tehan v. Shott, 382 U. S. 406 (1966), the Court declined to apply the rule of Griffin v. California, 380 U. S. 609 (1965), to prisoners seeking collateral relief. Griffin had construed the Fifth Amendment to forbid comment on defendants' failure to testify, thereby removing a burden from the exercise of the privilege against compulsory self-incrimination and further implementing its purpose. The basic purpose of the privilege, we said, was not related to "protecting the innocent from conviction," 382 U.S. at 382 U. S. 415; the privilege "is not an adjunct to the ascertainment of truth," but is aimed at serving the complex of values on which it has historically rested. 382 U.S. at 382 U. S. 416. Given this purpose, clear reliance on the pre-Griffin rules, and the frustration of state interests which retroactivity would have entailed, we refused relief to a state prisoner seeking collateral relief although the prosecutor's comment on his failure to take the stand at his trial would have infringed the new rule that was announced in Griffin and was being applied in contemporary trials.Johnson v. New Jersey, 384 U. S. 719 (1966), reaffirmed this view of the Fifth Amendment by declining to apply the Miranda [Footnote 7] rules to cases pending on direct review as well as to those involving applications for collateral relief. Stating that the "prime purpose of these rulings is to guarantee full effectuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice," 384 U.S. at 384 U. S. 729, the Court also recognized that the new rules to some extent did guard against the possibility of unreliable admissions given Page 401 U. S. 674 during custodial interrogation. Id. at 384 U. S. 730. The question, however, was one of "probabilities." The hazard of untrustworthy results in past trials was not sufficiently apparent to require retroactive application in view of the existing, well defined remedies against the use of many involuntary confessions, the obvious fact that the new warnings had not been standard practice prior to Miranda, and the consequent disruption to the administration of the criminal law.IIGuided by our decisions dealing with the retroactivity of new constitutional interpretations of the broad language of the Bill of Rights, we agree with the Court of Appeals that Marchetti and Grosso should not have any retroactive effect on Mackey's conviction. Petitioner was convicted in strict accordance with then-applicable constitutional norms. Mackey would have a significant claim only if Marchetti and Grosso must be given full retroactive sweep. But, in overruling Kahriger and Lewis, the Court's purpose was to provide for a broader implementation of the Fifth Amendment privilege a privilege that does not include at its core a concern for improving the reliability of the results reached at criminal trials. There is no indication in Marchetti or Grosso that one of the considerations which moved the Court to hold that the Congress could not constitutionally compel citizens to register as gamblers and file related tax returns was the probable unreliability of such statements once given. Petitioner has not advanced any objective considerations suggesting such unreliability. The wagering tax returns introduced in evidence at his trial have none of the characteristics, and hence none of the potential unreliability, of coerced confessions produced by "overt and obvious coercion." Johnson, 384 U.S. at 384 U. S. 730. Nor does Mackey suggest that his returns -- made under Page 401 U. S. 675 oath -- were inaccurate in any respect. [Footnote 8] Thus, a gambling excise tax return, like physical evidence seized in violation of a new interpretation of the Fourth Amendment, is concededly relevant and probative even though obtained by the Government through means since defined by this Court as constitutionally objectionable. As in Desist, Elkanich, and Williams, the result here should be that a pre-Marchetti trial in which the Government employed such evidence is not set aside through retroactive application of the new constitutional principle.The short of the matter is that Marchetti and Grosso raise not the slightest doubt about the accuracy of the verdict of guilt returned here. Under these circumstances, the principles represented by Elkanich and Williams, as well as by Tehan and Johnson, must control. For Tehan and Johnson indicate that, even though decisions reinterpreting the Fifth Amendment may create marginal doubts as to the accuracy of the results of past trials, the purposes of those decisions are adequately served by prospective application. Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtMackey v. United States, 401 U.S. 667 (1971)Mackey v. United StatesNo. 36Argued October 21, 1970Decided April 5, 1971401 U.S. 667SyllabusAt petitioner's trial for income tax evasion, the Government used monthly wagering tax forms petitioner had filed, as required by statute, to show that the gross amount of wagers he reported, less business expenses, exceeded the gambling profits reported on his income tax returns. Petitioner objected on the ground that the forms were prejudicial and irrelevant, but he was convicted in 1964, and the Court of Appeals affirmed. After this Court's 1968 decisions in Marchetti v. United States, 390 U. S. 39, and Grosso v. United States, 390 U. S. 62, petitioner applied for post-conviction relief on the ground that the Fifth Amendment barred the prosecution's use of the wagering tax forms. The District Court denied the application. The Court of Appeals affirmed, holding that Marchetti and Grosso would not be applied retroactively to overturn the earlier income tax evasion conviction based on the then-applicable constitutional principles.Held: The judgment is affirmed. Pp. 401 U. S. 671-675, 401 U. S. 700-701, 401 U. S. 703-713.411 F.2d 504, affirmed.MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that Marchetti and Grosso are not to be applied retroactively, since no threat to the reliability of the factfinding process was involved in the use of the wagering tax forms at petitioner's trial. Tehan v. Shott, 382 U. S. 406; Johnson v. New Jersey, 384 U. S. 719; Williams v. United States, ante, p. 401 U. S. 646. Pp. 401 U. S. 671-675.MR. JUSTICE HARLAN concluded that, in this case, here on collateral review, the judgment should be affirmed, since he cannot say that the pre-Marchetti rule that prevailed at the time of petitioner's conviction, viz., that the registration requirement and obligation to pay the gambling tax did not violate the Fifth Amendment, was so grossly erroneous as to work an inexcusable inequity against petitioner, and that the then-existing justification for that result (that persons could avoid self-incrimination by ceasing to engage in illegal activities) is not without some force. Pp. 401 U. S. 700-701.MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded that the Fifth Amendment does not bar the use of information Page 401 U. S. 668 that, in furtherance of the general scheme of collecting taxes and enforcing the tax laws, required those in the business of accepting wagers to report their income, a situation readily distinguishable from that in Marchetti and Grosso, where the Amendment was held to bar forced disclosure of information that would have subjected the individual concerned to the "real and appreciable" hazard of self-incrimination for violating pervasive state or federal laws proscribing gambling. Pp. 401 U. S. 703-713.WHITE, J., announced the Court's judgment and delivered an opinion in which BURGER, C.J., and STEWART and BLACKMUN, JJ., joined. HARLAN, J., filed an opinion concurring in the judgment, post, p. 401 U. S. 675. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 401 U. S. 702. DOUGLAS, J., filed a dissenting opinion, in which BLACK, J., joined, post, p. 401 U. S. 713.

1975_74-883

MR. JUSTICE BRENNAN delivered the opinion of the Court.Section 7(b) of the Natural Gas Act, 52 Stat. 824, as amended, 15 U.S.C. § 717f(b), provides that"[n]o natural gas company shall abandon all Page 424 U. S. 496 or any portion of its facilities subject to the jurisdiction of the [Federal Power] Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission . . . that the present or future public convenience or necessity permit such abandonment. [Footnote 1]"The question presented in this case is whether the FPC may, upon a proper finding of public convenience or necessity, simultaneously authorize both the sale of natural gas in interstate commerce by a producer and the abandonment of the sale at a future date certain. The Court of Appeals for the District of Columbia Circuit construed § 7(b) to empower the FPC to authorize abandonment only when and if proposed at the end of the contract term, thus precluding power to authorize abandonment simultaneously with certificating new producer sales. Accordingly, the Court of Appeals set aside the FPC order involved in this case insofar as it permits the Commission, at the time it issues a certificate of public convenience and necessity, to authorize the producer to terminate the sale at the end of the contract term. 164 U.S.App.D.C. 1, 502 F.2d 461 (1974). We granted certiorari. 422 U.S. 1006 (1975). We reverse.IFPC Order No. 455, 48 F.P.C. 218, issued August 3, 1972, is the order involved. The order was promulgated Page 424 U. S. 497 under FPC rulemaking authority pursuant to a notice of April 6, 1972, 37 Fed.Reg. 7345, as an addition to the FPC's general rules of practice and procedure, 18 CFR § 2.75 (1975). Order No. 455 established an "optional procedure for certificating new producer sales of natural gas." 48 F.P.C. at 218. The new procedure did not displace area pricing, but instead provided an alternative to "stimulate and accelerate domestic exploration and development of natural gas reserves." Id. at 225. The procedure was necessary, the Commission found, because natural gas producers were frequently unable, due to hazards of area price revisions in lengthy appellate review proceedings, to rely upon rates established by the FPC in its area rate orders, and thus were discouraged from exploring for new gas and committing it to the interstate market. For"there is no assurance at the present time that a producer may not ultimately have to refund some of an initial rate . . . upon which the producer relied when it dedicated a new gas supply to the interstate market."Id. at 222-223."[T]he producer does not know . . . how much it will get if it develops and sells new gas to the interstate market. The producer knows for sure only that, once it sells in interstate commerce it cannot stop deliveries."Id. at 223. "This uncertainty," the Commission found, "has impeded domestic exploration and development." Ibid.The optional procedure introduced by Order No. 455 was designed to "lessen rate uncertainty which has prevailed since the early 1960's." Id. at 219. The procedure has several features. First, it permits producers to tender for FPC approval contracts for the sale of new natural gas [Footnote 2] at rates that may exceed the maximum Page 424 U. S. 498 authorized by the applicable rate order. [Footnote 3] Second, the FPC will determine in a single proceeding whether the "public convenience and necessity" under § 7 (c) of the Act, 15 U.S.C. § 717f(c), warrants the issuance of a certificate authorizing the sale, and whether the rates called for by the contract are "just and reasonable" under § 4(a), 15 U.S.C. § 717c(a). Third, a permanent certificate issued by the Commission and accepted by the producer is not subject to change in later proceedings under § 4 of the Act, [Footnote 4] 15 U.S.C. § 717c, and the rates may be collected without risk of refund obligations. 48 F.P.C. at 226. See 18 CFR § 2.75(d) (1975). Fourth, Order No. 455 authorizes inclusion in the permanent certificate of the abandonment assurance -- or "pre-granted abandonment" -- called in question in this case. 18 CFR § 2.75(e) (1975). [Footnote 5] The authority to include assurance that the producer may abandon the sale at the end of the contract term is, however, to be exercised only upon appropriate Page 424 U. S. 499 findings by the FPC of public convenience or necessity, as required by § 7(b). Order No. 455-A, 48 F.P.C. 477, 481 (1972).The importance to the producer of the pre-granted abandonment provision is obvious. Pre-granted abandonment gives the producer assurance that his present sale will not indefinitely commit the gas to what may be a lower priced interstate market: he will be free on the contract expiration date to discontinue deliveries to the purchaser without having to demonstrate again that abandonment is consistent with the public convenience or necessity.IIThe entire optional procedure of Order No. 455 was attacked in petitions for review before the Court of Appeals, which upheld the order in all respects save the pre-granted abandonment authority. [Footnote 6] In holding that § 7(b) requires a "public convenience or necessity" finding by the FPC at the time of the proposed abandonment, thus precluding such finding at the time of certification, the Court of Appeals stated, 164 U.S.App.D.C. at 12, 502 F.2d at 472:"Pre-granted abandonment would leave a producer free to discontinue service to the interstate market, perhaps years after the original certification, with no contemporaneous obligation on the producer to justify withdrawal of service as consistent with the public convenience and necessity. We think Section 7(b) does not contemplate or authorize such procedure."". . . It appears to us . . . that pre-granted abandonment Page 424 U. S. 500 requires more clairvoyance than even the Commission's expertise reasonably encompasses."We find nothing on the face of § 7(b) to support the holding that the section "does not contemplate or authorize such procedure." There is no express provision prescribing the timing of the finding of public convenience or necessity that is prerequisite to FPC authority to allow the producer to abandon a sale. In the absence of an explicit direction, the inference may reasonably be made that Congress left the timing of the finding within the general discretionary power granted the FPC "to regulate the abandonment of service," S.Rep. No. 1162, 75th Cong., 1st Sess., 2 (1937); H.R.Rep. No. 709, 75th Cong., 1st Sess., 2 (1937). "[T]he Commission's broad responsibilities . . . demand a generous construction of its statutory authority," Permian Basin Area Rate Cases, 390 U. S. 747, 390 U. S. 776 (1968) (footnote omitted), and that inference is plainly consistent with Congress' regulatory goals.The reasoning of the Court of Appeals that pre-granted abandonment requires "clairvoyance" overlooks the express power granted to the FPC in § 7(b) to allow abandonment upon a proper finding that the "present or future" public convenience or necessity warrants permission to abandon. The power to authorize an abandonment upon finding that it is justified by future public convenience or necessity clearly encompasses advance authorization warranted by consideration of future circumstances and the necessary estimation of tomorrow's needs. That has been our conclusion when FPC authority to make forecasts of future events has been challenged in other contexts. For example, in rejecting the contention that the FPC could not consider forecasts of the future under the nearly identical standard of § 7(e), FPC v. Transcontinental Gas Corp., 365 U. S. 1, 365 U. S. 29 (1961), stated that "a forecast of the direction in which future public Page 424 U. S. 501 interest lies necessarily involves deductions based on the expert knowledge of the agency." Similarly, as to another agency, we have stated our unwillingness to let "uncertainties as to the future . . . paralyze the [Interstate Commerce] Commission into inaction." United States v. Detroit & Cleveland Nav. Co., 326 U. S. 236, 326 U. S. 241 (1945). Thus, to the extent that exercising the pre-granted abandonment authority entails forecasting future developments affecting supply and demand, we cannot say that requiring this degree of "clairvoyance" renders the provision beyond FPC authority.Furthermore, the FPC may determine that present supply and demand conditions require that pre-granted abandonment be authorized in appropriate cases to encourage exploration for new gas and its dedication to the interstate market, since the unwillingness of producers to make indefinite commitments has made potentially available supplies inaccessible to the interstate market. We conclude therefore that an optional procedure encompassing pre-granted authority intended to draw new gas supplies to the interstate market is clearly within FPC authority to permit abandonments justified by either present or future public convenience or necessity. [Footnote 7]Order No. 455 does not authorize specific abandonments. It merely establishes an optional procedure under which pre-granted abandonment may be authorized in appropriate cases. Any pre-granted abandonments approved under this procedure are subject to judicial review under the Act. See § 19(b), 15 U.S.C. § 717r(b). We should not presume, as the Court of Appeals Page 424 U. S. 502 did, that the Commission is not competent to make proper findings supported by substantial evidence and consistent with § 7(b) in approving pre-granted abandonment. Rather, the question whether particular pre-granted abandonment authorizations are beyond the Commission's expertise should await resolution in concrete cases. See FPC v. Texaco, Inc., 417 U. S. 380, 417 U. S. 392 (1974). [Footnote 8] It suffices for the purposes of this case that we read § 7(b) as leaving the timing of approval of abandonments to FPC discretion. [Footnote 9]IIIThe Court of Appeals stated that its construction of § 7(b) as denying FPC authority to authorize abandonment Page 424 U. S. 503 on a future date certain at the time of certification was "fortified" by Sunray Md-Continent Oil Co. v. FPC, 364 U. S. 137 (1960) (Sunray II). Sunray II held hat the FPC had authority to tender a certificate of public convenience and necessity without time limitation to a producer who applied for a certificate authorizing sales for 20 years only. The Court reasoned, id. at 364 U. S. 142:"If petitioners' contentions, as to the want of authority in the Commission to grant a permanent certificate where one of limited duration has been sought for, were to be sustained, the way would be clear for every independent producer of natural gas to seek certification only for the limited period of its initial contract with the transmission company, and thus automatically be free at a future date, untrammeled by Commission regulation, to reassess whether it desired to continue serving the interstate market."We understand the Court of Appeals to read this passage as implying that a limited-term certificate would be barred by the Act, and that a permanent certificate with pre-granted abandonment would also be barred, since such a certificate, as the FPC concedes, Brief for FPC 22, is legally and functionally indistinguishable from a limited-term certificate. [Footnote 10] But the Court of Appeals' reading of Sunray II was patently erroneous. Sunray II, in Page 424 U. S. 504 fact, indicated that the FPC is authorized to issue limited-term certificates. The Court of Appeals for the Tenth Circuit had addressed that question at an earlier stage of the litigation and had held that the FPC was authorized to issue such certificates. Sunray Mid-Continent Oil Co. v. FPC, 239 F.2d 97 (1956), rev'd on other grounds, 353 U.S. 944 (1957) (Sunray I). [Footnote 11] Sunray II implicitly approved this holding in stating, 364 U.S. at 364 U. S. 157: "There is no contention that the Commission was again indulging in the erroneous notion that it had no power to issue a limited certificate."Thus, rather than imply that the Act forbids the issuance of a limited-term certificate, Sunray II approved the holding of the Court of Appeals for the Tenth Circuit that the Act permits the issuance of such a certificate. [Footnote 12] Sunray II therefore supports the conclusion we have reached and does not fortify the Court of Appeals' construction of § 7(b). In both the case of the limited-term certificate and the case of the permanent certificate with pre-granted abandonment, the FPC determines at the time of certification that the present or future public convenience or necessity justifies the issuance of a certificate that allows discontinuance of service at a future date certain without need for further proceedings. Page 424 U. S. 505The judgment of the Court of Appeals is reversed insofar as it set aside the pre-granted abandonment provision of Order No. 455, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtFPC v. Moss, 424 U.S. 494 (1976)Federal Power Commission v. MossNo. 74-883Argued December 3, 1975Decided March 3, 1976424 U.S. 494SyllabusThe Federal Power Commission (FPC), for the purpose of "stimulat[ing] and accelerat[ing] domestic exploration and development of natural gas reserves," by order established an "optional procedure for certificating new producer sales of natural gas." Under the order, producers may tender for FPC approval contracts for the sale of new natural gas at rates exceeding the maximum authorized by the applicable rate order; the FPC will determine in a single proceeding whether the "public convenience and necessity" under § 7(c) of the Natural Gas Act (Act) warrants the issuance of a certificate authorizing the sale and whether the contract rates are "just and reasonable" under § 4(a); and a permanent certificate issued by the FPC and accepted by the producer is not subject to change in later proceedings under § 4, and the rates may be collected without risk of refund obligations. At the time it issues the certificate, the FPC may also authorize the producer to abandon the sale at the end of the contract term if such abandonment is warranted by the "public convenience or necessity" under § 7(b), and the producer, when the contract expires, is then free to discontinue deliveries to the original purchaser without having to demonstrate again that abandonment comports with the public convenience or necessity. Petitions for review were filed attacking the entire optional procedure, but the Court of Appeals upheld the order except for the pre-granted abandonment authority, which the court held contravened § 7(b) of the Act. Under that provision, no natural gas company shall abandon its facilities or service subject to the FPC's jurisdiction without FPC approval, based upon a finding by the FPC that "the present or future public convenience or necessity permit such abandonment."Held: An optional procedure encompassing pre-granted abandonment authority intended to draw new gas supplies to the interstate market is clearly within the FPC's authority under § 7(b) to permit abandonments justified by present or future public convenience or necessity, the timing of the abandonment approval being within the FPC's discretion. Page 424 U. S. 495 The order, which does not authorize specific abandonments, merely establishes an optional procedure under which pre-granted abandonments, subject to judicial review, may be granted in appropriate cases, and the question whether particular abandonment authorizations are beyond the FPC's expertise should await resolution in concrete cases. In both the case of the limited-time certificate (which the Court of Appeals, by an erroneous construction of Sunray Mid-Continent Oil Co. v. FPC, 364 U. S. 137, thought was barred by the Act) and the case of the permanent certificate with pre-granted abandonment, the FPC properly can determine at the time of certification that he present or future public convenience or necessity justifies the issuance of the certificate allowing discontinuance of service at a future date without need for further proceedings. Pp. 424 U. S. 499-504.164 U.S.App.D.C. 1, 502 F.2d 461, reversed in part and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 424 U. S. 505. STEWART, POWELL, and STEVENS, JJ., took no part in the consideration or decision of the case.

1990_90-5319

JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether an accused's invocation of his Sixth Amendment right to counsel during a judicial proceeding constitutes an invocation of his Miranda right to counsel.IPetitioner Paul McNeil was arrested in Omaha, Nebraska, in May, 1987, pursuant to a warrant charging him with an armed robbery in West Allis, Wisconsin, a suburb of Milwaukee. Shortly after his arrest, two Milwaukee County deputy sheriffs arrived in Omaha to retrieve him. After advising him of his Miranda rights, the deputies sought to question him. He refused to answer any questions, but did not request an attorney. The deputies promptly ended the interview.Once back in Wisconsin, petitioner was brought before a Milwaukee County court commissioner on the armed robbery charge. The Commissioner set bail and scheduled a preliminary examination. An attorney from the Wisconsin Public Defender's office represented petitioner at this initial appearance.Later that evening, Detective Joseph Butts of the Milwaukee County Sheriff's Department visited petitioner in jail. Butts had been assisting the Racine County, Wisconsin, police in their investigation of a murder, attempted murder, and armed burglary in the town of Caledonia; petitioner was a suspect. Butts advised petitioner of his Miranda rights, and petitioner signed a form waiving them. In this Page 501 U. S. 174 first interview, petitioner did not deny knowledge of the Caledonia crimes, but said that he had not been involved.Butts returned two days later with detectives from Caledonia. He again began the encounter by advising petitioner of his Miranda rights, and providing a waiver form. Petitioner placed his initials next to each of the warnings and signed the form. This time, petitioner admitted that he had been involved in the Caledonia crimes, which he described in detail. He also implicated two other men, Willie Pope and Lloyd Crowley. The statement was typed up by a detective and given to petitioner to review. Petitioner placed his initials next to every reference to himself and signed every page.Butts and the Caledonia Police returned two days later, having in the meantime found and questioned Pope, who convinced them that he had not been involved in the Caledonia crimes. They again began the interview by administering the Miranda warnings, and obtaining petitioner's signature and initials on the waiver form. Petitioner acknowledged that he had lied about Pope's involvement to minimize his own role in the Caledonia crimes, and provided another statement recounting the events, which was transcribed, signed, and initialed as before.The following day, petitioner was formally charged with the Caledonia crimes and transferred to that jurisdiction. His pretrial motion to suppress the three incriminating statements was denied. He was convicted of second-degree murder, attempted first-degree murder, and armed robbery, and sentenced to 60 years in prison.On appeal, petitioner argued that the trial court's refusal to suppress the statements was reversible error. He contended that his courtroom appearance with an attorney for the West Allis crime constituted an invocation of the Miranda right to counsel, and that any subsequent waiver of that right during police-initiated questioning regarding any offense was invalid. Observing that the State's Supreme Page 501 U. S. 175 Court had never addressed this issue, the Court of Appeals certified to that court the following question:"Does an accused's request for counsel at an initial appearance on a charged offense constitute an invocation of his fifth amendment right to counsel that precludes police interrogation on unrelated, uncharged offenses?"App. 16.The Wisconsin Supreme Court answered "no." 155 Wis.2d 24, 454 N.W.2d 742 (1990). We granted certiorari, 498 U.S. 937 (1990).IIThe Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." In Michigan v. Jackson, 475 U. S. 625 (1986), we held that, once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective. It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the West Allis armed robbery, for which he had been formally charged.The Sixth Amendment right, however, is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is,"'at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'"United States v. Gouveia, 467 U. S. 180, 467 U. S. 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682, 406 U. S. 689 (1972) (plurality opinion)). And just as the right is offense-specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific."The police have an interest . . . in investigating new or additional crimes [after an individual is formally charged Page 501 U. S. 176 with one crime.] . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. . . ."Maine v. Moulton, 474 U. S. 159, 474 U. S. 179-180 (1985)."Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses."Id. at 474 U. S. 180, n. 16. See also Moran v. Burbine, 475 U. S. 412, 475 U. S. 431 (1986). Because petitioner provided the statements at issue here before his Sixth Amendment right to counsel with respect to the Caledonia offenses had been (or even could have been) invoked, that right poses no bar to the admission of the statements in this case.Petitioner relies, however, upon a different "right to counsel," found not in the text of the Sixth Amendment, but in this Court's jurisprudence relating to the Fifth Amendment guarantee that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." In Miranda v. Arizona, 384 U. S. 436 (1966), we established a number of prophylactic rights designed to counteract the "inherently compelling pressures" of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 384 U. S. 475.In Edwards v. Arizona, 451 U. S. 477 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the Page 501 U. S. 177 current interrogation cease, but he may not be approached for further interrogation "until counsel has been made available to him," 451 U.S. at 451 U. S. 484-485 -- which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U. S. 146 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U. S. 344, 494 U. S. 350 (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U. S. 675 (1988).Having described the nature and effects of both the Sixth Amendment right to counsel and the Miranda-Edwards "Fifth Amendment" right to counsel, we come at last to the issue here: Petitioner seeks to prevail by combining the two of them. He contends that, although he expressly waived his Miranda right to counsel on every occasion he was interrogated, those waivers were the invalid product of impermissible approaches, because his prior invocation of the offense-specific Sixth Amendment right with regard to the West Allis burglary was also an invocation of the non-offense-specific Miranda-Edwards right. We think that is false as a matter of fact and inadvisable (if even permissible) as a contrary-to-fact presumption of policy.As to the former: The purpose of the Sixth Amendment counsel guarantee -- and hence the purpose of invoking it -- is to "protec[t] the unaided layman at critical confrontations" with his "expert adversary," the government, after "the adverse Page 501 U. S. 178 positions of government and defendant have solidified" with respect to a particular alleged crime. Gouveia, 467 U.S. at 467 U. S. 189. The purpose of the Miranda-Edwards guarantee, on the other hand -- and hence the purpose of invoking it -- is to protect a quite different interest: the suspect's "desire to deal with the police only through counsel," Edwards, 451 U.S. at 451 U. S. 484. This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation), and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the "adversarial relationship" produced by a pending prosecution has yet arisen). To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards interest. One might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution. It can be said, perhaps, that it is likely that one who has asked for counsel's assistance in defending against a prosecution would want counsel present for all custodial interrogation, even interrogation unrelated to the charge. That is not necessarily true, since suspects often believe that they can avoid the laying of charges by demonstrating an assurance of innocence through frank and unassisted answers to questions. But even if it were true, the likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards. The rule of that case applies only when the suspect "ha[s] expressed" his wish for the particular sort of lawyerly assistance that is the subject of Miranda. Edwards, supra, 451 U.S. at 451 U. S. 484 (emphasis added). It requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction."[T]o find that [the defendant] invoked his Fifth Amendment right to counsel on the present charges merely by requesting Page 501 U. S. 179 the appointment of counsel at his arraignment on the unrelated charge is to disregard the ordinary meaning of that request."State v. Stewart, 113 Wash. 2d 462, 471, 780 P.2d 844, 849 (1989), cert. denied, 494 U.S. 1020 (1990).Our holding in Michigan v. Jackson, 475 U. S. 625 (1986), does not, as petitioner asserts, contradict the foregoing distinction; to the contrary, it rests upon it. That case, it will be recalled, held that after the Sixth Amendment right to counsel attaches and is invoked, any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible. The State in Jackson opposed that outcome on the ground that assertion of the Sixth Amendment right to counsel did not realistically constitute the expression (as Edwards required) of a wish to have counsel present during custodial interrogation. See 475 U.S. at 475 U. S. 632-633. Our response to that contention was not that it did constitute such an expression, but that it did not have to, since the relevant question was not whether the Miranda "Fifth Amendment" right had been asserted, but whether the Sixth Amendment right to counsel had been waived. We said that, since our"settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel, . . . we presume that the defendant requests the lawyer's services at every critical stage of the prosecution."475 U.S. at 475 U. S. 633 (emphasis added). The holding of Jackson implicitly rejects any equivalence in fact between invocation of the Sixth Amendment right to counsel and the expression necessary to trigger Edwards. If such invocation constituted a real (as opposed to merely a legally presumed) request for the assistance of counsel in custodial interrogation, it would have been quite unnecessary for Jackson to go on to establish, as it did, a new Sixth Amendment rule of no police-initiated Page 501 U. S. 180 interrogation; we could simply have cited and relied upon Edwards. [Footnote 1]There remains to be considered the possibility that, even though the assertion of the Sixth Amendment right to counsel does not, in fact, imply an assertion of the Miranda "Fifth Amendment" right, we should declare it to be such as a matter of sound policy. Assuming we have such an expansive power under the Constitution, it would not wisely be exercised. Petitioner's proposed rule has only insignificant advantages. If a suspect does not wish to communicate with the police except through an attorney, he can simply tell them that when they give him the Miranda warnings. There is not the remotest chance that he will feel "badgered" by their asking to talk to him without counsel present, since the subject will not be the charge on which he has already requested counsel's assistance (for in that event, Jackson would preclude initiation of the interview), and he will not have rejected uncounseled interrogation on any subject before (for, in that event, Edwards would preclude initiation of the interview). The proposed rule would, however, seriously impede effective law enforcement. The Sixth Amendment right to Page 501 U. S. 181 counsel attaches at the first formal proceeding against an accused, and in most States, at least with respect to serious offenses, free counsel is made available at that time and ordinarily requested. Thus, if we were to adopt petitioner's rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. Since the ready ability to obtain uncoerced confessions is not an evil, but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers"are more than merely 'desirable;' they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law."Moran, 475 U.S. at 475 U. S. 426 (citation omitted). [Footnote 2]Petitioner urges upon us the desirability of providing a "clear and unequivocal" guideline for the police: no police-initiated questioning of any person in custody who has requested counsel to assist him in defense or in interrogation. But the police do not need our assistance to establish such a Page 501 U. S. 182 guideline; they are free, if they wish, to adopt it on their own. Of course, it is our task to establish guidelines for judicial review. We like them to be "clear and unequivocal," see, e.g., Roberson, 486 U.S. at 486 U. S. 681-682, but only when they guide sensibly, and in a direction we are authorized to go. Petitioner's proposal would, in our view, do much more harm than good, and is not contained within, or even in furtherance of, the Sixth Amendment's right to counsel or the Fifth Amendment's right against compelled self-incrimination. [Footnote 3]* * * *"This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."Douglas v. Jeannette, 319 U. S. 157, 319 U. S. 181 (1943) (opinion of Jackson, J.). We decline to add yet another story to Miranda. The judgment of the Wisconsin Supreme Court isAffirmed

U.S. Supreme CourtMcNeil v. Wisconsin, 501 U.S. 171 (1991)McNeil v. WisconsinNo. 90-5319Argued Feb. 25, 1991Decided June 13, 1991501 U.S. 171SyllabusCharged with an armed robbery in West Allis, Wisconsin, petitioner McNeil was represented by a public defender at a bail hearing. While in jail on that charge, he was questioned by police about a murder and related crimes in Caledonia, Wisconsin. He was advised of his Miranda rights, signed forms waiving them, and made statements incriminating himself in the Caledonia offenses. He was then formally charged with the latter crimes, his pretrial motion to suppress his statements was denied, and he was convicted. His conviction was affirmed on appeal, the State Supreme Court holding that an accused's request for counsel at an initial appearance on a charged offense does not constitute an invocation of his Fifth Amendment right to counsel that precludes police interrogation on unrelated, uncharged offenses.Held: An accused's invocation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the right to counsel derived by Miranda v. Arizona, 384 U. S. 436, from the Fifth Amendment's guarantee against compelled self-incrimination. Pp. 501 U. S. 175-182.(a) The identity between the two rights that McNeil asserts is false as a matter of fact. The Sixth Amendment right, which does not attach until the initiation of adversary judicial proceedings, is offense-specific, Maine v. Moulton, 474 U. S. 159, 474 U. S. 179-180 and n. 16, as is its effect, under Michigan v. Jackson, 475 U. S. 625, of invalidating subsequent waivers during police-initiated questioning. Thus, McNeil's invocation of that right with respect to the West Allis robbery poses no bar to the admission of his statements regarding the Caledonia crimes, with which he had not been charged at the time he made the statements. Moreover, although the Miranda right to counsel is non-offense-specific, Arizona v. Roberson, 486 U. S. 675, and, once asserted, prevents any further police-initiated interrogation outside the presence of counsel, Edwards v. Arizona, 451 U. S. 477, 451 U. S. 484-485, its assertion cannot be inferred from the invocation of the Sixth Amendment right in light of the differing purposes and effects of the two rights. The Sixth Amendment right is intended to protect the unaided layman at critical confrontations with the government after the initiation of the adversary process with respect to a particular crime, United States v. Gouveia, 467 U. S. 180, 467 U. S. 189. The Miranda-Edwards guarantee is intended to protect the suspect's Page 501 U. S. 172 "desire to deal with the police only through counsel," Edwards, supra, 451 U.S. at 451 U. S. 484. Requesting the assistance of an attorney at a bail hearing does not satisfy the minimum requirement of some statement that can reasonably be construed as an expression of a desire for counsel in dealing with custodial interrogation by the police. Pp. 501 U. S. 175-1780.(b) Nor will this Court declare as a matter of sound policy (assuming the existence of such expansive power) that assertion of the Sixth Amendment right implies invocation of the Miranda right. McNeil's proposed rule offers only insignificant advantages, and would seriously impede effective law enforcement by precluding uncounseled but uncoerced admissions of guilt pursuant to valid Miranda waivers. Pp. 501 U. S. 180-182.155 Wis.2d 24, 454 N.W.2d 742 (1990), affirmed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 501 U. S. 183. STEVENS, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 501 U. S. 183. Page 501 U. S. 173

1987_86-489

JUSTICE SCALIA delivered the opinion of the Court.Petitioners W. T. and Maryanne Grimes Langley seek reversal of a decision by the United States Court of Appeals for the Fifth Circuit granting the Federal Deposit Insurance Corporation (FDIC) summary judgment on its claim for payment of a promissory note signed by petitioners. 792 F.2d 541 (1986). The Fifth Circuit rejected petitioners' contention that a defense of misrepresentation of existing facts is not barred by 12 U.S.C. §1823(e), because such a representation is not an "agreement" under that section. We granted certiorari to resolve a conflict in the Courts of Appeals. 479 U.S. 1028 (1987). Compare Gunter v. Hutcheson, 674 F.2d 862, 867 (CA11), cert. denied, 459 U.S. 826 (1982); FDIC v. Hatmaker, 756 F.2d 34, 37 (CA6 1985) (dictum).IThe Langleys purchased land in Pointe Coupee Parish, Louisiana, in 1980. To finance the purchase, they borrowed $450,000 from Planters Trust & Savings Bank of Opelousas, Louisiana, a bank insured by the FDIC. In consideration for the loan, they executed a note, a collateral mortgage, and personal guarantees. The note was renewed several times, the last renewal being in March 1982, for the principal amount of $468,124.41.In October, 1983, after the Langleys had failed to pay the first installment due on the last renewal of the note, Planters brought the present suit for principal and interest in a Louisiana state trial court. The Langleys removed the suit, on grounds of diversity, to the United States District Court for the Middle District of Louisiana, where it was consolidated with a suit by the Langleys seeking more than $5 million in damages from Planters and others. The Langleys alleged as one of the grounds of complaint in their own suit, and as a defense against Planters' claim in the present suit, that the Page 484 U. S. 89 1980 land purchase and the notes had been procured by misrepresentations. In particular, they alleged that the notes had been procured by the bank's misrepresentations that the property conveyed in the land purchase consisted of 1,628.4 acres, when in fact it consisted of only 1,522, that the property included 400 mineral acres, when in fact it contained only 75, and that there were no outstanding mineral leases on the property, when in fact there were. [Footnote 1] No reference to these representations appears in the documents executed by the Langleys, in the bank's records, or in the minutes of the bank's board of directors or loan committee.In April, 1984, the FDIC conducted an examination of Planters during which it learned of the substance of the lawsuits with the Langleys, including the allegations of Planters' misrepresentations. On May 18, 1984, the Commissioner of Financial Institutions for the State of Louisiana closed Planters because of its unsound condition and appointed the FDIC as receiver. The FDIC thereupon undertook the financing of a purchase and assumption transaction pursuant to 12 U.S.C. § 1823(c)(2), in which all the deposit liabilities and most of the assets of Planters were assumed by another FDIC-insured bank in the community. Because the amount of the liabilities greatly exceeded the value of the assets, the FDIC paid the assuming bank $36,992,000, in consideration for which the FDIC received, inter alia, the Langleys' March, 1982, note.In October, 1984, the FDIC was substituted as a plaintiff in this lawsuit, and moved for summary judgment on its claim. The District Court granted the motion, 615 F. Supp. 749 Page 484 U. S. 90 (WD La.1985), and was sustained on appeal. The Fifth Circuit held that the word "agreement" in 12 U.S.C. § 1823(e) encompassed the kinds of material terms or warranties asserted by the Langleys in their misrepresentation defenses and, because the requirements of § 1823(e) were not met, those defenses were barred. 792 F.2d at 545-546. We granted the Langleys' petition for certiorari on the issue whether, in an action brought by the FDIC in its corporate capacity for payment of a note, § 1823(e) bars the defense that the note was procured by fraud in the inducement even when the fraud did not take the form of an express promise.IIThe Federal Deposit Insurance Act of 1950, § 13(e), 64 Stat. 889, as amended, 12 U.S.C. § 1823(e), provides:"No agreement which tends to diminish or defeat the right, title or interest of the Corporation [FDIC] in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank."APetitioners' principal contention is that the word "agreement" in the foregoing provision encompasses only an express promise to perform an act in the future. We do not agree.As a matter of contractual analysis, the essence of petitioners' defense against the note is that the bank made certain Page 484 U. S. 91 warranties regarding the land, the truthfulness of which was a condition to performance of their obligation to repay the loan. See 1 A. Corbin, Contracts § 14, p. 31 (1963) ("[T]ruth [of the warranty] is a condition precedent to the duty of the other party"); accord, 5 S. Williston, Contracts § 673, pp. 168-171 (3d ed.1961); J. Murray, Contracts § 136, pp. 275-276 (2d rev. ed.1974). As used in commercial and contract law, the term "agreement" often has "a wider meaning than . . . promise," Restatement (Second) of Contracts § 3, Comment a (1981), and embraces such a condition upon performance. The Uniform Commercial Code, for example, defines agreement as "the bargain of the parties in fact as found in their language or by implication from other circumstances. . . ." U.C.C. § 1-201(3), 1 U.L.A. 44 (1976). Quite obviously, the parties' bargain cannot be reflected without including the conditions upon their performance, one of the two principal elements of which contracts are constructed. Cf. E. Farnsworth, Contracts § 8.2, p. 537 (1982) ("[P]romises, which impose duties, and conditions, which make duties conditional, are the main components of agreements"). It seems to us that this common meaning of the word "agreement" must be assigned to its usage in § 1823(e) if that section is to fulfill its intended purposes.One purpose of § 1823(e) is to allow federal and state bank examiners to rely on a bank's records in evaluating the worth of the bank's assets. Such evaluations are necessary when a bank is examined for fiscal soundness by state or federal authorities, see 12 U.S.C. §§ 1817(a)(2), 1820(b), and when the FDIC is deciding whether to liquidate a failed bank, see § 1821(d), or to provide financing for purchase of its assets (and assumption of its liabilities) by another bank, see §§ 1823(c)(2), (c)(4)(A). The last kind of evaluation, in particular, must be made"with great speed, usually overnight, in order to preserve the going concern value of the failed bank and avoid an interruption in banking services."Gunter v. Hutcheson, 674 F.2d at 865. Neither the FDIC nor Page 484 U. S. 92 state banking authorities would be able to make reliable evaluations if bank records contained seemingly unqualified notes that are in fact subject to undisclosed conditions.A second purpose of § 1823(e) is implicit in its requirement that the "agreement" not merely be on file in the bank's records at the time of an examination, but also have been executed and become a bank record "contemporaneously" with the making of the note, and have been approved by officially recorded action of the bank's board or loan committee. These latter requirements ensure mature consideration of unusual loan transactions by senior bank officials, and prevent fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure. Neither purpose can be adequately fulfilled if an element of a loan agreement so fundamental as a condition upon the obligation to repay is excluded from the meaning of "agreement."That "agreement" in § 1823(e) covers more than promises to perform acts in the future is confirmed by examination of the leading case in this area prior to enactment of § 1823(e) in 1950. In D'Oench, Duhme & Co. v. FDIC, 315 U. S. 447 (1942), the FDIC acquired a note in a purchase and assumption transaction. The maker asserted a defense of failure of consideration (that is, the failure to perform a promise that was a condition precedent to the maker's performance), based on an undisclosed agreement between it and the failed bank that the note would not be called for payment. The Court held that this "secret agreement" could not be a defense to suit by the FDIC, because it would tend to deceive the banking authorities. Id. at 315 U. S. 460. The Court stated that, when the maker "lent himself to a scheme or arrangement whereby the banking authority . . . was likely to be misled," that scheme or arrangement could not be the basis for a defense against the FDIC. Ibid. (emphasis added). We can safely assume that Congress did not mean "agreement" in § 1823(e) to be interpreted so much more narrowly than its Page 484 U. S. 93 permissible meaning as to disserve the principle of the leading case applying that term to FDIC-acquired notes. Certainly, one who signs a facially unqualified note subject to an unwritten and unrecorded condition upon its repayment has lent himself to a scheme or arrangement that is likely to mislead the banking authorities, whether the condition consists of performance of a counterpromise (as in D'Oench., Duhme) or of the truthfulness of a warranted fact.BPetitioners' fallback position is that, even if a misrepresentation concerning an existing fact can sometimes constitute an agreement covered by § 1823(e), it at least does not do so when the misrepresentation was fraudulent and the FDIC had knowledge of the asserted defense at the time it acquired the note. We conclude, however, that neither fraud in the inducement nor knowledge by the FDIC is relevant to the section's application.No conceivable reading of the word "agreement" in § 1823(e) could cause it to cover a representation or warranty that is bona fide, but to exclude one that is fraudulent. Petitioners effectively acknowledge this when they concede that the fraudulent nature of a promise would not cause it to lose its status as an "agreement." See supra at 484 U. S. 89, n. 1. The presence of fraud could be relevant, however, to another requirement of § 1823(e), namely, the requirement that the agreement in question "ten[d] to diminish or defeat the right, title or interest" of the FDIC in the asset.Respondent conceded at oral argument that the real defense of fraud in the factum -- that is, the sort of fraud that procures a party's signature to an instrument without knowledge of its true nature or contents, see U.C.C. § 3-305(2)(c), Comment 7, 2 U.L.A. 241 (1977) -- would take the instrument out of § 1823(e), because it would render the instrument entirely void, see Restatement (Second) of Contracts § 163 and Comments a, c; Farnsworth § 4.10, at 235, thus leaving Page 484 U. S. 94 no "right, title or interest" that could be "diminish[ed] or defeat[ed]." See Tr. of Oral Arg. 24-25, 27-30. Petitioners have never contended, however, nor could they have successfully, that the alleged misrepresentations about acreage or mineral interests constituted fraud in the factum. It is clear that they would constitute only fraud in the inducement, which renders the note voidable but not void. See U.C.C. § 3-201(1), 2 U.L.A. 127; Restatement (Second) of Contracts § 163, Comment c; Farnsworth § 4.10, at 235-236. The bank therefore had and could transfer to the FDIC voidable title, which is enough to constitute "title or interest" in the note. This conclusion is not only textually compelled, but produces the only result in accord with the purposes of the statute. If voidable title were not an "interest" under § 1823(e), the FDIC would be subject not only to undisclosed fraud defenses, but also to a wide range of other undisclosed defenses that make a contract voidable, such as certain kinds of mistakes and innocent but material misrepresentations. See Restatement (Second) of Contracts §§ 152-153, 164.Finally, knowledge of the misrepresentation by the FDIC prior to its acquisition of the note is not relevant to whether § 1823(e) applies. Nothing in the text would support the suggestion that it is: an agreement is an agreement whether or not the FDIC knows of it, and a voidable interest is transferable whether or not the transferee knows of the misrepresentation or fraud that produces the voidability. See Farnsworth § 11.8, at 780-781; cf. U.C.C. § 3-201(1), 2 U.L.A. 127. Petitioners are really urging us to engraft an equitable exception upon the plain terms of the statute. Even if we had the power to do so, the equities petitioners invoke are not the equities the statute regards as predominant. While the borrower who has relied upon an erroneous or even fraudulent unrecorded representation has some claim to consideration, so do those who are harmed by his failure to protect himself by assuring that his agreement is approved and recorded in accordance with the statute. Harm to the Page 484 U. S. 95 FDIC (and those who rely upon the solvency of its fund) is not avoided by knowledge at the time of acquiring the note. The FDIC is an insurer of the bank, and is liable for the depositors' insured losses whether or not it decides to acquire the note. Cf. 12 U.S.C. § 1821(f). The harm to the FDIC caused by the failure to record occurs no later than the time at which it conducts its first bank examination that is unable to detect the unrecorded agreement and to prompt the invocation of available protective measures, including termination of the bank's deposit insurance. See § 1818 (1982 ed. and Supp. IV). Thus, insofar as the recording provision is concerned, the state of the FDIC's knowledge at that time is what is crucial. But as we discussed earlier, see supra, at 484 U. S. 92, § 1823(e) is meant to ensure more than just the FDIC's ability to rely on bank records at the time of an examination or acquisition. The statutory requirements that an agreement be approved by the bank's board or loan committee and filed contemporaneously in the bank's records assure prudent consideration of the loan before it is made, and protect against collusive reconstruction of loan terms by bank officials and borrowers (whose interests may well coincide when a bank is about to fail). Knowledge by the FDIC could substitute for the latter protection only if it existed at the very moment the agreement was concluded, and could substitute for the former assurance not at all.The short of the matter is that Congress opted for the certainty of the requirements set forth in § 1823(e). An agreement that meets them prevails even if the FDIC did not know of it; and an agreement that does not meet them fails even if the FDIC knew. It would be rewriting the statute to hold otherwise. Such a categorical recording scheme is, of course, not unusual. Under Article 9 of the U.C.C., for example, a filing secured creditor prevails even over those unrecorded security interests of which he was aware. See, e.g., Rockwell Int'l Credit Corp. v. Valley Bank, 109 Idaho 406, 408-409, 707 P.2d 517, 519-520 (Ct.App.1985); Bloom Page 484 U. S. 96 v. Hilty, 427 Pa. 463, 471, 234 A.2d 860, 863-864 (1967); 9 R. Anderson, Uniform Commercial Code § 9-312:74, p. 298 (3d ed.1985); J. White & R. Summers, Uniform Commercial Code § 25-4, p. 1037 (2d ed.1980)."* * * *" A condition to payment of a note, including the truth of an express warranty, is part of the "agreement" to which the writing, approval, and filing requirements of 12 U.S.C. § 1823(e) attach. Because the representations alleged by petitioners constitute such a condition, and did not meet the requirements of the statute, they cannot be asserted as defenses here. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtLangley v. FDIC, 484 U.S. 86 (1987)Langley v. Federal Deposit Insurance CorporationNo. 86-489Argued October 14, 1987Decided December 1, 1987487 U.S. 86SyllabusTo finance the purchase of land in Louisiana, petitioners borrowed money from a bank insured by the Federal Deposit Insurance Corporation (FDIC) and, in consideration for the loan, executed a note, a collateral mortgage, and personal guarantees. When petitioners failed to pay an installment due on a renewal of the note, the bank filed suit for principal and interest in a Louisiana court, which suit was removed on diversity grounds to Federal District Court. Petitioners alleged, as a defense against the bank's claim, that the land purchase and their note had been procured by the bank's misrepresentations overstating the amount of land and mineral acres in the tract, and falsely stating that there were no outstanding mineral leases on the property. No references to the alleged representations appeared in the documents executed by petitioners, in the bank's records, or in the minutes of the bank's board of directors or loan committee. While the suit was pending, a Louisiana official closed the bank because of its unsound condition, and appointed the FDIC as receiver. The FDIC ultimately acquired petitioners' note, and was substituted as a plaintiff in this lawsuit. The District Court granted summary judgment for the FDIC, and the Court of Appeals affirmed, holding that the word "agreement" in a provision of the Federal Deposit Insurance Act of 1950, 12 U.S.C. § 1823(e), encompassed the kinds of material terms or warranties asserted by petitioners in their misrepresentation defense and, because § 1823(e)'s requirements were not met, the defense was barred. Section 1823(e) provides that no "agreement" tending to diminish or defeat the FDIC's "right, title or interest" in any asset acquired by the FDIC under the section shall be valid against the FDIC unless it shall have been (1) in writing, (2) executed contemporaneously with the bank's acquisition of the asset, (3) approved by the bank's board of directors or loan committee and reflected in the minutes of the board or committee, and (4) continuously, from the time of its execution, an official record of the bank.Held: A condition to payment of a note, including the truth of an express warranty, is part of the "agreement" to which the requirements of § 1823(e) attach. Because the representations alleged by petitioners Page 484 U. S. 87 constituted such a condition and did not meet the statute's requirements, they cannot be asserted as a defense here. Pp. 484 U. S. 90-96.(a) The word "agreement" in § 1823(e) is not limited to an express promise to perform an act in the future. The essence of petitioners' defense is that the bank made certain warranties regarding the land, the truth of which was a condition to performance of their obligation to repay the loan. As used in commercial and contract law, the term "agreement" often has a wider meaning than a promise, and embraces such a condition upon performance. This common meaning of the word "agreement" must be assigned to its usage in § 1823(e) if that section is to fulfill its intended purposes of allowing federal and state bank examiners to rely on a bank's records in evaluating the bank's assets, ensuring mature consideration of unusual loan transactions by senior bank officials, and preventing fraudulent insertion of new terms, with the collusion of bank employees, when a bank appears headed for failure. Cf. D'Oench, Duhme & Co. v. FDIC, 315 U. S. 447. Pp. 484 U. S. 90-93.(b) There is no merit to petitioners' argument that, even if a misrepresentation concerning an existing fact can sometimes constitute an agreement covered by § 1823(e), it at least does not do so when the misrepresentation was fraudulent and the FDIC had knowledge of the asserted defense when it acquired the note. Neither fraud in the inducement nor the FDIC's knowledge thereof is relevant to the section's application. No conceivable reading of the word "agreement" in § 1823(e) could cause it to cover a representation or warranty that is bona fide, but to exclude one that is fraudulent. The bank's alleged misrepresentations here did not constitute fraud in the factum, which would render the note void and take it out of § 1823(e), but instead constituted only fraud in the inducement, which rendered the note voidable, but not void. The bank therefore had and could transfer to the FDIC voidable title, which was enough to constitute "title or interest" in the note for the purpose of § 1823(e). Even if this Court had the power to engraft an equitable exception upon the statute's plain terms, the equities petitioners invoke are not the equities the statute regards as predominant. Pp. 484 U. S. 93-96.792 F.2d 541, affirmed.SCALIA, J., delivered the opinion for a unanimous Court. Page 484 U. S. 88

1968_643

MR. JUSTICE MARSHALL delivered the opinion of the Court.Petitioner was convicted in an Oregon state court of second-degree murder in connection with the September 22, 1964, slaying of one Russell Anton Marleau. After the Supreme Court of Oregon had affirmed his conviction, 245 Ore. 4, 418 P.2d 841 (1966), petitioner filed a petition for a writ of habeas corpus in the United States District Court for the District of Oregon. The District Court granted the writ, but the Court of Appeals for the Ninth Circuit reversed, 388 F.2d 777 (1968). We Page 394 U. S. 733 granted certiorari to consider three contentions of error raised by petitioner. 393 U. S. 821 (1968). Although petitioner's case has been ably briefed and argued by appointed counsel, we find none of these allegations sufficient to warrant reversal.IPetitioner's first argument centers on certain allegedly prejudicial remarks made during the prosecutor's opening statement. Petitioner had been indicted jointly with his cousin, Jerry Lee Rawls, who pleaded guilty to the same offense. Prior to petitioner's trial, petitioner's defense counsel told the prosecutor that Rawls would invoke his privilege against self-incrimination if he were called to the stand; defense counsel warned the prosecutor not to rely in his opening statement upon Rawls' expected testimony. The prosecutor replied that he would act on the basis of "all of the information I have concerning [Rawls'] testimony." Before trial, he consulted with a police officer who had spoken to Rawls and with Rawls' probation officer; each indicated his belief that Rawls would testify. Similar information came, through a sheriff's report, from some of Rawls' close relatives. Because of these reports, the prosecutor concluded that Rawls would testify if asked to do so. The court below felt that the prosecutor also relied on the fact that Rawls had pleaded guilty and was awaiting sentence. This would give him reason, the court felt, to cooperate with the prosecutor.In any case, after the trial began, the prosecutor included in his opening statement a summary of the testimony he expected to receive from Rawls. The summary was not emphasized in any particular way; it took only a few minutes to recite, and was sandwiched between a summary of petitioner's own confession and a description of the circumstantial evidence the State would introduce. Page 394 U. S. 734 At one point, the prosecutor referred to a paper he was holding in his hands to refresh his memory about something Rawls had said. Although the State admitted in argument here that the jury might fairly have believed that the prosecutor was referring to Rawls' statement, he did not explicitly tell the jury that this paper was Rawls' confession, nor did he purport to read directly from it. A motion for a mistrial was made at the close of the opening statement, but it was denied. Later, the prosecutor called Rawls to the stand. Rawls informed the court that he intended to assert his privilege against self-incrimination in regard to every question concerning his activities on the morning of September 22, 1964. The matter was not further pursued, and Rawls was dismissed from the stand. His appearance could not have lasted more than two or three minutes. The motion for mistrial was renewed and once again denied.Petitioner argues that this series of events placed the substance of Rawls' statement before the jury in a way that "may well have been the equivalent in the jury's mind of testimony," Douglas v. Alabama, 380 U. S. 415, 380 U. S. 419 (1965), and that, as in Bruton v. United States, 391 U. S. 123, 391 U. S. 128 (1968), the statement "added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination. . . ." In this way, petitioner claims he was denied his constitutional right of confrontation, guaranteed by the Sixth and Fourteenth Amendments to the Constitution. See Pointer v. Texas, 380 U. S. 400 (1965). Although the judge did caution the jurors that they "must not regard any statement made by counsel in your presence during the proceedings concerning the facts of this case as evidence," petitioner contends that Bruton v. United States, supra, disposes of the contention that limiting instructions of this sort can be relied upon to cure the error which occurred. Although the question thus posed is not an Page 394 U. S. 735 easy one, we cannot agree with petitioner's conclusion. First of all, it is clear that this case is quite different from either Douglas or Bruton. In Douglas, the prosecutor called the defendant's coconspirator to the stand and read his alleged confession to him; the coconspirator was required to assert his privilege against self-incrimination repeatedly as the prosecutor asked him to confirm or deny each statement. The Court found that this procedure placed powerfully incriminating evidence before the jury in a manner which effectively denied the right of cross-examination. Here, Rawls was on the stand for a very short time and only a paraphrase of the statement was placed before the jury. This was done not during the trial, while the person making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening statement should not be considered as evidence. Certainly the impact of the procedure used here was much less damaging than was the case in Douglas. And unlike the situation in Bruton, the jury was not being asked to perform the mental gymnastics of considering an incriminating statement against only one of two defendants in a joint trial. Moreover, unlike the situation in either Douglas or Bruton, Rawls' statement was not a vitally important part of the prosecution's case.We believe that, in these circumstances the limiting instructions given were sufficient to protect petitioner's constitutional rights. * As the Court said in Bruton, 391 U.S. at 391 U. S. 135,"Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently."See Hopt v. Utah, 120 Page 394 U. S. 736 U.S. 430, 120 U. S. 438 (1887). It may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable. But here we have no more than an objective summary of evidence which the prosecutor reasonably expected to produce. Many things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance. Certainly not every variance between the advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given. Even if it is unreasonable to assume that a jury can disregard a coconspirator's statement when introduced against one of two joint defendants, it does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial. At least where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecution's case,"it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately."United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 310 U. S. 239 (1940).The Court of Appeals seemed to feel that this aspect of the case turned on whether or not the prosecutor acted "in a good faith expectation that Rawls would testify." 388 F.2d at 780-781. While we do not believe that the prosecutor's good faith, or lack of it, is controlling in determining whether a defendant has been deprived of the right of confrontation guaranteed by the Sixth and Fourteenth Amendments, we agree with the Court of Appeals' factual determination in this case. The evidence presented in the record is sufficient to support the Oregon Supreme Court's conclusion that "the state could reasonably expect [Rawls] to testify in line with his Page 394 U. S. 737 previous statements." 245 Ore. at 9, 418 P.2d at 843. Accordingly, there is no need to decide whether the type of prosecutorial misconduct alleged to have occurred would have been sufficient to constitute reversible constitutional error. Cf. Miller v. Pate, 386 U. S. 1 (1967). Therefore, because we find neither prosecutorial misconduct nor a deprivation of the right of confrontation, we agree with the Court of Appeals that nothing which occurred during the prosecution's opening statement would warrant federal habeas relief.IIPetitioner's second argument concerns the admission into evidence of his own confession. The circumstances under which the confession was obtained can be summarized briefly. Petitioner was arrested about 4:15 p.m. on September 24, 1964. He was taken to headquarters, where questioning began at about 5 p.m. The interrogation, which was tape-recorded, ended slightly more than an hour later, and by 6:45 p.m. petitioner had signed a written version of his confession.After the questioning had begun and after a few routine facts were ascertained, petitioner was questioned briefly about the location of his Marine uniform. He was not asked where he was on the night in question. Although he admitted that he was with his cousin Rawls, he denied being with any third person. Then petitioner was given a somewhat abbreviated description of his constitutional rights. He was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Questioning thereafter became somewhat more vigorous, but petitioner continued to deny being with anyone but Rawls. At this point, the officer questioning petitioner told him, falsely, that Rawls had been brought in and that he had confessed. Petitioner still was reluctant to talk, but Page 394 U. S. 738 after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story. Shortly after he began, he again showed signs of reluctance, and said, "I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now." The officer replied simply, "You can't be in any more trouble than you are in now," and the questioning session proceeded. A full confession was obtained and, after further warnings, a written version was signed.Since petitioner was tried after this Court's decision in Escobedo v. Illinois, 378 U. S. 478 (1964), but before the decision in Miranda v. Arizona, 384 U. S. 436 (1966), only the rule of the former case is directly applicable. Johnson v. New Jersey, 384 U. S. 719 (1966). Petitioner argues that his statement about getting a lawyer was sufficient to bring Escobedo into play, and that the police should immediately have stopped the questioning and obtained counsel for him. We might agree were Miranda applicable to this case, for, in Miranda, this Court held that,"[i]f . . . [a suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning."384 U.S. at 384 U. S. 444-445. But Miranda does not apply to this case. This Court, in Johnson v. New Jersey, pointedly rejected the contention that the specific commands of Miranda should apply to all post-Escobedo cases. The Court recognized "[t]he disagreements among other courts concerning the implications of Escobedo," Johnson v. New Jersey, supra, at 384 U. S. 734, and concluded that the States, although free to apply Miranda to post-Escobedo cases, id. at 384 U. S. 733, were not required to do so. The Oregon Supreme Court, in affirming petitioner's conviction, concluded that the confession was properly introduced into evidence. Under Johnson, we would be Page 394 U. S. 739 free to disagree with this conclusion only if we felt compelled to do so by the specific holding of Escobedo.We do not believe that Escobedo covers this case. Petitioner's statement about seeing an attorney was neither as clear nor as unambiguous as the request Escobedo made. The police in Escobedo were unmistakably informed of their suspect's wishes; in fact, Escobedo's attorney was present and repeatedly requested permission to see his client. Here, on the other hand, it is possible that the questioning officer took petitioner's remark not as a request that the interrogation cease, but merely as a passing comment. Petitioner did not pursue the matter, but continued answering questions. In this context, we cannot find the denial of the right to counsel which was found so crucial in Escobedo.Petitioner also presses the alternative argument that his confession was involuntary, and that it should have been excluded for that reason. The trial judge, after an evidentiary hearing during which the tape recording was played, could not agree with this contention, and our reading of the record does not lead us to a contrary conclusion. Before petitioner made any incriminating statements, he received partial warnings of his constitutional rights; this is, of course, a circumstance quite relevant to a finding of voluntariness. Davis v. North Carolina, 384 U. S. 737, 384 U. S. 740-741 (1966). The questioning was of short duration, and petitioner was a mature individual of normal intelligence. The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the "totality of the circumstances," see, e.g., Clewis v. Texas, 386 U. S. 707, 386 U. S. 708 (1967), and, on the facts of this case, we can find no error in the admission of petitioner's confession. Page 394 U. S. 740IIIPetitioner's final contention can be dismissed rather quickly. He argues that the trial judge erred in permitting some clothing seized from petitioner's duffel bag to be introduced into evidence. This duffel bag was being used jointly by petitioner and his cousin Rawls, and it had been left in Rawls' home. The police, while arresting Rawls, asked him if they could have his clothing. They were directed to the duffel bag, and both Rawls and his mother consented to its search. During this search, the officers came upon petitioner's clothing, and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court's past decisions, they were clearly permitted to seize it. Harris v. United States, 390 U. S. 234 (1968); Warden v. Hayden, 387 U. S. 294 (1967). Petitioner argues that Rawls only had actual permission to use one compartment of the bag, and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls' consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this case.Because we find none of petitioner's contentions meritorious, we affirm the judgment of the Court of Appeals.Affirmed

U.S. Supreme CourtFrazier v. Cupp, 394 U.S. 731 (1969)Frazier v. CuppNo. 643Argued February 26, 1969Decided April 22, 1969394 U.S. 731SyllabusPetitioner in this habeas corpus proceeding claims that his constitutional rights were violated in three respects in his trial in 1965 for murder for which he had been indicted jointly with one Rawls, who pleaded guilty. (1) The prosecutor, on the basis of previous information he had received that Rawls would testify, included in his opening statement a brief summary of Rawls' expected testimony. When Rawls was called to the stand, he claimed his privilege against self-incrimination, and was dismissed. Petitioner's motions for a mistrial were overruled. The trial court instructed the jury that the opening statements of counsel should not be considered as evidence. (2) After preliminary questioning shortly after his arrest, petitioner was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Thereafter the interrogating officer falsely told petitioner, who was reluctant to talk, that Rawls had confessed. Petitioner later began to spill his story, but again showed signs of reluctance and said he thought he better get a lawyer before he talked any more. Following the officer's reply that petitioner could not be in any more trouble than he was in, petitioner fully confessed and, after further warnings, signed a written confession, which was later admitted into evidence over petitioner's objection. (3) Also admitted into evidence was some clothing which officers had seized from petitioner's duffel hag which he and Rawls had used jointly and which the officers had found during a search conducted with Rawls' consent. Petitioner was convicted, and the State Supreme Court affirmed. Petitioner thereafter filed a petition for a writ of habeas corpus in the District Court, which granted the writ. The Court of Appeals reversed. Petitioner claims that the prosecutor's use of the summarized Rawls statement denied him his constitutional rights of confrontation as guaranteed by the Sixth and Fourteenth Amendments; that his confession contravened the principles established by Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966), and was involuntary, and that the clothing had been illegally seized in violation of the Fourth and Fourteenth Amendments.Held: Page 394 U. S. 7321. On the facts here, where the evidence which the prosecutor reasonably expected to produce was objectively and briefly summarized and was not touted to the jury as crucial to the prosecution's case, the court's limiting instructions were sufficient to protect petitioner's constitutional rights. Douglas v. Alabama, 380 U. S. 415 (1965), and Bruton v. United States, 391 U. S. 123 (1968), distinguished. Pp. 394 U. S. 734-737.2. In the context of this case, where it is possible that the questioning officer took petitioner's remark about seeing an attorney not as a request that the interrogation cease but as a passing comment, there was no denial of the right to counsel such as existed in Escobedo, and Miranda, which was decided after petitioner's trial, is inapplicable under Johnson v. New Jersey, 384 U. S. 719 (1966). Pp. 394 U. S. 738-739.3. On the facts of this case and in view of the "totality of the circumstances," the trial court did not err in holding that petitioner's confession was voluntary. P. 394 U. S. 739.4. The clothing from petitioner's duffel bag was found in the course of a lawful search since Rawls, a joint user of the bag, had authority to consent to its search. P. 394 U. S. 740.388 F.2d 777, affirmed.

1974_73-1892

MR. JUSTICE BRENNAN delivered the opinion of the Court.Social Security Act benefits based on the earnings of a deceased husband and father covered by the Act are payable, with some limitations, both to the widow and to the couple's minor children in her care. § 202(g) of the Social Security Act, as amended, 42 U.S.C. § 402(g), [Footnote 1] Such benefits are payable on the basis of the Page 420 U. S. 638 earnings of a deceased wife and mother covered by the Act, however, only to the minor children, and not to the widower. The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment. [Footnote 2]A three-judge District Court for the District of New Jersey held that the different treatment of men and women mandated by § 402(g) unjustifiably discriminated against female wage earners by affording them less protection for their survivors than is provided to male employees. Page 420 U. S. 639 367 F. Supp. 981, 991 (1973). We noted probable jurisdiction, 419 U.S. 822 (1974). We affirm.IAppellee Stephen C. Wiesenfeld and Paula Polatschek were married on November 16, 1970. Paula, who worked as a teacher for five years before her marriage, continued teaching after her marriage. Each year she worked, maximum social security contributions were deducted from her salary. [Footnote 3] Paula's earnings were the couple's principal source of support during the marriage, being substantially larger than those of appellee. [Footnote 4]On June 5, 1972, Paula died in childbirth. Appellee was left with the sole responsibility for the care of their infant son, Jason Paul. Shortly after his wife's death, Stephen Wiesenfeld applied at the Social Security office in New Brunswick, N.J., for social security survivors' benefits for himself and his son. He did obtain benefits for his son under 42 U.S.C. § 402(d) (1970 ed. and Supp. III), [Footnote 5] and received for Jason $206.90 per month Page 420 U. S. 640 until September 1972, and $248.30 per month thereafter. However, appellee was told that he was not eligible for benefits for himself, because § 402(g) benefits were available only to women. [Footnote 6] If he had been a woman, he would Page 420 U. S. 641 have received the same amount as his son as long as he was not working, see 42 U.S.C. §§ 402(d)(2) and (g)(2), and, if working, that amount reduced by $1 for every $2 earned annually above $2,400. 42 U.S.C. §§ 403(b) and (f). [Footnote 7]Appellee filed this suit in February, 1973, [Footnote 8] claiming jurisdiction under 28 U.S.C. § 1331, on behalf of himself and of all widowers similarly situated. [Footnote 9] He sought a declaration that § 402(g) is unconstitutional to the extent that men and women are treated differently, an injunction Page 420 U. S. 642 restraining appellant from denying benefits under § 402(g) solely on the basis of sex, and payment of past benefits commencing with June, 1972, the month of the original application. Cross-motions for summary judgment were filed. After the three-judge court determined that it had jurisdiction, [Footnote 10] it granted summary judgment in favor of appellee, and issued an order giving appellee the relief he sought.IIThe gender-baed distinction made by § 402(g) is indistinguishable from that invalidated in Frontiero v. Page 420 U. S. 643 Richardson, 411 U. S. 677 (1973). Frontiero involved statutes which provided the wife of a male serviceman with dependents' benefits but not the husband of a servicewoman unless she proved that she supplied more than one-half of her husband's support. The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment. Schlesinger v. Ballard, 419 U. S. 498 (1975), explained:"In . . . Frontiero, the challenged [classification] based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution. . . . [T]he assumption . . . was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not."Id. at 419 U. S. 507. A virtually identical "archaic and overbroad" generalization, id. at 419 U. S. 508, "not . . . tolerated under the Constitution" underlies the distinction drawn by § 402(g), namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support. [Footnote 11]Section 402(g) was added to the Social Security Act in 1939 as one of a large number of amendments designed to "afford more adequate protection to the family as a unit." H.R.Rep. No. 728, 76th Cong., 1st Sess., 7 (1939). Monthly benefits were provided to wives, children, widows, orphans, and surviving dependent parents of covered workers. Ibid. However, children of covered female workers were eligible for survivors' benefits only in limited circumstances, see n 5, supra, and no benefits Page 420 U. S. 644 whatever were made available to husbands or widowers on the basis of their wives' covered employment. [Footnote 12]Underlying the 1939 scheme was the principle that,"[u]nder a social insurance plan, the primary purpose is to pay benefits in accordance with the probable needs of the beneficiaries, rather than to make payments to the estate of a deceased person regardless of whether or not he leaves dependents."H.R.Rep. No. 728, supra, at 7. (Emphasis supplied.) It was felt that"[t]he payment of these survivorship benefits and supplements for the wife of an annuitant are . . . in keeping with the principle of social insurance. . . ."Ibid. Thus, the framers of the Act legislated on the "then generally accepted presumption that a man is responsible for the support of his wife and children." D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973). [Footnote 13] Page 420 U. S. 645Obviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support. See Kahn v. Shevin, 416 U. S. 351, 416 U. S. 354 n. 7 (1974). But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.Section 402(g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. First, it was open to the servicewoman under the statutes invalidated in Frontiero to prove that her husband was, in fact, dependent upon her. Here, Stephen Wiesenfeld was not given the opportunity to show, as may well have been the case, that he was dependent upon his wife for his support, or that, had his wife lived, she would have remained at work while he took over care of the child. Second, in this case, social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others. Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency made in the statutes before us in Frontiero, the Constitution also forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men. Page 420 U. S. 646Appellant seeks to avoid this conclusion with two related arguments. First, he claims that, because social security benefits are not compensation for work done, Congress is not obliged to provide a covered female employee with the same benefits as it provides to a male. Second, he contends that § 402(g) was"reasonably designed to offset the adverse economic situation of women by providing a widow with financial assistance to supplement or substitute for her own efforts in the marketplace,"Brief for Appellant 14, and therefore does not contravene the equal protection guarantee.AAppellant relies for the first proposition primarily on Flemming v. Nestor, 363 U. S. 603 (1960). We held in Flemming that the interest of a covered employee in future social security benefits is "noncontractual," because"each worker's benefits, though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation."Id. at 363 U. S. 609-610. Appellant apparently contends that, since benefits derived from the social security program do not correlate necessarily with contributions made to the program, a covered employee has no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment.We do not see how the fact that social security benefits are "noncontractual" can sanction differential protection for covered employees which is solely gender based. From the outset, social security old age, survivors' and disability (OASDI) benefits have been "afforded as a matter of right, related to past participation in the productive Page 420 U. S. 647 processes of the country." Final Report of the Advisory Council on Social Security 17 (1938). It is true that social security benefits are not necessarily related directly to tax contributions, since the OASDI system is structured to provide benefits in part according to presumed need. [Footnote 14] For this reason, Flemming held that the position of a covered employee "cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments." 363 U.S. at 363 U. S. 610. But the fact remains that the statutory right to benefits is directly related to years worked and amount earned by a covered employee, [Footnote 15] and not to the need of the beneficiaries directly. Since OASDI benefits do depend significantly upon the participation in the workforce of a covered employee, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex. Page 420 U. S. 648BAppellant seeks to characterize the classification here as one reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families. The Court held in Kahn v. Shevin, 416 U.S. at 416 U. S. 355, that a statute"reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden"can survive an equal protection attack. See also Schlesinger v. Ballard, 419 U. S. 498 (1975). But the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme. [Footnote 16] Here, it is apparent both from the statutory scheme itself and from the legislative history of § 402(g) that Congress' purpose in providing benefits to young widows with children was not to provide an income to women who were, because of economic discrimination, unable to provide for themselves. Rather, § 402(g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. Since this purpose in no way is premised upon any special disadvantages of women, it cannot serve to justify a gender-based distinction which diminishes the protection afforded to women who do work.That the purpose behind § 402(g) is to provide children Page 420 U. S. 649 deprived of one parent with the opportunity for the personal attention of the other could not be more clear in the legislative history. The Advisory Council on Social Security, which developed the 1939 amendments, said explicitly that"[s]uch payments [under § 402(g)] are intended as supplements to the orphans' benefits with the purpose of enabling the widow to remain at home and care for the children."Final Report of the Advisory Council on Social Security 31 (1938). (Emphasis supplied.) In 1971, a new Advisory Council, considering amendments to eliminate the various gender-based distinctions in the OASDI structure, reiterated this understanding:"Present law provides benefits for the mother of young . . . children . . . if she chooses to stay home and care for the children instead of working. In the Council's judgment, it is desirable to allow a woman who is left with the care of the children the choice of whether to stay at home to care for the children or to work."1971 Advisory Council on Social Security, Reports on the Old Age, Survivors, and Disability Insurance and Medicare Programs 30 (hereinafter 1971 Reports). (Emphasis supplied.)Indeed, consideration was given in 1939 to extending benefits to all widows, regardless of whether or not there were minor children. The proposal was rejected, apparently because it was felt that young widows without children can be expected to work, while middle-aged widows "are likely to have more savings than younger widows, and many of them have children who are grown and able to help them." Report of the Social Security Board, H.R.Doc. No. 110, 76th Cong., 1st Sess., 7-8 (1939). See also Final Report of the Advisory Council on Social Security 31 (1938); Hearings on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 61, 1217, 2169-2170; H.R.Rep. No. 728, 76th Cong., 1st Sess., 36-37 Page 420 U. S. 650 (1939). Thus, Congress decided not to provide benefits to all widows, even though it was recognized that some of them would have serious problems in the job market. Instead, it provided benefits only to those women who had responsibility for minor children, because it believed that they should not be required to work.The whole structure of survivors' benefits conforms to this articulated purpose. Widows without minor children obtain no benefits on the basis of their husband's earnings until they reach age 60 or, in certain instances of disability, age 50. 42 U.S.C. §§ 402(e)(1) and (5). Further, benefits under § 402(g) cease when all children of a beneficiary are no longer eligible for children's benefits. [Footnote 17] If Congress were concerned with providing women with benefits because of economic discrimination, it would be entirely irrational to except those women who had spent many years at home rearing children, since those women are most likely to be without the skills required to succeed in the job market. See Walker, Sex Discrimination in Government Benefit Programs, 23 Hastings L.J. 277, 27279 (1971); Hearings, supra, at 61 (remarks of Dr. Altemeyer, Chairman, Social Security Board); Report of the Committee on Social Insurance and Taxes, The President's Commission on the Status of Women 31-32 (1963). Similarly, the Act now provides benefits to a surviving Page 420 U. S. 651 divorced wife who is the parent of a covered employee's child, regardless of how long she was married to the deceased or of whether she or the child was dependent upon the employee for support. §§ 402(g), 416(d)(3). Yet a divorced wife who is not the mother of a child entitled to children's benefits is eligible for benefits only if she meets other eligibility requirements and was married to the covered employee for 20 years. §§ 402(b) and (e), 416(d). [Footnote 18] Once again, this distinction among women is explicable only because Congress was not concerned in § 402(g) with the employment problems of women generally but with the principle that children of covered employees are entitled to the personal attention of the surviving parent if that parent chooses not to work.Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of § 402(g) is entirely irrational. The classification discriminates among surviving children solely on the basis of the sex of the surviving parent. Even in the typical family hypothesized by the Act, in which the husband is supporting the family and the mother is caring for the children, this result makes no sense. The fact Page 420 U. S. 652 that a man is working while there is a wife at home does not mean that he would, or should be required to, continue to work if his wife dies. It is no less important for a child to be cared for by its sole surviving parent when that parent is male, rather than female. And a father, no less than a mother, has a constitutionally protected right to the "companionship, care, custody, and management" of "the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection." Stanley v. Illinois, 405 U. S. 645, 405 U. S. 651 (1972). Further, to the extent that women who work when they have sole responsibility for children encounter special problems, it would seem that men with sole responsibility for children will encounter the same child care related problems. [Footnote 19] Stephen Wiesenfeld, for example, found that providing adequate care for his infant son impeded his ability to work, see n 7, supra.Finally, to the extent that Congress legislated on the presumption that women as a group would choose to forgo work to care for children while men would not, [Footnote 20] Page 420 U. S. 653 the statutory structure, independent of the gender-based classification, would deny or reduce benefits to those men who conform to the presumed norm and are not hampered by their child care responsibilities. Benefits under § 402(g) decrease with increased earnings, see supra at 420 U. S. 641. According to appellant, "the bulk of male workers would receive no benefits in any event," Brief for Appellant 17 n. 11, because they earn too much. Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are, in fact, similarly situated to the women the statute aids.Since the gender-based classification of § 402(g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, "[b]y providing dissimilar treatment for men and women who are . . . similarly situated, the challenged section violates the [Due Process] Clause." Reed v. Reed, 404 U. S. 71, 404 U. S. 77 (1971).Affirmed

U.S. Supreme CourtWeinberger v. Wiesenfeld, 420 U.S. 636 (1975)Weinberger v. WiesenfeldNo. 73-1892Argued January 20, 1975Decided March 19, 1975420 U.S. 636SyllabusThe gender-based distinction mandated by the provisions of the Social Security Act, 42 U.S.C. § 402(g), that grant survivors' benefits based on the earnings of a deceased husband and father covered by the Act both to his widow and to the couple's minor children in her care, but that grant benefits based on the earnings of a covered deceased wife and mother only to the minor children and not to the widower, violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment, since it unjustifiably discriminates against female wage earners required to pay social security taxes by affording them less protection for their survivors than is provided for male wage earners. Pp. 420 U. S. 642-653.(a) The distinction is based on an "archaic and overbroad" generalization not tolerated under the Constitution, namely, that male workers' earnings are vital to their families' support, while female workers' earnings do not significantly contribute to families' support. Frontiero v. Richardson, 411 U. S. 677. Pp. 420 U. S. 642-643.(b) That social security benefits are "noncontractual," and do not compensate for work performed or necessarily correlate with contributions to the program, cannot sanction the solely gender-based differential protection for covered employees. Since the benefits depend significantly upon a covered employee's participation in the workforce, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications that do not differentiate among covered employees solely on the basis of sex. Pp. 420 U. S. 646-647.(c) Since, as is apparent from the statutory scheme itself and from § 402(g)'s legislative history, § 402(g)'s purpose in providing benefits to young widows with children was not, as the Government contends, to provide an income to women who, because of economic discrimination, were unable to provide for themselves, but to permit women to elect not to work and to devote themselves to care of children (and thus was not premised upon Page 420 U. S. 637 any special disadvantage of women), it cannot serve to justify a gender-based distinction diminishing the protection afforded women who do work. Pp. 648-652.367 F. Supp. 981, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion in which BURGER, C.J., joined, post, p. 420 U. S. 654. REHNQUIST, J., filed an opinion concurring in the result, post, p. 420 U. S. 655. DOUGLAS, J., took no part in the consideration or decision of the case.

1976_75-1513

MR. JUSTICE BLACKMUN delivered the opinion of the Court.The issue in this case is whether Illinois has provided constitutionally adequate procedures for suspending or revoking the license of a driver who repeatedly has been convicted of traffic offenses. The statute and administrative regulations provide for an initial summary decision based on official records, with a full administrative hearing available only after the suspension or revocation has taken effect. Page 431 U. S. 107IThe case centers on § 206 of the Illinois Driver Licensing Law (c. 6 of the Illinois Vehicle Code). The section is entitled "Discretionary authority to suspend or revoke license or permit." It empowers the Secretary of State to act "without preliminary hearing upon a showing by his records or other sufficient evidence" that a driver's conduct falls into any one of 18 enumerated categories. Ill.Rev.Stat., c. 95 1/2, § 206(a) (1975). Pursuant to his rulemaking authority under this law, § 211(a), [Footnote 1] the Secretary has adopted administrative regulations that further define the bases and procedures for discretionary suspensions. These regulations generally provide for an initial summary determination based on the individual's driving record. [Footnote 2] The Secretary has established a comprehensive system of assigning "points" for various kinds of traffic offenses, depending on severity, to provide an objective means of evaluating driving records.One of the statutorily enumerated circumstances justifying Page 431 U. S. 108 license suspension or revocation is conviction of three moving traffic offenses within a 12-month period. § 206(a)(2). [Footnote 3] This is one of the instances where the Secretary, by regulation, has provided a method for determining the sanction according to the driver's accumulated "points." [Footnote 4]Another circumstance, specified in the statute, supporting suspension or revocation is where a licensee"[h]as been repeatedly involved as a driver in motor vehicle collisions or has been repeatedly convicted of Page 431 U. S. 109 offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway."§ 206(a)(3). Here again the Secretary has limited his broad statutory discretion by an administrative regulation. This regulation allows suspension or revocation, where sufficient points have been accumulated to warrant a second suspension within a 5-year period. [Footnote 5] The regulation concludes flatly: "A person who has been suspended thrice within a 10-year period shall be revoked."Section 6-206(c)(1) [Footnote 6] requires the Secretary "immediately" to provide written notice of a discretionary suspension or revocation under this statute, but no prior hearing is required. Within 20 days of his receiving a written request from the licensee, the Secretary must schedule a full evidentiary hearing Page 431 U. S. 110 for a date "as early as practical" in either Sangamon County or Cook County, as the licensee may specify. § 2118(a). The final decision of the Secretary after such hearing is subject to judicial review in the Illinois courts. § 2-118(e). In addition, a person whose license is suspended or revoked may obtain a restricted permit for commercial use or in case of hardship. §§ 6-206(c)(2) and (3). [Footnote 7]IIAppellee Love, a resident of Chicago, is employed as a truck driver. His license was suspended in November, 1969, under § 6-206(a)(2), for three convictions within a 12-month period. He was then convicted of a charge of driving while his license was suspended, and consequently another suspension was imposed in March, 1970, pursuant to § 6-303(b). Appellee received no further citation until August, 1974, when he was arrested twice for speeding. He was convicted of both charges and then received a third speeding citation in February, 1975. On March 27, he was notified by letter that he would lose his driving privileges if convicted of a third offense. On March 31 appellee was convicted of the third speeding charge. Page 431 U. S. 111On June 3, appellee received a notice that his license was revoked effective June 6. [Footnote 8] The stated authority for the revocation was § 6-206(a)(3); the explanation, following the language of the statute, was:"his action has been taken as a result of: your having been repeatedly convicted of offenses against laws and ordinances regulating the movement of traffic, to a degree which indicates disrespect for the traffic laws."App. 13.Appellee, then aged 25, made no request for an administrative hearing. Instead, he filed this purported class action [Footnote 9] on June 5 against the Illinois Secretary of State in the United States District Court for the Northern District of Illinois. His complaint sought a declaratory judgment that § 6-206(a)(3) was unconstitutional, an injunction against enforcement of the statute, and damages. Appellee's application for a temporary restraining order was granted on condition that he apply for a hardship driving permit. He applied for that permit on June 10, and it was issued on July 25.A three-judge District Court was convened to consider appellee's claim that the Illinois statute was unconstitutional. On cross-motions for summary judgment, the court held that a license cannot constitutionally be suspended or revoked under § 6-206(a)(3) until after a hearing is held to determine whether the licensee meets the statutory criteria of"lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws Page 431 U. S. 112 and the safety of other persons upon the highway."The court regarded such a prior hearing as mandated by this Court's decision in Bell v. Burson, 402 U. S. 535 (1971). Accordingly, the court granted judgment for appellee and enjoined the Secretary of State from enforcing § 6-206(a)(3). The Secretary appealed, and we noted probable jurisdiction sub nom. Howlett v. Love, 429 U.S. 813 (1976).IIIIt is clear that the Due Process Clause applies to the deprivation of a driver's license by the State:"Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases, the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment."Bell v. Burson, 402 U.S. at 402 U. S. 539.It is equally clear that a licensee in Illinois eventually can obtain all the safeguards procedural due process could be thought to require before a discretionary suspension or revocation becomes final. Appellee does not challenge the adequacy of the administrative hearing, noted above, available under § 2-118. The only question is one of timing. This case thus presents an issue similar to that considered only last Term in Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 333 (1976), namely,"the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter."We may analyze the present case, too, in terms of the factors considered in Eldridge:"[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and Page 431 U. S. 113 probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."Id. at 424 U. S. 335.The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in Eldridge, who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver's license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 264 (1970). The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. See n 7, supra. We therefore conclude that the nature of the private interest here is not so great as to require us"to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action."Mathews v. Eldridge, 424 U.S. at 424 U. S. 343. See Arnett v. Kennedy, 416 U. S. 134 (1974).Moreover, the risk of an erroneous deprivation in the absence of a prior hearing is not great. Under the Secretary's regulations, suspension and revocation decisions are largely automatic. Of course, there is the possibility of clerical error, but written objection will bring a matter of that kind to the Secretary's attention. In this case, appellee had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary's decision was based. Appellee has not challenged the validity of those convictions or the adequacy of his procedural rights at the time they were determined. Tr. of Oral Arg. 41, 47. Since appellee Page 431 U. S. 114 does not dispute the factual basis for the Secretary's decision, he is really asserting the right to appear in person only to argue that the Secretary should show leniency and depart from his own regulations. [Footnote 10] Such an appearance might make the licensee feel that he has received more personal attention, but it would not serve to protect any substantive rights. We conclude that requiring additional procedures would be unlikely to have significant value in reducing the number of erroneous deprivations.Finally, the substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Giving licensees the choice thus automatically to obtain a delay in the effectiveness of a suspension or revocation would encourage drivers routinely to request full administrative hearings. See Mathews v. Eldridge, 424 U.S. at 424 U. S. 347. Far more substantial than the administrative burden, however, is the important public interest in safety on the roads and highways, and in the prompt removal of a safety hazard. See Perez v. Campbell, 402 U. S. 637, 402 U. S. 657, 402 U. S. 671 (1971) (opinion concurring in part and dissenting in part). This factor fully distinguishes Bell v. Burson, supra, where the "only purpose" of the Georgia statute there under consideration was "to obtain security from which to pay any judgments against the licensee resulting from the accident." 402 U.S. at 402 U. S. 540. [Footnote 11] In contrast, the Illinois statute at Page 431 U. S. 115 issue in the instant case is designed to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of others.We conclude that the public interests present under the circumstances of this case are sufficiently visible and weighty for the State to make its summary initial decision effective without a predecision administrative hearing.The present case is a good illustration of the fact that procedural due process in the administrative setting does not always require application of the judicial model. When a governmental official is given the power to make discretionary decisions under a broad statutory standard, case-by-case decisionmaking may not be the best way to assure fairness. Here, the Secretary commendably sought to define the statutory standard narrowly by the use of his rulemaking authority. [Footnote 12] The decision to use objective rules in this case provides drivers with more precise notice of what conduct will be sanctioned and promotes equality of treatment among similarly situated drivers. The approach taken by the District Court would have the contrary result of reducing the fairness of the system, by requiring a necessarily subjective inquiry in each case as to a driver's "disrespect" or "lack of ability to exercise ordinary and reasonable care."The second count of appellee's complaint challenged § 6206(a)(3) on the grounds of vagueness and inadequacy of standards. The three-judge court did not reach the issue. Page 431 U. S. 116 App. 22. We regard the claim, in the light of Love's record, as frivolous.The judgment of the District Court is reversed.It is so ordered

U.S. Supreme CourtDixon v. Love, 431 U.S. 105 (1977)Dixon v. LoveNo. 75-1513Argued March 1-2, 1977Decided May 16, 1977431 U.S. 105SyllabusThe Illinois Driver Licensing Law authorizes the Secretary of State of Illinois to suspend or revoke a driver's license without preliminary hearing upon a showing by his records or other sufficient evidence that the driver's conduct falls into any of 18 enumerated categories, one of which is that the driver has been repeatedly convicted of offenses against traffic laws to a degree indicating"lack of ability to exercise ordinary and reasonable care in the safe operation of a motor vehicle or disrespect for the traffic laws and the safety of other persons upon the highway."(§ 6-206(a)(3)). Pursuant to this provision, the Secretary issued a regulation requiring revocation in the event a driver's license is otherwise suspended three times within a 10-year period. Under the statutory scheme the Secretary must provide immediate written notice of a discretionary suspension or revocation and, within 20 days of his receiving a written request from the licensee, must schedule a full evidentiary hearing for a date "as early as practical," and his final decision is subject to judicial review. After the license of appellee, a truck driver, became subject to suspension under another section of the statute, the Secretary ordered the license revoked under § 6-206(a)(3) and the corresponding rule. Without requesting an administrative hearing, appellee brought this action challenging the constitutionality of § 6-206(a)(3). A three-judge District Court, relying on Bell v. Burson, 402 U. S. 535, granted appellee relief on the ground that a license cannot constitutionally be revoked under the challenged statute until after a hearing is held to determine whether the licensee meets the statutory criteria.Held: The Illinois statute, as implemented by the Secretary's regulations, is constitutionally adequate under the Due Process Clause of the Fourteenth Amendment, as analyzed in Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 333. Pp. 431 U. S. 112-116.(a) The nature of the private interest involved here (the granted license to operate a motor vehicle) is not so great as to require a departure from "the ordinary principle . . . that something less than an evidentiary hearing is sufficient prior to adverse administrative action," Eldridge, supra at 424 U. S. 343, particularly in light of statutory provisions for Page 431 U. S. 106 hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. P. 431 U. S. 113.(b) The risk of an erroneous deprivation absent a prior hearing is not great and additional procedures would not significantly reduce the number of erroneous deprivations. Here the Secretary's regulations make suspension and revocation decisions largely automatic, and appellee is asserting the right to appear at a prerevocation hearing merely to argue for leniency. Pp. 431 U. S. 113-114.(c) The requirement of a pretermination hearing in every case would impede the public interests of administrative efficiency, as well as highway safety, which is promoted by the prompt removal of hazardous drivers. Bell v. Burson, supra, distinguished. Pp. 431 U. S. 114-115.Reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 431 U. S. 116. BRENNAN, J., filed an opinion concurring in the result, post, p. 431 U. S. 117. REHNQUIST, J., took no part in the consideration or decision of the case.

1964_365

MR. JUSTICE GOLDBERG delivered the opinion of the Court.Petitioner Sansone was indicted for willfully attempting to evade federal income taxes for the year 1957 in violation of § 7201 of the Internal Revenue Code of 1954. Section 7201 provides:"Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution."The following facts were established at trial. In March, 1956, petitioner and his wife purchased a tract of land for $22,500 and simultaneously sold a portion of the tract for $20,000. In August, 1957, petitioner sold another portion of the tract for $27,000. He did not report the gain on either the 1956 or 1957 sale in his income tax returns for those years. [Footnote 1] Petitioner conceded that the 1957 transaction was reportable and that, in not reporting it, he understated his tax liability for that year by $2,456.48. He contended, however, that this understatement was not willful, since he believed at the time that extensive repairs on a creek adjoining a portion of the tract he retained might be necessary, and that the cost of these repairs might wipe out his profit on the 1957 sale.To counter this defense, the Government introduced the following signed statement made by petitioner during the Treasury investigation of his tax return:"I did not report the 1957 sale in our joint income tax return for 1957 because I was burdened with a Page 380 U. S. 345 number of financial obligations, and did not feel I could raise the money to pay any tax due. It was my intention to report all sales in a future year and pay the tax due. I knew that I should have reported the 1957 sale, but my wife did not know that it should have been reported. It was not my intention to evade the payment of our proper taxes, and I intended to pay any additional taxes due when I was financially able to do so."At the conclusion of the trial, petitioner requested that the jury be instructed that it could acquit him of the charged offense of willfully attempting to evade or defeat taxes in violation of § 7201, but still convict him of either or both of the asserted lesser included offenses of willfully filing a fraudulent or false return, in violation of § 7207, [Footnote 2] or willfully failing to pay his taxes at the time required by law, in violation of § 7203. [Footnote 3] Section 7201 is a felony, providing for a maximum fine of $10,000 and imprisonment for five years. Both §§ 7203 and 7207 are misdemeanors, with maximum prison sentences of one year under each Page 380 U. S. 346 section, and maximum fines of $10,000 under § 7203 and $1,000 under § 7207.The requested instructions were denied. [Footnote 4] Petitioner was found guilty by the jury of violating § 7201, and was Page 380 U. S. 347 sentenced by the court to pay a fine of $2,000 and to serve 15 months' imprisonment. The conviction was upheld by the Court of Appeals. 334 F.2d 287. We granted certiorari to consider the applicability of the lesser included offense doctrine to these federal tax statutes. 379 U.S. 886.IWe are faced with the threshold question as to whether or not § 7207, which proscribes the willful filing with a Treasury official of any known false or fraudulent "return," applies to the filing of an income tax return. [Footnote 5] If § 7207 does not apply to income tax returns, it is obvious that the defendant was not here entitled to a lesser included offense charge based on that section.This Court held in Achilli v. United States, 353 U. S. 373, that § 7207's statutory predecessor, § 3616(a) of the Internal Revenue Code of 1939, which made it a misdemeanor for any person to deliver to the Collector of Revenue"any false or fraudulent list, return, account, or statement, with intent to defeat or evade the Page 380 U. S. 348 valuation, enumeration, or assessment intended to be made. . . ."(emphasis added), despite its broad language, was not intended by Congress to apply to income tax returns.There were two major bases of this Court's conclusion in Achilli that § 3616(a) did not apply to such returns. First, unlike other criminal provisions clearly applicable to income taxes which appeared in the income tax chapter of the 1939 Code and were specifically designed to punish evasion of that tax, § 3616(a) was placed among the Code's "General Administrative Provisions," and did not specifically refer to income taxes. Second, § 3616(a) required that the false or fraudulent return be filed "with intent to defeat or evade the valuation, enumeration, or assessment intended to be made." This provision, as the Court had already held in Berra v. United States, 351 U. S. 131, if applied to income tax returns, would have made § 3616(a) completely coextensive with the predecessor of § 7201 where the attempt to evade income taxes was accomplished by filing a fraudulent income tax return. It was clear that the predecessor of § 7201 applied to this method of attempting to evade income taxes, and the Court was unwilling to presume that Congress intended to enact both felony and misdemeanor provisions which completely overlap in this important area.Both of these bases of decision were removed by the 1954 Code. Unlike their predecessors in the 1939 Code, §§ 7201, 7203, and 7207, together with other sections clearly applicable to income tax violations, were all placed in the same section (Part I of Chapter 75) of the 1954 Code. Congress specifically stated that it placed all these provisions in the same part of the Code because it wished them to apply to taxes generally, including income taxes. See S.Rep.No.1622, 83d Cong., 2d Sess., 147; H.R.Rep. Page 380 U. S. 349 .No.1337, 83d Cong., 2d Sess., 108. In contrast, Part II of Chapter 75 contains provisions applicable only to specified taxes, none of which includes income taxes.Further, Congress, in enacting § 7207, did not reenact § 3616(a)'s requirement that the false or fraudulent return be made with "intent to defeat or evade" the tax due. Thus, the second basis for the Court's conclusion in Achilli that § 3616(a) did not apply to income taxes was removed. See Berra v. United States, supra, at 351 U. S. 134, n. 5. Finally, in providing that the false or fraudulent return be made "willfully," § 7207 was conformed to the language contained in the other misdemeanor provisions clearly applicable to income taxes. See, e.g., § 7203.We conclude, therefore, that § 7207 applies to income tax violations. Since there is no doubt that §§ 7201 and 7203 also apply to income tax violations, with obvious overlapping among them, there can be no doubt that the lesser included offense doctrine applies to these statutes in an appropriate case. See Spies v. United States, 317 U. S. 492, 317 U. S. 495; Berra v. United States, supra.IIThe basic principles controlling whether or not a lesser included offense charge should be given in a particular case have been settled by this Court. Rule 31(c) of the Federal Rules of Criminal Procedure provides, in relevant part, that the "defendant may be found guilty of an offense necessarily included in the offense charged." Thus,"[i]n a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it . . . , [is] entitled to an instruction which would permit a finding of guilt of the lesser offense."Berra v. United States, supra, at 351 U. S. 134. See Stevenson v. United States, 162 U. S. 313. But a lesser offense charge is not proper where, on the Page 380 U. S. 350 evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v. United States, supra; Sparf v. United States, 156 U. S. 51, 156 U. S. 63-64. In other words, the lesser offense must be included within, but not, on the facts of the case, be completely encompassed by, the greater. A lesser included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser included offense. Berra v. United States, supra; Sparf v. United States, supra, at 156 U. S. 63-64. [Footnote 6] We now apply the principles declared in these cases to the instant case.IIIThe offense here charged was a violation of § 7201, which proscribes willfully attempting in any manner to evade or defeat any tax imposed by the Internal Revenue Code. As this Court has recognized, this felony provision is"the capstone of a system of sanctions which, singly or in combination, were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of Page 380 U. S. 351 delinquency."Spies v. United States, supra, at 317 U. S. 497. As such a capstone, § 7201 necessarily includes among its elements actions which, if isolated from the others, constitute lesser offenses in this hierarchical system of sanctions. Therefore, if, on the facts of a given case, there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of § 7201 have not been proved, all the elements of one or more lesser offenses have been, it is clear that the defendant is entitled to a lesser included offense charge as to such lesser offenses.As has been held by this Court, the elements of § 7201 are willfulness; the existence of a tax deficiency, Lawn v. United States, 355 U. S. 339, 355 U. S. 361; Spies v. United States, supra, at 317 U. S. 496; and an affirmative act constituting an evasion or attempted evasion of the tax, Spies v. United States, supra. In comparison, § 7203 makes it a misdemeanor willfully to fail to perform a number of specified acts at the time required by law -- the one here relevant being the failure to pay a tax when due. This misdemeanor requires only willfulness and the omission of the required act -- here, the payment of the tax when due. As recognized by this Court in Spies v. United States, supra, at 317 U. S. 499, the difference between a mere willful failure to pay a tax (or perform other enumerated actions) when due under § 7203 and a willful attempt to evade or defeat taxes under § 7201 is that the latter felony involves "some willful commission in addition to the willful omissions that make up the list of misdemeanors." Where there is, in a § 7201 prosecution, a disputed issue of fact as to the existence of the requisite affirmative commission in addition to the § 7203 omission, a defendant would, of course, be entitled to a lesser included offense charge based on § 7203. Cf. Spies v. United States, supra. In this case, however, it is undisputed that petitioner filed Page 380 U. S. 352 a tax return, and that the petitioner's filing of a false tax return constituted a sufficient affirmative commission to satisfy that requirement of § 7201. The only issue at trial was whether petitioner's act was willful. Given this affirmative commission and the conceded tax deficiency, if petitioner's act was willful, that is, if the jury believed, as it obviously did, that he knew that the capital gain on the sale of the property was reportable in 1957, he was guilty of violating both §§ 7201 and 7203. If his act was not willful, he was not guilty of violating either § 7201 or § 7203. Thus, on the facts of this case, §§ 7201 and 7203 "covered precisely the same ground." Berra v. United States, supra, at 351 U. S. 134. This being so, on the authorities cited, it is clear that petitioner was not entitled to a lesser included offense charge based on § 7203.Section 7207 requires the willful filing of a document known to be false or fraudulent in any material manner. The elements here involved are willfulness and the commission of the prohibited act. Section 7207 does not, however, require that the act be done as an attempt to evade or defeat taxes. Conduct could therefore violate § 7207 without violating § 7201 where the false statement, though material, does not constitute an attempt to evade or defeat taxation because it does not have the requisite effect of reducing the stated tax liability. This may be the case, for example, where a taxpayer understates his gross receipts and he offsets this by also understating his deductible expenses. In this example, if the Government, in a § 7201 case, charged tax evasion on the grounds that the defendant had understated his tax by understating his gross receipts, and the defendant contended that this was not so, as the misstatement of gross receipts had been offset by an understatement of deductible expenses, the defendant would be entitled to a lesser Page 380 U. S. 353 included offense charge based on § 7207, there being this relevant disputed issue of fact. This would be so, for, in such a case, if the jury believed that an understatement of deductible expenses had offset the understatement of gross receipts, while the defendant would have violated § 7207 by willfully making a material false and fraudulent statement on his return, he would not have violated § 7201, as there would not have been the requisite § 7201 element of a tax deficiency. Here, however, there is no dispute that petitioner's material misstatement resulted in a tax deficiency. Thus, there is no disputed issue of fact concerning the existence of an element required for conviction of § 7201 but not required for conviction of § 7207. Given petitioner's material misstatement which resulted in a tax deficiency, if, as the jury obviously found, petitioner's act was willful in the sense that he knew that he should have reported more income than he did for the year 1957, he was guilty of violating both §§ 7201 and 7207. If his action was not willful, he was guilty of violating neither. As was true with § 7203, on the facts of this case, §§ 7201 and 7207 "covered precisely the same ground," Berra v. United States, supra, at 351 U. S. 134, and thus petitioner was not entitled to a lesser included offense charge based on § 7207.Petitioner makes one final contention. He argues that he could have been acquitted of attempting to evade or defeat his 1957 taxes, in violation of § 7201, but still have been convicted for willfully failing to pay his tax when due in violation of § 7203 or willfully filing a fraudulent return in violation of § 7207, if the jury believed his statement contained in the government-introduced affidavit that, although he knew that profit on the sale in question was reportable for 1957 and that tax was due thereon, he intended to report the sale and pay the 1957 tax at some unspecified future date. The basic premise of this argument Page 380 U. S. 354 is that, although all three sections require willfulness, on the facts here, the contents of these willfulness requirements differ. T he argument is made that, while an intent to report and pay the tax in the future does not vitiate the willfulness requirements of §§ 7203 and 7207, it does constitute a defense to a willful attempt "in any manner to evade or defeat any tax imposed by" the Internal Revenue Code, in violation of § 7201. While we agree that the intent to report the income and pay the tax sometime in the future does not vitiate the willfulness required by §§ 7203 and 7207, we cannot agree that it vitiates the willfulness requirement of § 7201.No defense to a § 7201 evasion charge is made out by showing that the defendant willfully and fraudulently understated his tax liability for the year involved, but intended to report the income and pay the tax at some later time. As this Court has recognized, § 7201 includes the offense of willfully attempting to evade or defeat the assessment of a tax as well as the offense of willfully attempting to evade or defeat the payment of a tax. Lawn v. United States, supra. The indictment here charged an attempt to evade income taxes by defeating the assessment for 1957. The fact that petitioner stated to a revenue agent that he intended to report his 1957 income in some later year, even if taken at face value, would not detract from the criminality of his willful act defeating the 1957 assessment. That crime was complete as soon as the false and fraudulent understatement of taxes (assuming, of course, that there was in fact a deficiency) was filed. See United States v. Beacon Brass Co., 344 U. S. 43, 344 U. S. 46. See also Spies v. United States, supra, at 317 U. S. 498-499.In sum, it is clear here that there were no disputed issues of fact which would justify instructing the jury that it could find that petitioner had committed all the elements Page 380 U. S. 355 of either or both of the §§ 7203 and 7207 misdemeanors without having committed a violation of the § 7201 felony. This being the case, the petitioner was not entitled to a lesser included offense charge, and the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtSansone v. United States, 380 U.S. 343 (1965)Sansone v. United StatesNo. 365Argued March 10, 1965Decided March 29, 1965380 U.S. 343SyllabusPetitioner was indicted for willfully attempting to evade federal income taxes in violation of 26 U.S.C. § 7201. At the end of his trial, he requested that the jury be instructed that it could acquit him of that offense, a felony, but could convict him of the lesser included misdemeanors of willfully filing a fraudulent or false return in violation of § 7207, or willfully failing to pay his taxes when due in violation of § 7203. The request was denied, and petitioner was found guilty. The Court of Appeals upheld the conviction.Held:1. Since § 7207 applies to income tax violations, as §§ 7201 and 7203 clearly do, with obvious overlapping among them, the lesser included offense doctrine would be applicable in an appropriate case. Pp. 380 U. S. 347-349.2. A lesser included offense instruction is proper only where the charged greater offense requires that the jury find a disputed factual element which is not a requisite for conviction of the lesser included offense. Berra v. United States, 351 U. S. 131, followed. Pp. 380 U. S. 349-350.3. There were here no disputed issues of fact which would justify instructions to the jury that it could find that petitioner had committed all the elements of §§ 7203 and 7207 without having violated § 7201, and so petitioner was not entitled to lesser included offense instructions. Pp. 380 U. S. 350-354.334 F.2d 287 affirmed. Page 380 U. S. 344

1965_440

MR. JUSTICE WHITE delivered the opinion of the Court.The typical construction contract between the Government and a private contractor provides for an equitable adjustment of the contract price or an appropriate extension of time, or both, if the government orders permitted changes in the work or if the contractor encounters changed conditions differing materially from those ordinarily anticipated. Likewise, it is provided that the contract shall not be terminated, nor the contractor charged with liquidated damages, if he is delayed in completing the work by unforeseeable conditions beyond his control, including acts of the Government. See Armed Services Procurement Regulations (hereinafter ASPR), 32 CFR §§ 7.602-3 to 7.602-5; Atomic Energy Commission Procurement Regulations (hereinafter AECPR), 41 CFR Page 384 U. S. 397 § 9-7.5005-2. [Footnote 1] Article 15 provides that "all disputes concerning questions of fact arising under this contract" shall be decided by the contracting officer subject to written Page 384 U. S. 398 appeal to the head of the department, "whose decision shall be final and conclusive upon the parties thereto." ASPR, 32 CFR §7.602-6; AECPR, 41 CFR Page 384 U. S. 399 § 9-7.5004-3. [Footnote 2] Appeals from the decision of the contracting officer are characteristically heard by a board or committee designated by the head of the contracting department or agency. Should the contractor be dissatisfied with the administrative decision and bring a Tucker Act suit for breach of contract in the Court of Claims or the District Court, 28 U.S.C. § 1346(a)(2) (1964 ed.), the finality accorded administrative fact finding by the disputes clause is limited by the provisions of the Wunderlich Act of 1954 which directs that such a decision"shall be final and conclusive unless the same is fra[u]dulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence. [Footnote 3]"With respect to this statutory provision Page 384 U. S. 400 we held in United States v. Carlo Bianchi & Co., 373 U. S. 709, that where the evidentiary basis for the administrative decision is challenged in a breach of contract suit, Congress did not intend a de novo determination of the facts by the court, which must confine its review to the administrative record made at the time of the administrative appeal.The issues in this case involve the coverage of the disputes clause and a recurring problem concerning the application of Bianchi to certain findings made during the administrative process. We granted certiorari because of the importance of these questions in the administration of government contracts. 382 U. S. 900.I.The contractor, Utah Construction & Mining Company, executed a contract in March, 1953, to build a facility for the Atomic Energy Commission. After completing the project in January, 1955, it filed with the contracting officer a "Pier Drilling" claim, which asked for an adjustment in the contract price and an extension of time under Article 4, the "changed conditions" clause. The contractor asserted it had encountered float rock in the course of excavating and drilling which, among other things, had increased its costs and delayed the work. Contrary to the decision of the contracting officer, the Advisory Board of Contract Appeals found the float rock to be a changed condition within the meaning of Article 4. But the Board nevertheless denied the request for a time extension and for delay damages. It found that the increased costs had been incurred by a subcontractor, rather than the contractor, and that the delay experienced by the contractor was not caused by the float rock, but by a dispute over the quality of concrete aggregate furnished by the Government, a dispute not then before the Board for adjudication. Page 384 U. S. 401Another claim filed by the contractor, its "Shield Window" claim, asserted the existence of changed conditions calling for relief under Article 4 by reason of inadequate specifications and drawings furnished by the Government. Additional compensation and additional time were demanded. The Board found there was no changed condition within Article 4, and denied additional compensation. However, it found the delay involved to be the result of difficulties inherent in a new field of construction, rather than the fault of either party, and it therefore authorized a time extension under Article 9.In the contractor's subsequent suit for breach of contract, the Court of Claims held both the Pier Drilling claim and the Shield Window claim to be claims for delay damages alleging a breach of contract by reason of the Government's unreasonable delay. In its view, such breach of contract claims were not within the disputes clause, and the administrative findings regarding the responsibility for the delays were subject to de novo determination in the Court of Claims. The disputes clause limited the authority of the Board to "disputes concerning questions of fact arising under this contract." That meant "a dispute over the rights of the parties given by the contract; it [did] not mean a dispute over a violation of the contract." Utah Constr. & Mining Co. v. United States, 339 F.2d 606, 609-610, 168 Ct.Cl. 522, 527 (1964). Because the Advisory Board of Contract Appeals was clearly authorized to determine the cause of the delay in granting or denying the request for an extension of time under Articles 4 and 9, the dissenting judge thought the findings were reviewable only on the administrative record, and therefore objected to the de novo trial ordered by the majority. 339 F.2d at 615, 168 Ct.Cl. at 537 (Davis, J.).The meaning of the Court of Claims' distinction between disputes over rights given by the contract and Page 384 U. S. 402 disputes over a violation of the contract has been clarified in a subsequent decision holding that, to the extent complete relief is available under a specific contract adjustment provision, such as the changes or changed conditions clauses, the controversy falls within the disputes clause, and cannot be tried de novo in a suit for breach of contract. Morrison-Knudsen Co. v. United States, 345 F.2d 833, 837, 170 Ct.Cl. 757, 762 (1965). With respect to relief available under the contract, therefore, the contractor must exhaust his administrative remedies, and the findings and determination of the Board would be subject to review under the Wunderlich Act standards, as applied in Bianchi. But the Court of Claims has also ruled that, when only partial relief is available under the contract -- e.g., an extension of time under Article 4 -- the remedies under the contract are not exclusive, and the contractor may secure damages in breach of contract if the Government's conduct has been unreasonable. See Fuller Co. v. United States, 69 F. Supp. 409, 108 Ct.Cl. 70, 90-102 (1947); Kehm Corp. v. United States, 93 F. Supp. 620, 119 Ct.Cl. 454, 465-473 (1950). The issue raised by the decision of the Court of Claims respecting the Pier Drilling and Shield Window claims is therefore whether factual issues that have once been properly determined administratively may be retried de novo in subsequent breach of contract actions for relief that is unavailable under the contract.The other issue of significance in this case is raised by a third claim filed by the contractor, and involves the matter referred to by the Advisory Board of Contract Appeals in disposing of the contractor's Pier Drilling claim. The contractor, as it was permitted to do under the contract, elected to purchase concrete aggregate from the government stockpile, discovering very shortly that the aggregate was dirty, and its poor quality the cause of understrength concrete. The Government suspended the Page 384 U. S. 403 work for a time, directed temporary corrective procedures, and itself undertook more permanent remedial measures. After completing the contract, the contractor claimed extra compensation based on the poor condition of the aggregate, which was alleged to be a changed condition under Article 4. The contracting officer rejected the claim, and the Board ruled the appeal was untimely. It remarked, however, that, if the claim was one for unliquidated damages for breach of warranty or for delay, it had no jurisdiction to award monetary relief. Rejecting the Government's position that even if a claim sought only a remedy that was not available under Articles 3, 4 or 9, it nevertheless was within the scope of the disputes clause and subject to "final" administrative determination, the Court of Claims held that, unless the claim sought relief for a "change" under Article 3 or "changed conditions" under Article 4 or "excusable delay" under Article 9 and was adjustable by the terms of those provisions, the claim was not within the disputes clause, was not subject to administrative determination, and was a matter for de novo trial and decision in the proper court. [Footnote 4]IIWe deal first with the issue of the scope of the disputes clause which is raised by the Court of Claims' treatment of the concrete aggregate claim. The Government reasserts here its position in the Court of Claims [Footnote 5] that the Page 384 U. S. 404 disputes clause authorizes and compels administrative action in connection with all disputes arising between the parties in the course of completing the contract. In its view, the disputes clause is not limited to those disputes arising under other provisions of the contract -- Articles 3, 4 and 9 in this case -- that contemplate equitable adjustment in price and time upon the occurrence of the specified contingencies. If the Government is correct, the concrete aggregate claim was a proper subject for administrative handling even if the substandard aggregate was not a changed condition within Article 4, and even if the claim was for breach of warranty and delay damages. From this and from the Government's position in United States v. Anthony Grace & Sons, Inc., post, p. 384 U. S. 424, which we sustain, it would follow that the factual issues underlying this claim were not subject to a de novo trial in the Court of Claims.We must reject the government position, as did all the judges in the Court of Claims. The power of the administrative tribunal to make final and conclusive findings on factual issues rests on the contract, more specifically on the disputes clause contained in Article 15. This basic proposition the United States does not challenge; and the short of the matter is that, when the parties signed this contract in 1953, neither could have understood that the disputes clause extended to breach of contract claims not redressable under other clauses of the contract. [Footnote 6] Our conclusion rests on an examination of Page 384 U. S. 405 uniform, continuous, and longstanding judicial and administrative construction of the disputes clause, both before and after the contract here in question was executed. Reference to decisions subsequent to 1953 is justified in many cases as a practical construction of the clause by one of the contracting parties, the Government (for it has frequently been the Government that has urged a narrow construction of the disputes clause on the various Boards of Contract Appeals), [Footnote 7] and, in any event, as showing the construction on which innumerable other government contractors may have relied in not presenting breach of contract claims to the contracting officer, which claims would now be forever barred under the Government's interpretation by the contractual time limitations on the presentation of claims and appeals. [Footnote 8]Beginning in 1937, a series of cases in the Court of Claims decided prior to the execution of this contract had established that the jurisdiction of the Boards of Contract Appeals under the disputes clause was limited to claims for equitable adjustments, time extensions, or other remedies under specific contract provisions authorizing such relief, and, accordingly, that the contractor need not process pure breach of contract claims through the disputes machinery before filing his court action. See, e.g., Phoenix Bridge Co. v. United States, 85 Ct.Cl. 603, 629-630 (1937); Plato v. United States, 86 Ct.Cl. 665, 677-678 (1938); John A. Johnson Contracting Corp. v. Page 384 U. S. 406 United States, 98 F. Supp. 154, 156, 119 Ct.Cl. 707, 745 (1951); Continental Illinois Nat. Bank & Trust Co. of Chicago v. United States, 115 F. Supp. 892, 897, 126 Ct.Cl. 631, 640-641 (1953). That has continued to be the view of the Court of Claims. E.g., Railroad Waterproofing Corp. v. United States, 137 F. Supp. 713, 715-716, 133 Ct.Cl. 911, 915-916 (1956); Ekco Products Co. v. United States, 312 F.2d 768, 773, 160 Ct.Cl. 75, 84 (1963); see also Hunter v. United States, 9 C.C.F. � 72,647 (D.C.E.D.N.C.1963), aff'd per curiam, 331 F.2d 741 (C.A.4th Cir. 1964).After its creation in 1942, the War Department Board of Contract Appeals quickly accepted the principle established by the Phoenix Bridge and Plato cases, Boyer t/a Harry Boyer, Son & Co., 1 C.C.F. 53 (1943); Kirk t/a Kirk Bldg. Co., 1 C.C.F. 67, 70-71 (1943), and long prior to 1953 it was the settled practice of the various Boards to refuse to consider pure breach of contract claims, e.g., Asbestos Wood Mfg. Co., 2 C.C.F. 203 (WDBCA 1944); Specer B. Lane Co., 2 C.C.F. 500, 505 (WDBCA 1944); Rust Engr. Co., 3 C.C.F. 1210 (NDBCA 1945). The United States, indeed, grudgingly concedes that the boards "have frequently, and perhaps usually," declined such jurisdiction. Such rulings are, in fact, legion, see, e.g., Dean Constr. Co., 1965-2 B.C.A. � 4888 (GSBCA 1965); Prototype Development, Inc., 1965-2 B.C.A. � 4993 (ASBCA 1965); Electrical Builders, Inc., 1964 B.C.A. � 4377 (IBCA 1964); E. & E. J. Pfotzer, 1965-2 B.C.A. � 5144 (ENG BCA 1965), and the decisions cited therein and in the decision below, 339 F.2d at 616, n. 2, 168 Ct.Cl. at 538 (Davis, J., dissenting and concurring), and include decisions of the bodies appointed to administer the disputes clause on behalf of the Atomic Energy Commission, the contracting agency in this case, see Claremont Constr. Co., Dkt. No. 64 (Feb. 14, 1955); Frontier Drilling Co., Dkt. No. 74 (July 1, 1955); Utah Constr. Co., Dkt. No. 91 (Dec. 12, Page 384 U. S. 407 1956); J. A. Tiberti Constr. Co., Dkt. No. CA-126 (May 2, 1961); but cf. Fick Foundry Co., 1965-2 B.C.A. � 5052 at 23,786. The AEC Advisory Board of Contract Appeals reaffirmed this interpretation of the disputes clause in its discussion of respondent's concrete aggregate claim, see supra, p. 384 U. S. 403.The United States does not dispute the fact that the past construction of the standard disputes clause has been that it does not authorize the Boards of Contract Appeals to finally determine, and to grant relief for, all claims related to the contracted work. [Footnote 9] Instead, it attacks these rulings of the Court of Claims and the Boards of Contract Appeals concerning the scope of the standard disputes clause as erroneous and premised on principles that have since been rejected in other cases. But even if, as an original matter, the language of the disputes clause might have been susceptible of the interpretation urged by the Government, the restrictive meaning of the words "arising under this contract" had long since been established when these parties used them in 1953. The question before us is what the parties intended, not whether the construction on which they relied was erroneous.The United States, as an alternative argument, would limit the rulings described above to the question of availability of remedy, and it contends that, even if it be accepted that the Boards of Contract Appeals are without jurisdiction to grant relief for breach of contract, they are nevertheless authorized by the disputes clause to Page 384 U. S. 408 make binding findings of fact respecting all disputes. The argument is premised in the main on certain unique provisions in the charter of the Armed Services Board of Contract Appeals, which is the successor to the War Department Board of Contract Appeals. Special attention to the ASBCA is justified by its large caseload and its consequent importance as a model for the development of other Boards.Originally, the WDBCA took a narrow view of its jurisdiction, see Shedd, Disputes and Appeals: The Armed Services Board of Contract Appeals, 29 Law & Contemp. Prob. 39, 55 (1964), and, as a result, the Secretary of War issued, on July 4, 1944, a memorandum directing the Board, inter alia, to"[f]ind and administratively determine the facts out of which a claim by a contractor arises for damages against the Government for breach of contract, without expressing opinion on the question of the Government's liability for damages."9 Fed.Reg. 9463. Similarly, the present charter of the ASBCA provides that"[w]hen, in the consideration of an appeal, it appears that a claim is involved which is not cognizable under the terms of the contract, the Board may, insofar as the evidence permits, make findings of fact with respect to such a claim without expressing an opinion on the question of liability."32 CFR § 30.1, App. A, Part I, § 5. It will be noted that, on their face, the very provisions on which the Government relies in this phase of its argument conclusively refute the broader contention that the Boards may determine and afford relief for all contract claims, for they recognize that some claims for breach of contract may not be "cognizable under the terms of the Page 384 U. S. 409 contract" and that, in such cases, the Boards should express no opinion on the question of liability. [Footnote 10] Nor do the provisions, in terms, provide any support for the view that the Boards may make binding, as distinguished from advisory, findings of fact.In the first case before the WDBCA under the 1944 directive, the Board ruled that it would retain jurisdiction to hold a hearing and to make findings of fact even though it expressly recognized it could grant no relief, and it was "doubtful whether any findings the Board should make . . . would be given any consideration by a court. . . ." Columbia Constructors, Inc., 2 C.C.F. 942 (WDBCA 1944). Such willingness to make findings even though no hearing had theretofore been held was in keeping with the dual function of adjudicatory body and advisor to the Secretary then exercised by the WDBCA, which heard appeals on an advisory basis in the case of contracts that did not authorize the designation of a board as the representative of the Secretary to hear appeals, see generally Smith, The War Department Board of Contract Appeals, 5 Fed.B.J. 74, 77 (1943), and sometimes investigated claims for extraordinary relief under Title II of the First War Powers Act, 55 Stat. 838 (1941), see Ardmore Constr. Co., 3 C.C.F. 255, 265 (WDBCA 1944). Subsequently, the contractor's appeal in the Columbia Constructors case was dismissed when the contractor represented that he did not desire a hearing if the Board could award no relief, thus confirming the parties' understanding that the 1944 memorandum did not require presentation to the WDBCA of all contract disputes as a prerequisite to a court action. 2 C.C.F. 1162 (WDBCA 1944). In later cases where a hearing had been held in connection with other claims Page 384 U. S. 410 the WDBCA did make special findings, but without any intimation that such findings were to have binding effect. E.g., Swords-McDougal Co., 3 C.C.F. 238 (WDBCA 1944); Fiske-Carter Constr. Co., 3 C.C.F. 415 (WDBCA 1945); Hargrave t/a Hargrave Constr. Co., 3 C.C.F. 1113, 1120 (WDBCA 1945).The practice of the ASBCA has evidenced an even narrower understanding of the charter provision authorizing findings without expression of opinion on liability. In cases heard on the merits prior to decision of the jurisdictional question the Board has made special findings in accordance with the charter. See Specialty Assembling & Packing Co., 1959-2 B.C.A. � 2370; J. W. Bateson Co., 1962 B.C.A. � 3293; see also the Metrig Corp., 1963 B.C.A. � 3658. But in Simmel-Industrie Meccaniche Societa per Azioni, 1961-1 B.C.A. � 2917, the Board rejected the contractor's contention that"[t]he ASBCA has jurisdiction and is under a duty to make findings of fact in this appeal even if it lacked jurisdiction to make an award to appellant,"id. at 15,233. The Board interpreted the charter to mean that it would make special findings only in "appeals where a hearing on the merits has been completed prior to the filing of a rule to show cause or a motion to dismiss." Id. at 15,235. More recently the Board has explained that"[g]enerally, as a matter of sound policy, the Board's discretionary right to make findings of fact in instances where a claim is not cognizable under the contract is not exercised, simply because the Board has no way to afford the parties the remedy which logically would flow from the facts found. The cases wherein the Board has declined to consider an appeal because it had no method within the confines of the contract terms to afford a remedy have sometimes been described, perhaps rather inaptly, Page 384 U. S. 411 as being beyond our jurisdiction or beyond our authority to consider. Basically, the lack is not of authority to hear, but of authority finally to dispose administratively."Lenoir Wood Finishing Co., 1964 B.C.A. � 4111 at 20,061.As Lenoir Wood Finishing Co. indicates, the ASBCA, like the WDBCA, has disclaimed any binding effect for its findings in those cases where it has made special findings solely under authority of the special charter provision. See also Simmel-Industrie Meccaniche Societa per Azioni, supra, at 15,235; J. W. Bateson Co., supra, at 16,985. Since the ASBCA has declared it is not under any mandatory duty to make findings at a contractor's request in cases where it has no jurisdiction to grant relief, it would seem strange indeed to interpret the disputes clause as embodying the parties' understanding that such cases were nevertheless to be determined administratively.Since it is so clearly established that the special charter authority to make findings without expression of opinion on liability does not expand the scope of the disputes clause or empower the Board to make binding determinations of fact, one may well ask what purpose such authority, and the findings made pursuant to it, can possibly serve. One obvious answer is that the Board's findings may facilitate a settlement of the contractor's breach of contract claim. For example, the General Accounting Office, which has statutory authority to settle claims against the United States, Budget and Accounting Act, 1921, §305, 42 Stat. 24, 31 U.S.C. § 71 (1964 ed.), provides no procedure for resolution of factual disputes, 21 Comp.Gen. 244, and thus refuses to undertake settlement where there are substantial factual disputes. Comp.Gen.Dec. B-147326, May 25, 1962; Comp.Gen.Dec. B-149795, Jan. 4, 1963. Accordingly, acceptance Page 384 U. S. 412 by the parties of the Board's findings might provide the necessary requisite for intervention of the GAO. [Footnote 11]Thus, the settled construction of the disputes clause excludes breach of contract claims from its coverage, whether for purposes of granting relief or for purposes of making binding findings of fact that would be reviewable under Wunderlich Act standards, rather than de novo. This is not to say that the Government does not have a powerful argument for construing the disputes clause to afford administrative relief for a wider spectrum of disputes arising between the contracting parties. It can be argued, as the Government persuasively does, that the same considerations which initially led to providing an administrative remedy in those situations covered by such clauses as Articles 3, 4 and 9 of the contract also support the broader reading of the disputes Page 384 U. S. 413 clause permitting and requiring administrative factfinding with respect to all disputes arising between the contracting parties. But the coverage of the disputes clause is a matter susceptible of contractual determination, United States v. Moorman, 338 U. S. 457, subject to the limitations on finality imposed by the Wunderlich Act, and one would have expected modification of the disputes clause to encompass breach of contract disputes if the restrictive interpretation of Article 15 was thought unduly to hinder government contracting. In fact, the contracting department have not rejected the narrower judicial reading of the disputes clause, nor attempted any wholesale revision of its language to cover all factual disputes. Instead, they have acted to create alternative administrative remedies for some breach of contract claims, and to disestablish others by fashioning additional specific adjustment provisions contemplating relief under the contract in specified situations not reached by such provisions as Articles 3, 4 and 9.An example of the creation of alternative administrative remedies is afforded by the provisions in effect at various times since World War II, see First War Powers Act, Title II, 55 Stat. 838 (1941); Act of January 12, 1951, 64 Stat. 1257, authorizing extraordinary relief for certain claims of contractors. Pursuant to a delegation by the President under the statute presently in effect, Public Law 85-804, 72 Stat. 972, 50 U.S.C. § 1431 (1964 ed.), government departments and agencies exercising functions in connection with the national defense may, upon a finding that such action would "facilitate the national defense," enter into amendments and modifications of contracts without regard to other provisions of law respecting such amendments and modifications. As implemented by the departmental procurement regulations, see ASPR, 32 CFR § 17.000 et seq.; AECPR, 41 CFR § 9-17.000 et seq., the authority conferred encompasses Page 384 U. S. 414 amendments without consideration, correction of mutual mistakes, and formalization of informal commitments. This authority, which in many respects is analogous to power to settle claims, is delegated to Contract Adjustment Boards established within the departments and agencies concerned separate from the Boards of Contract Appeals. Because the regulations preclude resort to the powers conferred by Public Law 85-804 "[u]nless other legal authority in the Department concerned is deemed to be lacking or inadequate," ASPR, 32 CFR § 17.205-1(b)(2), the Army Contract Adjustment Board has required contractors to exhaust remedies before the ASBCA under the disputes clause, Blaw-Knox Co., ACAB Dkt. No. 1019, Nov. 2, 1960. However, in Bendix Corp., ACAB Dkt. No. 1050, Sept. 11, 1962, which involved a claim for delay damages arising out of the Government's failure to make the construction site available on time, the Board ruled that the contractor need not present its claim to the ASBCA in view of that body's lack of jurisdiction over claims that were not premised on a provision for adjustment within the contract. Further, the ACAB confirmed that it was empowered to grant unliquidated damages for delay in breach of contract even though the contractor might also have a court action. Likewise, the Boards of Contract Appeals have consistently recognized that, while they themselves may be without jurisdiction to grant relief for claimed breaches of contract, such claims, in appropriate cases, could be presented to the Adjustment Boards. See, e.g., Fiske-Carter Constr. Co., 3 C.C.F. 415 (WDBCA 1945); Ardmore Constr. Co., 3 C.C.F. 468 (WDBCA 1945); see generally Smith, The War Department Board of Contract Appeals, 5 Fed.B.J. 74, 82 (1943); cf. Doyle & Russell, Inc., 1965-2 2 B.C.A. � 4912 at 23,220 (NASA BCA). Thus it is quite evident from the administration of Public Law Page 384 U. S. 415 85-804 and its predecessors that the limitations on the jurisdiction of the Boards of Contract Appeals are well understood by the military procurement departments and Congress. [Footnote 12]An illustration of the disestablishment of breach of contract claims through the fashioning of additional contract adjustment provisions is provided by contractual provisions designed to deal with just such claims for delay damages as are presented here. In response to the importunings of Army contractors following this Court's ruling in United States v. Rice, 317 U. S. 61, that the contractor's remedy under Article 9 was limited to an extension of time, a "Suspension of Work" clause was adopted for use in construction contracts, see T. C. Bateson Constr. Co., 1960-1 B.C.A. � 2552 (ASBCA 1960) at 12,347-12,348, [Footnote 13] and has been the basis for administrative Page 384 U. S. 416 allowance of delay damages in numerous cases. A more extensive clause for "Price Adjustment for Suspension, Delays, or Interruption of Work," ASPR, 32 CFR § 7.604-3, was promulgated in 1961 for optional use in Department of Defense fixed-price construction contracts. Effective April 1965, the clause was made mandatory in such contracts, ASPR § 7-602.46, [Footnote 14] and the Page 384 U. S. 417 Armed Services Procurement Regulations Committee has proposed its use in fixed-price supply contracts as well. See generally Kelly, Government Contractors' Remedies: A Regulatory Reform, 18 Admin.L.Rev. 145, 148-152 (1965). An Interagency Task Group is currently reviewing the clauses in the standard contract form, including the Changes, Changed Conditions and Suspension of Work clauses, to determine whether they should be expanded in coverage to prevent fragmentation of remedies. See Federal Contracts Report, No. 79, Aug. 23, 1965, pp. A-6-A-7. While, in one respect, it can be said that clauses broadening remedies under the contract have been adopted in response to restrictive interpretation of the disputes clause and express dissatisfaction with the unavailability of an administrative remedy, the fact that the response has taken this measured form has manifested the parties' reliance on the prior interpretation and has properly tended to reinforce it. As the ASBCA remarked in Simmel-Industrie, supra,"[i]t is noteworthy that, when it is intended to provide an administrative remedy for Government delays, specific contract clauses have been developed and are set forth for that purpose,"1961-1 B.C.A. at 15,234.Finally, we may note that development of provisions such as the Suspension of Work Clause illustrates not only administrative acceptance of the narrow interpretation of the disputes clause; it also indicates the lack of any compelling reason for overturning that interpretation at this late stage. Inclusion of such additional clauses in the contract naturally limits the area of disputes falling outside the framework of contractual adjustment and thus outside the disputes clause, as does Page 384 U. S. 418 expansive construction of the existing adjustment clauses. As one member of the ASBCA has recently remarked:". . . government procurement agencies started several years ago adding various contract clauses designed to convert what would otherwise be claims for damages for breach of contract into claims payable under such contract clauses and, hence, to be regarded as 'arising under the contract.' This trend has continued to the point where the field of claims for breach of contract that are not regarded as 'arising under the contract' is becoming very narrow indeed. Also, there has been an increasing tendency for contract appeal boards to give a broad interpretation to contract clauses as vehicles for the administrative settlement of meritorious contract claims. Decisions where ASBCA dismisses an appeal for lack of jurisdiction as involving a claim for breach of contract are becoming increasingly rare."Shedd, Disputes and Appeals: The Armed Services Board of Contract Appeals, 29 Law & Contemp.Prob. 39, 74 (1964).For the reasons stated, we reject the Government's contention that the disputes clause covers all disputes relating to the contract.IIIWe are unable to accept, however, the Court of Claims' disposition of the Pier Drilling and Shield Window claims. Although the Board lacked authority to consider delay damages under these two claims, it did have authority to consider the requests for extensions of time under Articles 4 and 9, and these requests called for an administrative determination of the facts. Such findings, if they otherwise satisfy the standards of the Wunderlich Act, are conclusive on the parties not only with respect to the Articles 4 and 9 claims, but also in the Page 384 U. S. 419 court suit for breach of contract and delay damages. This finality is required by the language and policies underlying the disputes clause and the Wunderlich Act, and by the general principles of collateral estoppel.Both the disputes clause and the Wunderlich Act categorically state that administrative findings on factual issues relevant to questions arising under the contract shall be final and conclusive on the parties. [Footnote 15] There is no room in the language of Article 15 or of the Act to consider factual findings final for some purposes, but not for others. It would disregard the parties' agreement to conclude, as the Court of Claims did, that, because the court suit was one for breach of contract which the administrative agency had no authority to decide, the court need not accept administrative findings which were appropriately made and obviously relevant to another claim within the jurisdiction of the board.The position of the Court of Claims would permit erosion of the policies behind both the Wunderlich Act and the disputes clause. Any claim, whether within or without the disputes clause, can be couched in breach of contract language. [Footnote 16] The contractual and statutory scheme would be too easily avoided if a party could compel relitigation of a matter once decided by a mere exercise of semantics. Certainly, as the Court of Claims Page 384 U. S. 420 itself has since held, where the administrative agency has made relevant factual findings in the course of refusing relief which the contract authorizes it to give, the finality of these findings, if sufficiently supported, cannot be avoided in a court action for the same relief by labeling the refusal of an equitable adjustment as a breach of contract, or by asserting that the primary issue involved is a question of law, Morrison-Knudsen Co. v. United States, 345 F.2d 833, 170 Ct.Cl. 757; Allied Paint & Color Works, Inc. v. United States, 309 F.2d 133. Likewise, when the Board of Contract Appeals has made findings relevant to a dispute properly before it and which the parties have agreed shall be final and conclusive, these findings cannot be disregarded, and the factual issues tried de novo in the Court of Claims when the contractor sues for relief which the board was not empowered to give.This is no more than our decision in Carlo Bianchi requires. We there held that administrative findings in the course of adjudicating claims within the disputes clause were not to be retried in the Court of Claims, but were to be reviewed by that court on the administrative record. This result, which was required both by the contract of the parties and by the Wunderlich Act, avoids "a needless duplication of evidentiary hearings and a heavy additional burden in the time and expense required to bring litigation to an end," [Footnote 17] 373 U.S. at 373 U. S. 717, and it encourages the parties to make a complete disclosure at the administrative level, rather than holding evidence back for subsequent litigation. H.R.Rep. No. 1380, 83d Cong., 2d Sess., 5 (1954). These same reasons support the finality, in a suit for delay damages, of all valid and appropriate administrative findings already made in the course of resolving a dispute "arising under" the contract. Page 384 U. S. 421Although the decision here rests upon the agreement of the parties as modified by the Wunderlich Act, we note that the result we reach is harmonious with general principles of collateral estoppel. [Footnote 18] Occasionally courts have used language to the effect that res judicata principles do not apply to administrative proceedings, [Footnote 19] but Page 384 U. S. 422 such language is certainly too broad. [Footnote 20] When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose. Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381; Hanover Bank v. United States, 285 F.2d 455; Fairmont Aluminum Co. v. Commissioner, 222 F.2d 622; Seatrain Lines, Inc. v. Pennsylvania R. Co., 207 F.2d 255. [Footnote 21] See also Goldstein v. Doft, 236 F. Supp. 730, aff'd, 353 F.2d 484, cert. denied, 383 U.S. 960, where collateral estoppel was applied to prevent relitigation of factual disputes resolved by an arbitrator.In the present case, the Board was acting in a judicial capacity when it considered the Pier Drilling and Shield Window claims, the factual disputes resolved were clearly relevant to issues properly before it, and both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek court review of any adverse findings. There is, therefore, neither need nor justification for a second evidentiary hearing on these matters already resolved as between these two parties. [Footnote 22]Accordingly, in light of the above, we affirm the Court of Claims in its interpretation of the scope of the disputes clause, and we reverse as to its failure to give finality, in the suit for delay damages and breach of contract, to factual findings properly made by the Board.It is so ordered

U.S. Supreme CourtUnited States v. Utah Construction & Mining Co., 384 U.S. 394 (1966)United States v. Utah Construction & Mining Co.No. 440Argued March 23-24, 1966Decided June 6, 1966384 U.S. 394SyllabusThe contract whereby respondent agreed to construct a facility for the Atomic Energy Commission contained a disputes clause which provided that "all disputes concerning questions of fact arising under this contract" should be decided by the contracting officer subject to written appeal to the head of the department, "whose decision shall be final and conclusive upon the parties thereto." After completing the project, respondent filed claims seeking additional compensation and time extensions pursuant to the "changed conditions" clause of the contract. The Advisory Board of Contract Appeals, after hearings, (1) denied the request for time extension and damages for the "Pier Drilling" claim, finding that increased costs were incurred by a subcontractor, rather than respondent, and that the delay was caused by a dispute over the quality of government-supplied concrete aggregate, which was not before the Board for adjudication; (2) denied additional compensation, but authorized a time extension for the "Shield Window" claim; and (3) ruled that the appeal from the contracting officer's rejection of the claim for additional compensation for poor quality concrete aggregate was untimely, remarking however that, if the claim was one for unliquidated damages for breach of warranty or for delay, it had no jurisdiction to award monetary relief. Respondent brought this action in the Court of Claims for breach of contract, asserting government-caused unreasonable delay. That court held that the Pier Drilling and Shield Window claims were primarily for breach of contract, and ordered a trial de novo on the factual issues in those claims. On the concrete aggregate claim, the court ruled that, if the claim was one for breach of contract, rather than one "arising under" the contract, the factual issues should be resolved in a judicial trial.Held:1. The government contract "disputes clause" does not extend to breach of contract claims not redressable under other clauses of the contract. Pp. 384 U. S. 403-418.(a) In decisions both before and after the execution of this contract, the Court of Claims had established that the jurisdiction Page 384 U. S. 395 of Boards of Contract Appeals was limited to claims under specific contract provisions authorizing relief, and that contractors need not process pure breach of contract claims through the disputes machinery before filing suit. Pp. 384 U. S. 405-406.(b) It was the settled practice of the Boards of Contract Appeals at the time of execution of this contract to refuse to consider pure breach of contract claims. P. 384 U. S. 406.(c) While some Boards possess authority to make factual findings in cases where they have no jurisdiction to grant relief, such findings have no binding effect. Pp. 384 U. S. 407-411.(d) Congress and the military procurement agencies recognize the jurisdictional limitations of the Boards by enacting alternative administrative remedies and by fashioning additional contract adjustment provisions to deal with claims for delay damages such as presented here. Pp. 384 U. S. 413-417.(e) The development of these additional contractual provisions illustrates not only administrative acceptance of the narrow interpretation of the disputes clause, but also indicates the lack of any compelling reason to overturn that interpretation now. Pp. 384 U. S. 417-418.2. Although the Board here lacked authority to consider delay damages under the Pier Drilling and Shield Window claims, it did have authority to consider requests for time extensions under specific contract provisions, and these requests called for findings of fact which, if they meet the Wunderlich Act standards, are conclusive on the parties not only under the contract provisions, but also in the court action for breach of contract and delay damages. Pp. 384 U. S. 418-423.(a) Both the disputes clause and the Wunderlich Act provide that administrative findings on factual issues relevant to questions arising under the contract shall be final and conclusive on the parties. P. 384 U. S. 419.(b) A party cannot compel relitigation of a matter once decided by merely couching a claim in breach of contract language. P. 384 U. S. 419.(c) United States v. Carlo Bianchi & Co., 373 U. S. 709, held that administrative findings in the course of adjudicating claims within the disputes clause were not to be retried in the Court of Claims, but were only to be reviewed on the administrative record. P. 384 U. S. 420. Page 384 U. S. 396(d) This result is in accord with the principles of collateral estoppel. Pp. 384 U. S. 421-422.(e) Since the Board was acting in a judicial capacity when it considered these claims, the factual disputes were relevant to the issues properly before it, and both parties had an opportunity to argue their version of the facts and to seek court review of adverse findings, there is no need or justification for a second evidentiary hearing on these matters. P. 384 U. S. 422.168 Ct.Cl. 522, 339 F.2d 606, affirmed in part and reversed in part.

1960_241

MR. JUSTICE WHITTAKER delivered the opinion of the Court.Petitioner recovered a judgment in the Court of Claims against the United States for an overpayment of its excess profits taxes for the fiscal year ended March 31, 1942, in the amount of $211,899.28, plus interest thereon "as provided by law." 163 F. Supp. 633, 637, 143 Ct.Cl. 342. Of the principal sum of the judgment, $150,016.21 was attributable to an unused excess profits credit carry-back from the succeeding year ended March 31, 1943. Page 365 U. S. 754Acting in accordance with the provisions of § 3771(e) of the Internal Revenue Code of 1939, the Commissioner computed and allowed statutory interest on the latter sum from June 14, 1945, the date on which petitioner filed its claim for refund, to April 25, 1959 -- 30 days prior to issuance of the refund check -- in the amount of $124,784.72. Thereafter, petitioner moved the Court of Claims for relief from the Commissioner's interpretation of the judgment, contending that interest should be computed, under the provisions of 28 U.S.C. § 2411(a), from the earliest date the overpayment could have been determined (the end of the fiscal year subsequent to the year involved, i.e., March 31, 1943), rather than from the date it filed its claim for refund (June 14, 1945) as provided in § 3771(e), and that it was thus entitled to the further sum of $51,252.69. The motion was denied, without opinion.Because of the importance of the question involved to the proper administration of the internal revenue laws, and to settle a conflict between the lower federal courts upon the question, [Footnote 1] we granted certiorari. 364 U.S. 861.The question thus presented is whether the date from which interest accrues on an overpayment of taxes attributable to an unused excess profits credit carry-back is governed by § 3771(e) [Footnote 2] of the Internal Revenue Code of 1939, or by 28 U.S.C. § 2411(a). [Footnote 3] Page 365 U. S. 755Petitioner contends that, because refund of the tax was not awarded administratively, but by the "judgment of (a) court," the date from which interest runs is governed by the provisions of § 2411(a), and that it is thus entitled to interest from "the date of the payment" on the "overpayment" which, it argues, became ascertainable, Page 365 U. S. 756 and hence should be regarded as made, on March 31, 1943. [Footnote 4] The Government, on the other hand, contends that § 3771(e) is a special statute relating exclusively to tax refunds attributable to the carry-back provisions of the internal revenue laws, and hence prevails, as respects the special subject of carry-backs, over the general provisions of § 2411(a). After a careful review of these and other statutes and their legislative history, we have concluded that the Government is right.Section 3771(e) of the 1939 Code deals specifically with the subject of interest on tax refunds attributable to the carry-back of a net operating loss or an unused excess profits tax credit, and is "an integral part of the carry-back provision[s]" of the internal revenue laws. Manning v. Seeley Tube & Box Co., 338 U. S. 561, 338 U. S. 568. It specifically says that,"[i]f the Commissioner determines that any part of an overpayment is attributable to . . . [an] unused excess profits credit for a succeeding taxable year, no interest shall be allowed or paid with respect to such part of the overpayment for any period before the filing of a claim for credit or refund of such part of the overpayment or the filing of a petition with the Tax Court, whichever is earlier."The refund awarded here was solely "attributable to . . . [an] unused excess profits credit for [the] succeeding taxable year." How, then, can petitioner be entitled to interest "for any period before the filing of a claim for credit or refund"? Page 365 U. S. 757Petitioner agrees that if its award had been made administratively by the Commissioner or the Tax Court, [Footnote 5] rather than by the "judgment" of the Court of Claims, interest would not be allowable on the refund for any period prior to the filing of its claim. But it argues that the language of § 2411(a) --"In any judgment of any court rendered . . . for any overpayment in respect of any internal revenue tax, interest shall be allowed . . . upon the amount of the overpayment, from the date of the payment or collection thereof [Footnote 6]"-- requires the allowance of interest "from the date of the payment or collection" of the tax when recovery is awarded by a District Court or, as here, by the Court of Claims. The effect of petitioner's contention thus is that Congress has made the starting date of interest in such cases dependent upon the forum selected by the taxpayer. Its argument would mean -- in fact, it frankly proceeds on the theory -- that a taxpayer, holding a refund claim attributable to an unused excess profits credit, could, by proceeding in a District Court or the Court of Claims, recover interest from the date when a claim for refund could have been filed, yet, if he proceeded through the Tax Court, he could not recover interest for any period prior to the actual filing of his claim, even though the Tax Court's final judgments (or orders) are subject to review by the United States Courts of Appeals, and ultimately by this Court. In the light of the provisions of § 3771(e) and its legislative history, it is almost certain that Congress did not intend such an anomalous, nonuniform and discriminatory result. Page 365 U. S. 758Petitioner further contends that § 2411(a) is a later enactment than § 3771(e), and, for that reason, should take precedence over it. We do not believe that § 2411(a) can fairly be regarded as a later enactment than § 3771(e), for, at the time § 3771(e) was enacted in 1942, a predecessor provision of § 2411(a) had long been on the books. Save for the word "hereby" -- of no possible significance -- that predecessor provision (§ 177(b) of the Judicial Code, 28 U.S.C. (1940 ed.) § 284(b)) was identical with the present § 2411(a). [Footnote 7] But even if petitioner were correct in concluding that § 2411(a) is to be regarded as the later enactment, it would not necessarily take precedence over § 3711(e), for it is familiar law that a specific statute controls over a general one "without regard to priority of enactment." Townsend v. Little, 109 U. S. 504, 109 U. S. 512. See e.g., Ginsberg & Sons v. Popkin, 285 U. S. 204, 285 U. S. 208; MacEvoy Co. v. United States, 322 U. S. 102, 322 U. S. 107; Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 353 U. S. 228-229.Section 3771(e) specifically fixes the date from which interest shall run on carry-back refunds. It came into the law with the Revenue Act of 1942, which authorized carry-backs. A carry-back is an exceptional relief measure Page 365 U. S. 759 in that it permits a departure from the basic annual accounting rule. The carry-back provisions"were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year."Libson Shops, Inc. v. Koehler, 353 U. S. 382, 353 U. S. 386.The significant feature of a carry-back is that it permits an adjustment of an earlier liability upon the basis of subsequent events. It contemplates that the initial tax obligation was not incorrectly or mistakenly imposed but was actually due, but that an adjustment may be made upon the basis of the taxpayer's gain or loss in the succeeding year or years, and it is evident from the very terms of § 3771(e) that Congress thought it would be unfair to the Government to require it to pay interest on a claim brought about by such a retroactive adjustment prior to the time when the taxpayer took affirmative steps to bring home to the Commissioner that he is now in position to claim, and claims, a readjustment of his past admittedly correct tax liability. Section 3771(e) does not, of course, deny interest on carry-back refunds. It only prohibits the accrual of interest prior to the time the taxpayer's claim therefor is filed with, and thus made known to, the Commissioner.The report of the Senate Finance Committee on the bill that became § 3771(e) clearly discloses that these were Congress' purposes in adopting the section. It said:"A taxpayer entitled to a carry-back of a net operating loss or an unused excess profits credit (see sec. 204 of the bill) will not be able to determine the deduction on account of such carry-back until the close of the future taxable year in which he sustains the net operating loss or has the unused excess profits credit. He must therefore file his return and pay his tax without regard to such deduction, and must file a claim for refund at the close of the succeeding taxable year when he is able to determine the amount of such carry-back. Inasmuch as any overpayment resulting from the deduction of such carry-back does not occur, as a practical matter, until the net operating loss or the unused excess Page 365 U. S. 760 profits credit for the future taxable year is determined, and inasmuch as it is desirable to insure promptness in the filing of claims to inform the Commissioner that such deductions have been determined, this section provides that no interest will be allowed with respect to any such overpayment for any period before the claim therefor is filed, or a petition asserting such overpayment is filed with the Board of Tax Appeals, whichever is earlier. [Footnote 8]"(Emphasis added.) This surely shows Congress' purpose to deny interest on carry-back refunds for any period prior to the time they could be determined, and also to prevent, through delay in the presentation of claims, the accumulation of interest after that date and prior to the filing of the claim. [Footnote 9]In providing, in § 6611(f) of the 1954 Internal Revenue Code, that overpayments resulting from the carry-back of net operating losses "shall be deemed not to have been made prior to the close of the taxable year in which such net operating loss arises," Congress recognized that Page 365 U. S. 761 it was making a change from existing law. The relevant Committee Report [Footnote 10] makes this clear. It said, in pertinent part, that:"Existing law denies interest on an overpayment caused by a carry-back for any period prior to the filing of a claim for credit or refund of such amount (or filing a petition with the Tax Court with respect to such amount). Under this [proposed] section, interest is denied only for the period prior to the close of the taxable year in which the net operating loss arises. This is consistent with the rule for interest on underpayments (see the discussion of sec. 6601). [Footnote 11]"In the light of the provisions of § 3771(e) and its clear legislative history, we think it is a special statute relating solely to, and exclusively governing, tax refunds attributable to the carry-back provisions of the internal revenue laws, and hence prevails, as respects the special subject of carry-backs, over the general provisions of § 2411(a). The judgment of the Court of Claims was therefore correct and must be affirmed.Affirmed

U.S. Supreme CourtBulova Watch Co., Inc. v. United States, 365 U.S. 753 (1961)Bulova Watch Co., Inc. v. United StatesNo. 241Argued March 27, 1961Decided April 17, 1961365 U.S. 753SyllabusWhen the Court of Claims has awarded a judgment against the United States to a taxpayer for an overpayment of excess profits taxes, plus interest thereon "as provided by law," determination of the allowance of interest on so much of the overpayment as was attributable to an unused excess profits credit carry-back is governed by § 3771(e) of the Internal Revenue Code of 1939, dealing specifically with interest on overpayments resulting from carry-backs, rather than by 28 U.S.C. § 2411(a), relating to interest on judgments for tax overpayments generally. Pp. 365 U. S. 753-761.Affirmed.

1990_90-6282

JUSTICE O'CONNOR delivered the opinion of the Court.Petitioners were convicted of manufacturing and conspiring to manufacture "Euphoria," a drug temporarily designated as a schedule I controlled substance pursuant to § 201(h) of the Controlled Substances Act, 98 Stat. 2071, 21 U.S.C. § 811(h). We consider whether § 201(h) unconstitutionally delegates legislative power to the Attorney General and whether the Attorney General's subdelegation to the Drug Enforcement Administration (DEA) was authorized by statute.IIn 1970, Congress enacted the Controlled Substances Act (Act), 84 Stat. 1242, as amended, 21 U.S.C. § 801 et seq. The Act establishes five categories or "schedules" of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. Violations involving schedule I substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety. Relevant here, § 201(a) of the Act authorizes the Attorney General to add or remove substances, or to move a substance from one schedule to another. § 201(a), 21 U.S.C. § 811(a).When adding a substance to a schedule, the Attorney General must follow specified procedures. First, the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services (HHS), together with a recommendation as to whether the substance should be controlled. A substance cannot be scheduled if the Secretary recommends against it. § 201(b), 21 U.S.C. § 811(b). Second, the Attorney General must consider eight factors with respect to the substance, including its potential for abuse, scientific evidence of its pharmacological effect, its psychic or physiological dependence liability, and whether the substance is an immediate precursor of a substance already controlled. § 201(c), 21 U.S.C. § 811(c). Third, the Attorney General must comply with the notice-and-hearing Page 500 U. S. 163 provisions of the Administrative Procedure Act, 5 U.S.C. §§ 551-559, which permit comment by interested parties. § 201(a), 21 U.S.C. § 811(a). In addition, the Act permits any aggrieved person to challenge the scheduling of a substance by the Attorney General in a court of appeals. § 507, 21 U.S.C. § 877.It takes time to comply with these procedural requirements. From the time when law enforcement officials identify a dangerous new drug, it typically takes 6 to 12 months to add it to one of the schedules. S.Rep. No. 98-225, p. 264 (1984), U.S.Code Cong. & Admin.News 1984, p. 3182. Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differing slightly in chemical composition, so that existing schedules did not apply to them. These "designer drugs" were developed and widely marketed long before the Government was able to schedule them and initiate prosecutions. See ibid.To combat the "designer drug" problem, Congress in 1984 amended the Act to create an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is "necessary to avoid an imminent hazard to the public safety." § 201(h), 21 U.S.C. § 811(h). Temporary scheduling under § 201(h) allows the Attorney General to bypass, for a limited time, several of the requirements for permanent scheduling. The Attorney General need consider only three of the eight factors required for permanent scheduling. § 201(h)(3), 21 U.S.C. § 811(h)(3). Rather than comply with the APA notice-and-hearing provisions, the Attorney General need provide only a 30-day notice of the proposed scheduling in the Federal Register. § 201(h)(1), 21 U.S.C. § 811(h)(1). Notice also must be transmitted to the Secretary of HHS, but the Secretary's prior approval of a proposed scheduling order is not required. See § 201(h)(4), 21 U.S.C. § 811(h)(4). Finally, § 201(h)(6), 21 U.S.C. § 811(h)(6), provides that an order to schedule a substance temporarily "is not subject to judicial review." Page 500 U. S. 164Because it has fewer procedural requirements, temporary scheduling enables the Government to respond more quickly to the threat posed by dangerous new drugs. A temporary scheduling order can be issued 30 days after a new drug is identified, and the order remains valid for one year. During this 1-year period, the Attorney General presumably will initiate the permanent scheduling process, in which case the temporary scheduling order remains valid for an additional six months. § 201(h)(2), 21 U.S.C. § 811(h)(2).The Attorney General promulgated regulations delegating to the DEA his powers under the Act, including the power to schedule controlled substances on a temporary basis. See 28 CFR § 0.100(b) (1990). Pursuant to that delegation, the DEA Administrator issued an order scheduling temporarily 4-methylaminorex, known more commonly as "Euphoria," as a schedule I controlled substance. 52 Fed.Reg. 38225 (1987). The Administrator subsequently initiated formal rulemaking procedures, following which Euphoria was added permanently to schedule I.While the temporary scheduling order was in effect, DEA agents, executing a valid search warrant, discovered a fully operational drug laboratory in Daniel and Lyrissa Touby's home. The Toubys were indicted for manufacturing and conspiring to manufacture Euphoria. They moved to dismiss the indictment on the grounds that § 201(h) unconstitutionally delegates legislative power to the Attorney General, and that the Attorney General improperly delegated his temporary scheduling authority to the DEA. The United States District Court for the District of New Jersey denied the motion to dismiss, 710 F. Supp. 551 (1989), and the Court of Appeals for the Third Circuit affirmed petitioners' subsequent convictions, 909 F.2d 759 (1990). We granted certiorari, 498 U.S. 1046 (1991), and now affirm.IIThe Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United Page 500 U. S. 165 States." U.S.Const., Art. I, § 1. From this language, the Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another Branch of government. "The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government." Mistretta v. United States, 488 U. S. 361, 488 U. S. 371 (1989).We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches. Id. at 488 U. S. 372. Thus, Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. So long as Congress"lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power."J.W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 276 U. S. 409 (1928).Petitioners wisely concede that Congress has set forth in § 201(h) an "intelligible principle" to constrain the Attorney General's discretion to schedule controlled substances on a temporary basis. We have upheld as providing sufficient guidance statutes authorizing the War Department to recover "excessive profits" earned on military contracts, see Lichter v. United States, 334 U. S. 742, 334 U. S. 778-786 (1948); authorizing the Price Administrator to fix "fair and equitable" commodities prices, see Yakus v. United States, 321 U. S. 414, 321 U. S. 426-427 (1944); and authorizing the Federal Communications Commission to regulate broadcast licensing in the "public interest," see National Broadcasting Co. v. United States, 319 U. S. 190, 319 U. S. 225-226 (1943). In light of these precedents, one cannot plausibly argue that § 201(h)'s "imminent hazard to the public safety" standard is not an intelligible principle.Petitioners suggest, however, that something more than an "intelligible principle" is required when Congress authorizes another Branch to promulgate regulations that contemplate Page 500 U. S. 166 criminal sanctions. They contend that regulations of this sort pose a heightened risk to individual liberty, and that Congress must therefore provide more specific guidance. Our cases are not entirely clear as to whether or not more specific guidance is in fact required. Compare Fahey v. Mallonee, 332 U. S. 245, 332 U. S. 249-250 (1947), cited in Mistretta, supra, 488 U.S. at 488 U. S. 373, n. 7, with Yakus, supra, 321 U.S. at 321 U. S. 423-427, and United States v. Grimaud, 220 U. S. 506, 220 U. S. 518, 220 U. S. 521 (1911). We need not resolve the issue today. We conclude that § 201(h) passes muster even if greater congressional specificity is required in the criminal context.Although it features fewer procedural requirements than the permanent scheduling statute, § 201(h) meaningfully constrains the Attorney General's discretion to define criminal conduct. To schedule a drug temporarily, the Attorney General must find that doing so is "necessary to avoid an imminent hazard to the public safety." § 201(h)(1), 21 U.S.C. § 811(h)(1). In making this determination, he is "required to consider" three factors: the drug's "history and current pattern of abuse"; "[t]he scope, duration, and significance of abuse"; and "[w]hat, if any, risk there is to the public health." §§ 201(c)(4)-(6), 201(h)(3), 21 U.S.C. §§ 811(c)(4) (6), 811(h)(3). Included within these factors are three other factors on which the statute places a special emphasis: "actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution." § 201(h)(3), 21 U.S.C. § 811(h)(3). The Attorney General also must publish 30-day notice of the proposed scheduling in the Federal Register, transmit notice to the Secretary of HHS, and "take into consideration any comments submitted by the Secretary in response." §§ 201(h)(1), 201(h)(4), 21 U.S.C. §§ 811(h)(1), 811(h)(4).In addition to satisfying the numerous requirements of § 201(h), the Attorney General must satisfy the requirements of § 202(b), 21 U.S.C. § 812(b). This section identifies the criteria for adding a substance to each of the five schedules. Page 500 U. S. 167 As the United States acknowledges in its brief, § 202(b) speaks in mandatory terms, drawing no distinction between permanent and temporary scheduling. With exceptions not pertinent here, it states that"a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance."§ 202(b), 21 U.S.C. § 812(b). Thus, apart from the "imminent hazard" determination required by § 201(h), the Attorney General, if he wishes to add temporarily a drug to schedule I, must find that it "has a high potential for abuse," that it "has no currently accepted medical use in treatment in the United States," and that "[t]here is a lack of accepted safety for use of the drug . . . under medical supervision." § 202(b)(1), 21 U.S.C. § 812(b)(1).It is clear that in §§ 201(h) and 202(b) Congress has placed multiple specific restrictions on the Attorney General's discretion to define criminal conduct. These restrictions satisfy the constitutional requirements of the nondelegation doctrine.Petitioners point to two other aspects of the temporary scheduling statute that allegedly render it unconstitutional. They argue first that it concentrates too much power in the Attorney General. Petitioners concede that Congress may legitimately authorize someone in the Executive Branch to schedule drugs temporarily, but argue that it must be someone other than the Attorney General, because he wields the power to prosecute crimes. They insist that allowing the Attorney General both to schedule a particular drug and to prosecute those who manufacture that drug violates the principle of separation of powers. Petitioners do not object to the permanent scheduling statute, however, because it gives "veto power" to the Secretary of HHS. Brief for Petitioners 20.This argument has no basis in our separation of powers jurisprudence. The principle of separation of powers focuses on the distribution of powers among the three coequal Page 500 U. S. 168 Branches, see Mistretta, supra, 488 U.S. at 488 U. S. 382; it does not speak to the manner in which authority is parceled out within a single Branch. The Constitution vests all executive power in the President, U.S.Const., Art. II, § 1, and it is the President to whom both the Secretary and the Attorney General report. Petitioners' argument that temporary scheduling authority should have been vested in one executive officer rather than another does not implicate separation of powers concerns; it merely challenges the wisdom of a legitimate policy judgment made by Congress.Petitioners next argue that the temporary scheduling statute is unconstitutional because it bars judicial review. They explain that the purpose of requiring an "intelligible principle" is to permit a court to "ascertain whether the will of Page 500 U. S. 169 Congress has been obeyed.'" Skinner v. Mid-America Pipeline Co., 490 U. S. 212, 490 U. S. 218 (1989), quoting Yakus, supra, 321 U.S. at 321 U. S. 426. By providing that a temporary scheduling order "is not subject to judicial review," § 201(h)(6), the Act purportedly violates the nondelegation doctrine.We reject petitioners' argument. Although § 201(h)(6), 21 U.S.C. § 811(h)(6), states that a temporary scheduling order "is not subject to judicial review," another section of the Act plainly authorizes judicial review of a permanent scheduling order. See § 507, 21 U.S.C. § 877. Thus, the effect of § 201(h)(6) is merely to postpone legal challenges to a scheduling order for up to 18 months, until the administrative process has run its course. This is consistent with Congress' express desire to permit the Government to respond quickly to the appearance in the market of dangerous new drugs. Even before a permanent scheduling order is entered, judicial review is possible under certain circumstances. The United States contends, and we agree, that § 201(h)(6) does not preclude an individual facing criminal charges from bringing a challenge to a temporary scheduling order as a defense to prosecution. See Brief for United States 34-36. This is sufficient to permit a court to "ascertain whether the will of Congress has been obeyed.'" Skinner, supra, 490 U.S. at 490 U. S. 218, quoting Yakus, supra, 321 U.S. at 321 U. S. 426. Under these circumstances, the nondelegation doctrine does not require, in addition, an opportunity for preenforcement review of administrative determinations.IIIHaving concluded that Congress did not unconstitutionally delegate legislative power to the Attorney General, we consider petitioners' claim that the Attorney General improperly delegated his temporary scheduling power to the DEA. Petitioners insist that delegation within the Executive Branch is permitted only to the extent authorized by Congress, and that Congress did not authorize the delegation of temporary scheduling power from the Attorney General to the DEA.We disagree. Section 501(a) of the Act states plainly that"[t]he Attorney Genera may delegate any of his functions under [the Controlled Substances Act] to any officer or employee of the Department of Justice."§ 501(a), 21 U.S.C. § 871(a). We have interpreted § 501(a) to permit the delegation of any function vested in the Attorney General under the Act unless a specific limitation on that delegation authority appears elsewhere in the statute. See United States v. Giordano, 416 U. S. 505, 416 U. S. 512-514 (1974). No such limitation appears with regard to the Attorney General's power to schedule drugs temporarily under § 201(h).The judgment of the Court of Appeals is Affirmed

U.S. Supreme CourtTouby v. United States, 500 U.S. 160 (1991)Touby v. United StatesNo. 90-6282Argued April 17, 1991Decided May 20, 1991500 U.S. 160SyllabusThe Controlled Substances Act authorizes the Attorney General, upon compliance with specified procedures, to add new drugs to five "schedules" of controlled substances, the manufacture, possession, and distribution of which the Act regulates or prohibits. Because compliance with the Act's procedures resulted in lengthy delays, drug traffickers were able to develop and market "designer drugs" -- which have pharmacological effects similar to, but chemical compositions slightly different from, scheduled substances -- long before the Government was able to schedule them and initiate prosecutions. To combat this problem, Congress added § 201(h) to the Act, creating an expedited procedure by which the Attorney General can schedule a substance on a temporary basis when doing so is "necessary to avoid an imminent hazard to the public safety," and providing that a temporary scheduling order is not subject to judicial review. The Attorney General promulgated regulations delegating, inter alia, his temporary scheduling power to the Drug Enforcement Administration (DEA), which subsequently temporarily designated the designer drug "Euphoria" as a schedule I controlled substance. While that temporary order was in effect, petitioners were indicted for manufacturing and conspiring to manufacture Euphoria. The District Court denied their motion to dismiss, rejecting their contentions that § 201(h) unconstitutionally delegates legislative power to the Attorney General, and that the Attorney General improperly delegated his temporary scheduling authority to the DEA. The Court of Appeals affirmed petitioners' subsequent convictions.Held:1. Section 201(h) does not unconstitutionally delegate legislative power to the Attorney General. Pp. 500 U. S. 164-169.(a) The nondelegation doctrine does not prevent Congress from seeking assistance from a coordinate Branch, so long as it lays down an "intelligible principle" to which the person or body authorized to act is directed to conform. See, e.g., J. W. Hampton, Jr. & Co. v. United States, 276 U. S. 394, 276 U. S. 409. Section 201(h)'s "imminent hazard to public safety" standard is concededly such a principle. Moreover, even if more specific guidance is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions, § 201(h) Page 500 U. S. 161 passes muster. Although it features fewer procedural requirements than the permanent scheduling statute, the section meaningfully constrains the Attorney General by placing multiple specific restrictions on his discretion to define criminal conduct. He must also satisfy § 202(b)'s requirements for adding substances to schedules. Pp. 500 U. S. 164-167.(b) Section 201(h) does not violate the principle of separation of powers by concentrating too much power in the Attorney General, who also wields the power to prosecute crimes. The separation of powers principle focuses on the distribution of powers among the three coequal Branches of Government, see Mistretta v. United States, 488 U. S. 361, 488 U. S. 382, and does not speak to the manner in which Congress parcels out authority within the Executive Branch. P. 500 U. S. 167-168.(c) Section 201(h) does not violate the nondelegation doctrine by barring judicial review. Since § 507 of the Act plainly authorizes judicial review of a permanent scheduling order, the effect of the § 201(h) bar is merely to postpone legal challenges to a scheduling order until the administrative process has run its course. Moreover, the § 201(h) bar does not preclude an individual facing criminal charges from bringing a challenge to a temporary scheduling order as a defense to prosecution. In these circumstances, the nondelegation doctrine does not require in addition an opportunity for preenforcement review of administrative determinations. Pp. 500 U. S. 168-169.2. The Attorney General did not improperly delegate his temporary scheduling power to the DEA. Section 501(a) of the Act -- which authorizes delegation of "any of [the Attorney General's] functions" under the Act -- permits delegation unless a specific limitation appears elsewhere in the Act. See United States v. Giordano, 416 U. S. 505, 416 U. S. 512-514. No such limitation appears with regard to the temporary scheduling power. P. 500 U. S. 169.909 F.2d 759 (CA3 1990), affirmed.O'CONNOR, J., delivered the opinion for a unanimous Court. MARSHALL, J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 500 U. S. 169. Page 500 U. S. 162

1986_85-1043

JUSTICE O'CONNOR delivered the opinion of the Court.This case presents the question whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq., preempts state common law tort and contract actions asserting improper processing of a claim for benefits under an insured employee benefit plan.IIn March, 1975, in Gulfport, Mississippi, respondent Everate W. Dedeaux injured his back in an accident related to his employment for Entex, Inc. (Entex). Entex had at this time a long-term disability employee benefit plan established by purchasing a group insurance policy from petitioner, Pilot Life Insurance Co. (Pilot Life). Entex collected and matched its employees' contributions to the plan and forwarded those funds to Pilot Life; the employer also provided forms to its employees for processing disability claims, and forwarded completed forms to Pilot Life. Pilot Life bore the responsibility of determining who would receive disability benefits. Although Dedeaux sought permanent disability benefits following the 1975 accident, Pilot Life terminated his benefits after two years. During the following three years, Dedeaux's benefits were reinstated and terminated by Pilot Life several times.In 1980, Dedeaux instituted a diversity action against Pilot Life in the United States District Court for the Southern District of Mississippi. Dedeaux's complaint contained three counts: "Tortious Breach of Contract"; "Breach of Fiduciary Duties"; and "Fraud in the Inducement." App. 18-23. Dedeaux sought "[d]amages for failure to provide benefits under the insurance policy in a sum to be determined at the time of trial," "[g]eneral damages for mental and emotional distress and other incidental damages in the sum of $250,000.00," and "[p]unitive and exemplary damages in the Page 481 U. S. 44 sum of $500,000.00." Id. at 23-24. Dedeaux did not assert any of the several causes of action available to him under ERISA, see infra at 481 U. S. 53.At the close of discovery, Pilot Life moved for summary judgment, arguing that ERISA preempted Dedeaux's common law claim for failure to pay benefits on the group insurance policy. The District Court granted Pilot Life summary judgment, finding all Dedeaux's claims preempted. App. to Pet. Cert. 16a.The Court of Appeals for the Fifth Circuit reversed, primarily on the basis of this Court's decision in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). See 770 F.2d 1311 (1985). We granted certiorari, 478 U.S. 1004 (1986), and now reverse.IIIn ERISA, Congress set out to"protect . . . participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts."§ 2, as set forth in 29 U.S.C. § 1001(b). ERISA comprehensively regulates, among other things, employee welfare benefit plans that, "through the purchase of insurance or otherwise," provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death. § 3(1), 29 U.S.C. § 1002(1).Congress capped off the massive undertaking of ERISA with three provisions relating to the preemptive effect of the federal legislation:"Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and Page 481 U. S. 45 subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . ."§ 514(a), as set forth in 29 U.S.C. § 1144(a) (preemption clause)."Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities."§ 514(b)(2)(A), as set forth in 29 U.S.C. § 1144(b)(2)(A) (saving clause)."Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies."§ 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B) (deemer clause).To summarize the pure mechanics of the provisions quoted above: If a state law "relate[s] to . . . employee benefit plan[s]," it is preempted. § 514(a). The saving clause excepts from the preemption clause laws that "regulat[e] insurance." § 514(b)(2)(A). The deemer clause makes clear that a state law that "purport[s] to regulate insurance" cannot deem an employee benefit plan to be an insurance company. § 514(b)(2)(B)."[T]he question whether a certain state action is preempted by federal law is one of congressional intent. "The purpose of Congress is the ultimate touchstone.'"" Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 471 U. S. 208 (1985), quoting Malone v. White Motor Corp., 435 U. S. 497, 435 U. S. 504 (1978), quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 375 U. S. 103 (1963). We have observed in the past that the express preemption Page 481 U. S. 46 provisions of ERISA are deliberately expansive, and designed to "establish pension plan regulation as exclusively a federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504, 451 U. S. 523 (1981). As we explained in Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 463 U. S. 98 (1983):"The bill that became ERISA originally contained a limited preemption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected those provisions in favor of the present language, and indicated that section's preemptive scope was as broad as its language. See H.R.Conf.Rep. No. 93-1280, p. 383 (1974); S.Conf.Rep. No. 93-1090, p. 383 (1974)."The House and Senate sponsors emphasized both the breadth and importance of the preemption provisions. Representative Dent described the "reservation to Federal authority [of] the sole power to regulate the field of employee benefit plans" as ERISA's "crowning achievement." 120 Cong.Rec. 29197 (1974). Senator Williams said:"It should be stressed that, with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law."Id. at 29933. See also Shaw v. Delta Air Lines, Inc., supra, at 463 U. S. 99-100, n. 20 (describing remarks of Sen. Javits).In Metropolitan Life, this Court, noting that the preemption and saving clauses "perhaps are not a model of legislative drafting," 471 U.S. at 471 U. S. 739, interpreted these clauses in relation to a Massachusetts statute that required minimum Page 481 U. S. 47 mental health care benefits to be provided Massachusetts residents covered by general health insurance policies. The appellants in Metropolitan Life argued that the state statute, as applied to insurance policies purchased by employee health care plans regulated by ERISA, was preempted.The Court concluded, first, that the Massachusetts statute did "relate to . . . employee benefit plan[s]," thus placing the state statute within the broad sweep of the preemption clause, § 514(a). Metropolitan Life, supra, at 471 U. S. 739. However, the Court held that, because the state statute was one that "regulate[d] insurance," the saving clause prevented the state law from being preempted. In determining whether the Massachusetts statute regulated insurance, the Court was guided by case law interpreting the phrase "business of insurance" in the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S.C. § 1011 et seq.Given the "statutory complexity" of ERISA's three preemption provisions, Metropolitan Life, supra, at 471 U. S. 740, as well as the wide variety of state statutory and decisional law arguably affected by the federal preemption provisions, it is not surprising that we are again called on to interpret these provisions.IIIThere is no dispute that the common law causes of action asserted in Dedeaux's complaint "relate to" an employee benefit plan, and therefore fall under ERISA's express preemption clause, § 514(a). In both Metropolitan Life, supra, and Shaw v. Delta Air Lines, Inc., supra, at 463 U. S. 96-100, we noted the expansive sweep of the preemption clause. In both cases"[t]he phrase 'relate to' was given its broad common-sense meaning, such that a state law 'relate[s] to' a benefit plan 'in the normal sense of the phrase, if it has a connection with or reference to such a plan.'"Metropolitan Life, supra, at 471 U. S. 739, quoting Shaw v. Delta Air Lines, supra, at 463 U. S. 97. In particular, we have emphasized that the preemption clause is not limited to "state laws specifically designed Page 481 U. S. 48 to affect employee benefit plans." Shaw v. Delta Air Lines, supra, at 463 U. S. 98. The common law causes of action raised in Dedeaux's complaint, each based on alleged improper processing of a claim for benefits under an employee benefit plan, undoubtedly meet the criteria for preemption under § 514(a).Unless these common law causes of action fall under an exception to § 514(a), therefore, they are expressly preempted. Although Dedeaux's complaint pleaded several state common law causes of action, before this Court Dedeaux has described only one of the three counts -- called "tortious breach of contract" in the complaint, and "the Mississippi law of bad faith" in respondent's brief -- as protected from the preemptive effect of § 514(a). The Mississippi law of bad faith, Dedeaux argues, is a law "which regulates insurance," and thus is saved from preemption by § 514(b)(2)(A). [Footnote 1]In Metropolitan Life, we were guided by several considerations in determining whether a state law falls under the saving clause. First, we took what guidance was available from a "common-sense view" of the language of the saving clause itself. 471 U.S. at 471 U. S. 740. Second, we made use of the case law interpreting the phrase "business of insurance" under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq., in interpreting the saving clause. [Footnote 2] Three criteria have been used to determine whether a practice falls under the "business of insurance" for purposes of the McCarran-Ferguson Act:"[F]irst, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether"the practice is an integral part of the policy relationship Page 481 U. S. 49 between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 458 U. S. 129 (1982) (emphasis in original).In the present case, the considerations weighed in Metropolitan Life argue against the assertion that the Mississippi law of bad faith is a state law that "regulates insurance."As early as 1915, the Mississippi Supreme Court had recognized that punitive damages were available in a contract case when "the act or omission constituting the breach of the contract amounts also to the commission of a tort." See Nood v. Moffett, 109 Miss. 757, 767, 69 So. 664, 666 (1915) (involving a physician's breach of a contract to attend to a woman at her approaching "accouchement"). In American Railway Express Co. v. Bailey, 142 Miss. 622, 631, 107 So. 761, 763 (1926), a case involving a failure of a finance company to deliver to the plaintiff the correct amount of money cabled to the plaintiff through the finance company's offices, the Mississippi Supreme Court explained that punitive damages could be available when the breach of contract was "attended by some intentional wrong, insult, abuse, or gross negligence, which amounts to an independent tort." In Standard Life Insurance Co. v. Veal, 354 So. 2d 239 (1977), the Mississippi Supreme Court, citing D. L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So. 2d 770 (1944) (breach of contract was accompanied by "the breaking down and destruction of another's fence"), American Railway Express Co. v. Bailey, supra, and Hood v. Moffett, supra, upheld an award of punitive damages against a defendant insurance company for failure to pay on a credit life policy. Since Veal, the Mississippi Supreme Court has considered a large number of cases in which plaintiffs have sought punitive damages from insurance companies for failure to pay a claim under an insurance contract, and in a great many of these cases the court has used the identical formulation, first stated in Bailey, of what must "attend" the breach of contract in order for punitive Page 481 U. S. 50 damages to be recoverable. See, e.g., Employers Mutual Casualty Co. v. Tompkins, 490 So. 2d 897, 902 (1986); State Farm Fire & Casualty Co. v. Simpson, 477 So. 2d 242, 248 (1985); Consolidated American Life Ins. Co. v. Toche, 410 So. 2d 1303, 1304 (1982); Gulf Guaranty Life Ins. Co. v. Kelley, 389 So. 2d 920, 922 (1980); State Farm Mutual Automobile Ins. Co. v. Roberts, 379 So. 2d 321, 322 (1980); New Hampshire Ins. Co. v. Smith, 357 So. 2d 119, 121 (1978); Lincoln National Life Ins. Co. v. Crews, 341 So. 2d 1321, 1322 (1977). Recently, the Mississippi Supreme Court stated that"[w]e have come to term an insurance carrier which refuses to pay a claim when there is no reasonably arguable basis to deny it as acting in 'bad faith,' and a lawsuit based upon such an arbitrary refusal as a 'bad faith' cause of action."Blue Cross & Blue Shield of Mississippi, Inc. v. Campbell, 466 So. 2d 833, 842 (1984).Certainly a common-sense understanding of the phrase "regulates insurance" does not support the argument that the Mississippi law of bad faith falls under the saving clause. A common-sense view of the word "regulates" would lead to the conclusion that, in order to regulate insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry. Even though the Mississippi Supreme Court has identified its law of bad faith with the insurance industry, the roots of this law are firmly planted in the general principles of Mississippi tort and contract law. Any breach of contract, and not merely breach of an insurance contract, may lead to liability for punitive damages under Mississippi law.Neither do the McCarran-Ferguson Act factors support the assertion that the Mississippi law of bad faith "regulates insurance." Unlike the mandated-benefits law at issue in Metropolitan Life, the Mississippi common law of bad faith does not effect a spreading of policyholder risk. The state common law of bad faith may be said to concern "the policy relationship between the insurer and the insured. " The connection Page 481 U. S. 51 to the insurer-insured relationship is attenuated, at best, however. In contrast to the mandated-benefits law in Metropolitan Life, the common law of bad faith does not define the terms of the relationship between the insurer and the insured; it declares only that, whatever terms have been agreed upon in the insurance contract, a breach of that contract may in certain circumstances allow the policyholder to obtain punitive damages. The state common law of bad faith is therefore no more "integral" to the insurer-insured relationship than any State's general contract law is integral to a contract made in that State. Finally, as we have just noted, Mississippi's law of bad faith, even if associated with the insurance industry, has developed from general principles of tort and contract law available in any Mississippi breach of contract case. Cf. Hart v. Orion Ins. Co., 453 F.2d 1358 (CA10 1971) (general state arbitration statutes do not regulate the business of insurance under the McCarran-Ferguson Act); Hamilton Life Ins. Co. v. Republic National Life Ins. Co., 408 F.2d 606 (CA2 1969) (same). Accordingly, the Mississippi common law of bad faith, at most, meets one of the three criteria used to identify the "business of insurance" under the McCarran-Ferguson Act, and used in Metropolitan Life to identify laws that "regulat[e] insurance" under the saving clause.In the present case, moreover, we are obliged in interpreting the saving clause to consider not only the factors by which we were guided in Metropolitan Life, but also the role of the saving clause in ERISA as a whole. On numerous occasions we have noted that"""[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy."'"" Kelly v. Robinson, 479 U. S. 36, 479 U. S. 43 (1986), quoting Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 477 U. S. 221 (1986) (quoting Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 350 U. S. 285 (1956) (in turn quoting United States v. Heirs of Boisdore, 8 How. 113, 49 U. S. 122 (1849))). Because, in this case, Page 481 U. S. 52 the state cause of action seeks remedies for the improper processing of a claim for benefits under an ERISA-regulated plan, our understanding of the saving clause must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA § 502(a), 29 U.S.C. § 1132(a).The Solicitor General, for the United States as amicus curiae, argues that Congress clearly expressed an intent that the civil enforcement provisions of ERISA § 502(a) be the exclusive vehicle for actions by ERISA-plan participants and beneficiaries asserting improper processing of a claim for benefits, and that varying state causes of action for claims within the scope of § 502(a) would pose an obstacle to the purposes and objectives of Congress. Brief for United States as Amicus Curiae 18-19. We agree. The conclusion that § 502(a) was intended to be exclusive is supported, first, by the language and structure of the civil enforcement provisions, and second, by legislative history in which Congress declared that the preemptive force of § 502(a) was modeled on the exclusive remedy provided by § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185.The civil enforcement scheme of § 502(a) is one of the essential tools for accomplishing the stated purposes of ERISA. [Footnote 3] The civil enforcement scheme is sandwiched between Page 481 U. S. 53 two other ERISA provisions relevant to enforcement of ERISA and to the processing of a claim for benefits under an employee benefit plan. Section 501, 29 U.S.C. § 1131, authorizes criminal penalties for violations of the reporting and disclosure provisions of ERISA. Section 503, 29 U.S.C. § 1133, requires every employee benefit plan to comply with Department of Labor regulations on giving notice to any participant or beneficiary whose claim for benefits has been denied, and affording a reasonable opportunity for review of the decision denying the claim. Under the civil enforcement provisions of § 502(a), a plan participant or beneficiary may sue to recover benefits due under the plan, to enforce the participant's rights under the plan, or to clarify rights to future benefits. Relief may take the form of accrued benefits due, a declaratory judgment on entitlement to benefits, or an injunction against a plan administrator's improper refusal to pay benefits. A participant or beneficiary may also bring a cause of action for breach of fiduciary duty, and under this cause of action may seek removal of the fiduciary. §§ 502(a)(2), 409. In an action under these civil enforcement provisions, the court in its discretion may allow an award of attorney's fees to either party. § 502(g). See Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134, 473 U. S. 147 (1985). In Russell, we concluded that ERISA's breach of fiduciary duty provision, § 409(a), 29 U.S.C. Page 481 U. S. 54 § 1109(a), provided no express authority for an award of punitive damages to a beneficiary. Moreover, we declined to find an implied cause of action for punitive damages in that section, noting that"'[t]he presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.'"Russell, supra, at 473 U. S. 147, quoting Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 451 U. S. 97 (1981). Our examination of these provisions made us "reluctant to tamper with an enforcement scheme crafted with such evident care as the one in ERISA." Russell, supra, at 473 U. S. 147.In sum, the detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA."The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly."Russell, supra, at 473 U. S. 146 (emphasis in original).The deliberate care with which ERISA's civil enforcement remedies were drafted and the balancing of policies embodied in its choice of remedies argue strongly for the conclusion that ERISA's civil enforcement remedies were intended to be exclusive. This conclusion is fully confirmed by the legislative history of the civil enforcement provision. The legislative history demonstrates that the preemptive force of § 502(a) was modeled after § 301 of the LMRA. Page 481 U. S. 55The Conference Report on ERISA describing the civil enforcement provisions of § 502(a) says:"Under the conference agreement, civil actions may be brought by a participant or beneficiary to recover benefits due under the plan, to clarify rights to receive future benefits under the plan, and for relief from breach of fiduciary responsibility. . . . [W]ith respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of the title I provisions, they may be brought not only in U.S. district courts, but also in State courts of competent jurisdiction. All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947."H.R.Conf.Rep. No. 93-1280, p. 327 (1974) (emphasis added).Congress was well aware that the powerful preemptive force of § 301 of the LMRA displaced all state actions for violation of contracts between an employer and a labor organization, even when the state action purported to authorize a remedy unavailable under the federal provision. Section 301 preempts any"state law claim [whose resolution] is substantially dependent upon the analysis of the terms of an agreement made between the parties in a labor contract."Allis-Chalmers Corp. v. Lueck, 471 U.S. at 471 U. S. 220. As we observed in Allis-Chalmers, the broad preemptive effect of § 301 was first analyzed in Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962). In Lucas Flour, the Court found that"[t]he dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute."Id. at 369 U. S. 103. "[I]n enacting § 301, Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." Id. at 369 U. S. 104. Indeed, for purposes of determining federal jurisdiction, this Court has singled out § 301 of the LMRA as having"preemptive Page 481 U. S. 56 force . . . so powerful as to displace entirely any state cause of action 'for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law. . . ."Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 463 U. S. 23 (1983), referring to Avco Corp. v. Machinists, 390 U. S. 557 (1968).Congress' specific reference to § 301 of the LMRA to describe the civil enforcement scheme of ERISA makes clear its intention that all suits brought by beneficiaries or participants asserting improper processing of claims under ERISA-regulated plans be treated as federal questions governed by § 502(a). See also H.R.Rep. No. 93-533, p. 12 (1973), reprinted in 2 Senate Committee on Labor and Public Welfare, Legislative History of ERISA, 94th Cong., 2d Sess., 2359 (Comm. Print 1976) ("The uniformity of decision which the Act is designed to foster will help administrators, fiduciaries and participants to predict the legality of proposed actions without the necessity of reference to varying state laws"); 120 Cong.Rec. 29933 (1974) (remarks of Sen. Williams) (suits involving claims for benefits "will be regarded as arising under the laws of the United States, in similar fashion to those brought under section 301 of the Labor Management Relations Act"); id. at 29942 (remarks of Sen. Javits) ("[i]t is also intended that a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans"). The expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop, indeed, the entire comparison of ERISA's § 502(a) to § 301 of the LMRA, would make little sense if the remedies available to ERISA participants and beneficiaries under § 502(a) could be supplemented or supplanted by varying state laws.In Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 471 U. S. 746, this Court rejected an interpretation of the saving clause of ERISA's express preemption provisions, § 514(b) (2)(A), 29 U.S.C. § 1144(b)(2)(A), that saved from preemption Page 481 U. S. 57 "only state regulations unrelated to the substantive provisions of ERISA," finding that "[n]othing in the language, structure, or legislative history of the Act" supported this reading of the saving clause. Metropolitan Life, however, did not involve a state law that conflicted with a substantive provision of ERISA. Therefore the Court's general observation -- that state laws related to ERISA may also fall under the saving clause -- was not focused on any particular relationship or conflict between a substantive provision of ERISA and a state law. In particular, the Court had no occasion to consider in Metropolitan Life the question raised in the present case: whether Congress might clearly express, through the structure and legislative history of a particular substantive provision of ERISA, an intention that the federal remedy provided by that provision displace state causes of action. Our resolution of this different question does not conflict with the Court's earlier general observations in Metropolitan Life.Considering the common-sense understanding of the saving clause, the McCarran-Ferguson Act factors defining the business of insurance, and, most importantly, the clear expression of congressional intent that ERISA's civil enforcement scheme be exclusive, we conclude that Dedeaux's state law suit asserting improper processing of a claim for benefits under an ERISA-regulated plan is not saved by § 514(b)(2)(A), and therefore is preempted by § 514(a). [Footnote 4] Accordingly, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtPilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987)Pilot Life Insurance Co. v. DedeauxNo. 85-1043.Argued January 21, 1987Decided April 6, 1987481 U.S. 41SyllabusThe "preemption clause" (§ 514(a)) of the Employee Retirement Income Security Act of 1974 (ERISA) provides that ERISA supersedes all state laws insofar as they "relate to any employee benefit plan," but ERISA's "saving clause" (§ 514(b)(2)(A)) excepts from the preemption clause any state law that "regulates insurance." ERISA's "deemer clause" (§ 514(b)(2)(B)) provides that no employee benefit plan shall be deemed to be an insurance company for purposes of any state law "purporting to regulate insurance." On the basis of a work-related injury occurring in Mississippi in 1975, respondent began receiving permanent disability benefits under his employer's ERISA-regulated welfare benefit plan, under which claims were handled by petitioner, the employer's insurer. However, after two years, petitioner terminated respondent's benefits, and during the following three years his benefits were reinstated and terminated by petitioner several times. Respondent ultimately instituted a diversity action against petitioner in Federal District Court, alleging tort and breach of contract claims under Mississippi common law for petitioner's failure to pay benefits under the insurance policy. The court granted summary judgment for petitioner, finding that respondent's common law claims were preempted by ERISA. The Court of Appeals reversed.Held: ERISA preempts respondent's suit under state common law for alleged improper processing of his claim for benefits under the ERISA-regulated benefit plan. Pp. 481 U. S. 44-57.(a) The common law causes of action asserted in respondent's complaint, each based on alleged improper processing of a benefit claim under an employee benefit plan, "relate to" an employee benefit plan, and therefore fall under ERISA's preemption clause. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 471 U. S. 739; Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 463 U. S. 96-100. The preemption clause is not limited to state laws specifically designed to affect employee benefit plans. Pp. 481 U. S. 47-48.(b) Under the guidelines set forth in Metropolitan Life, respondent's causes of action under state decisional common law -- particularly the cause, presently asserted, based on the Mississippi law of bad faith -- do not fall under ERISA's saving clause, and thus are not excepted from Page 481 U. S. 42 preemption. A common-sense understanding of the language of the saving clause excepting from preemption a state law that "regulates insurance" does not support the argument that the Mississippi law of bad faith falls under the clause. To "regulate" insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry. Mississippi Supreme Court decisions establish that its law of bad faith applies to any breach of contract, not merely a breach of an insurance contract. Neither do the factors for interpreting the phrase "business of insurance" under the McCarran-Ferguson Act (which factors are appropriate for consideration here) support the assertion that the Mississippi law of bad faith "regulates insurance" for purposes of ERISA's saving clause. Pp. 481 U. S. 48-51.(c) Moreover, interpretation of the saving clause must be informed by the legislative intent concerning ERISA's civil enforcement provisions. The language and structure of those provisions support the conclusion that they were intended to provide exclusive remedies for ERISA-plan participants and beneficiaries asserting improper processing of benefit claims. ERISA's detailed provisions set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. The conclusion that ERISA's civil enforcement provisions were intended to be exclusive is also confirmed by the legislative history of those provisions, particularly the history demonstrating that the preemptive force of ERISA's enforcement provisions was modeled after the powerful preemptive force of § 301 of the Labor Management Relations Act, 1947. Pp. 481 U. S. 51-56.770 F.2d 1311, reversed.O'CONNOR, J., delivered the opinion for a unanimous Court. Page 481 U. S. 43

1975_75-817

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The respondent State District Judge entered an order restraining the petitioners from publishing or broadcasting accounts of confessions or admissions made by the accused or facts "strongly implicative" of the accused in a widely reported murder of six persons. We granted certiorari to decide whether the entry of such an order on the showing made before the state court violated the constitutional guarantee of freedom of the press. Page 427 U. S. 542IOn the evening of October 18, 1975, local police found the six members of the Henry Kellie family murdered in their home in Sutherland, Neb. a town of about 850 people. Police released the description of a suspect, Erwin Charles Simants, to the reporters who had hastened to the scene of the crime. Simants was arrested and arraigned in Lincoln County Court the following morning, ending a tense night for this small rural community.The crime immediately attracted widespread news coverage, by local, regional, and national newspapers, radio and television stations. Three days after the crime, the County Attorney and Simants' attorney joined in asking the County Court to enter a restrictive order relating to "matters that may or may not be publicly reported or disclosed to the public," because of the "mass coverage by news media" and the"reasonable likelihood of prejudicial news which would make difficult, if not impossible, the impaneling of an impartial jury and tend to prevent a fair trial."The County Court heard oral argument, but took no evidence; no attorney for members of the press appeared at this stage. The County Court granted the prosecutor's motion for a restrictive order and entered it the next day, October 22. The order prohibited everyone in attendance from"releas[ing] or authoriz[ing] the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced;"the order also required members of the press to observe the Nebraska Bar-Press Guidelines. [Footnote 1] Page 427 U. S. 543Simants' preliminary hearing was held the same day, open to the public but subject to the order. The County Court bound over the defendant for trial to the State District Court. The charges, as amended to reflect the autopsy findings, were that Simants had committed the murders in the course of a sexual assault.Petitioners -- several press and broadcast associations, publishers, and individual reporters -- moved on October 23 for leave to intervene in the District Court, asking that the restrictive order imposed by the County Court be vacated. The District Court conducted a hearing, at which the County Judge testified and newspaper articles about the Simants case were admitted in evidence. The District Judge granted petitioners' motion to intervene and, on October 27, entered his own restrictive order. The judge found, "because of the nature of the crimes charged in the complaint that there, is a clear and present danger that pretrial publicity could impinge upon the defendant's right to a fair trial." The order applied only until the jury was impaneled, and specifically prohibited petitioners from reporting five subjects: (1) the existence or contents of a confession Simants had made to law enforcement officers, which had been introduced in open court at arraignment; (2) the fact or nature of statements Simants had made to other persons; (3) the contents of a note he had written the night of the crime; (4) certain aspects of the medical testimony at the preliminary hearing; and (5) the identity of the Page 427 U. S. 544 victims of the alleged sexual assault and the nature of the assault. It also prohibited reporting the exact nature of the restrictive order itself. Like the County Court's order, this order incorporated the Nebraska Bar-Press Guidelines. Finally, the order set out a plan for attendance, seating, and courthouse traffic control during the trial.Four days later, on October 31, petitioners asked the District Court to stay its order. At the same time, they applied to the Nebraska Supreme Court for a writ of mandamus, a stay, and an expedited appeal from the order. The State of Nebraska and the defendant Simants intervened in these actions. The Nebraska Supreme Court heard oral argument on November 25, and issued its per curiam opinion December 1. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). [Footnote 2] Page 427 U. S. 545The Nebraska Supreme Court balanced the "heavy presumption against . . . constitutional validity" that an order restraining publication bears, New York Times Co. v. United States, 403 U. S. 713, 403 U. S. 714 (1971), against the importance of the defendant's right to trial by an impartial jury. Both society and the individual defendant, the court held, had a vital interest in assuring that Simants be tried by an impartial jury. Because of the publicity surrounding the crime, the court determined that this right was in jeopardy. The court noted that Nebraska statutes required the District Court to try Simants within six months of his arrest, and that a change of venue could move the trial only to adjoining counties, which had been subject to essentially the same publicity as Lincoln County. The Nebraska Supreme Court held that "[u]nless the absolutist position of the relators was constitutionally correct, it would appear that the District Court acted properly." 194 Neb. at 797, 236 N.W.2d at 803.The Nebraska Supreme Court rejected that "absolutist position," but modified the District Court's order to accommodate the defendant's right to a fair trial and the petitioners' interest in reporting pretrial events. The order as modified prohibited reporting of only three matters: (a) the existence and nature of any confessions or admissions made by the defendant to law enforcement officers, (b) any confessions or admissions made to any third parties, except members of the press, and (c) other facts "strongly implicative" of the accused. The Nebraska Supreme Court did not rely on the Nebraska Bar Press Guidelines. See n 1, supra. After construing Nebraska law to permit closure in certain circumstances, the court remanded the case to the District Judge for reconsideration of the issue whether pretrial hearings should be closed to the press and public. Page 427 U. S. 546We granted certiorari to address the important issues raised by the District Court order as modified by the Nebraska Supreme Court, but we denied the motion to expedite review or to stay entirely the order of the State District Court pending Simants' trial. 423 U. S. 1027 (1975). We are informed by the parties that, since we granted certiorari, Simants has been convicted of murder and sentenced to death. His appeal is pending in the Nebraska Supreme Court.IIThe order at issue in this case expired by its own terms when the jury was impaneled on January 7, 1976. There were no restraints on publication once the jury was selected, and there are now no restrictions on what may be spoken or written about the Simants case. Intervenor Simants argues that for this reason the case is moot.Our jurisdiction under Art. III, § 2, of the Constitution extends only to actual cases and controversies. Indianapolis School Comm'rs v. Jacobs, 420 U. S. 128 (1975); Sosna v. Iowa, 419 U. S. 393, 419 U. S. 397-403 (1975). The Court has recognized, however, that jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515 (1911).The controversy between the parties to this case is "capable of repetition" in two senses. First, if Simants' conviction is reversed by the Nebraska Supreme Court and a new trial ordered, the District Court may enter another restrictive order to prevent a resurgence of prejudicial publicity before Simants' retrial. Second, the State of Nebraska is a party to this case; the Nebraska Supreme Court's decision authorizes state prosecutors to Page 427 U. S. 547 seek restrictive orders in appropriate cases. The dispute between the State and the petitioners who cover events throughout the State is thus "capable of repetition." Yet, if we decline to address the issues in this case on grounds of mootness, the dispute will evade review, or at least considered plenary review in this Court, since these orders are by nature short-lived. See, e.g., Weinstein v. Bradford, 423 U. S. 147 (1975); Sosna v. Iowa, supra; Roe v. Wade, 410 U. S. 113, 410 U. S. 125 (1973); Moore v. Ogilvie, 394 U. S. 814, 394 U. S. 816 (1969); Carroll v. Princess Anne, 393 U. S. 175, 393 U. S. 178-179 (1968). We therefore conclude that this case is not moot, and proceed to the merits.IIIThe problems presented by this case are almost as old as the Republic. Neither in the Constitution nor in contemporaneous writings do we find that the conflict between these two important rights was anticipated, yet it is inconceivable that the authors of the Constitution were unaware of the potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press. The unusually able lawyers who helped write the Constitution and later drafted the Bill of Rights were familiar with the historic episode in which John Adams defended British soldiers charged with homicide for firing into a crowd of Boston demonstrators; they were intimately familiar with the clash of the adversary system and the part that passions of the populace sometimes play in influencing potential jurors. They did not address themselves directly to the situation presented by this case; their chief concern was the need for freedom of expression in the political arena and the dialogue in ideas. But they recognized that there were risks to private rights from an unfettered press. Jefferson, for example, Page 427 U. S. 548 writing from Paris in 1786 concerning press attacks on John Jay, stated:"In truth, it is afflicting that a man who has past his life in serving the public . . . should yet be liable to have his peace of mind so much disturbed by any individual who shall think proper to arraign him in a newspaper. It is, however, an evil for which there is no remedy. Our liberty depends on the freedom of the press, and that cannot be limited without being lost. . . ."9 Papers of Thomas Jefferson 239 (J. Boyd ed.1954). See also F. Mott, Jefferson and the Press 21, 38-46 (1943).The trial of Aaron Burr in 1807 presented Mr. Chief Justice Marshall, presiding as a trial judge, with acute problems in selecting an unbiased jury. Few people in the area of Virginia from which jurors were drawn had not formed some opinions concerning Mr. Burr or the case, from newspaper accounts and heightened discussion both private and public. The Chief Justice conducted a searching voir dire of the two panels eventually called, and rendered a substantial opinion on the purposes of voir dire and the standards to be applied. See 1 Causes Celebres, Trial of Aaron Burr for Treason 40427, 473481 (1879); United States v. Burr, 25 F. Cas. 49 (No. 14,692g) (CC Va. 1807). Burr was acquitted, so there was no occasion for appellate review to examine the problem of prejudicial pretrial publicity. Mr. Chief Justice Marshall's careful voir dire inquiry into the matter of possible bias makes clear that the problem is not a new one.The speed of communication and the pervasiveness of the modern news media have exacerbated these problems, however, as numerous appeals demonstrate. The trial of Bruno Hauptmann in a small New Jersey community for Page 427 U. S. 549 the abduction and murder of the Charles Lindberghs' infant child probably was the most widely covered trial up to that time, and the nature of the coverage produced widespread public reaction. Criticism was directed at the "carnival" atmosphere that pervaded the community and the courtroom itself. Responsible leaders of press and the legal profession -- including other judges -- pointed out that much of this sorry performance could have been controlled by a vigilant trial judge and by other public officers subject to the control of the court. See generally Hudson, Freedom of the Press Versus Fair Trial: The Remedy Lies With the Courts, 1 Val.U.L.Rev. 8, 114 (1966); Hallam, Some Object Lessons on Publicity in Criminal Trials, 24 Minn.L.Rev. 453 (1940); Lippmann, The Lindbergh Case in Its Relation to American Newspapers, in Problems of Journalism 154-156 (1936).The excesses of press and radio and lack of responsibility of those in authority in the Hauptmann case and others of that era led to efforts to develop voluntary guidelines for courts, lawyers, press, and broadcasters. See generally J. Lofton, Justice and the Press 117-130 (1966). [Footnote 3] The effort was renewed in 1965, when the American Bar Association embarked on a project to develop standards for all aspects of criminal justice, including guidelines to accommodate the right to a fair trial and the rights of a free press. See Powell, The Right to a Page 427 U. S. 550 Fair Trial, 51 A.B.A.J. 534 (1965). The resulting standards, approved by the Association in 1968, received support from most of the legal profession. American Bar Association Project on Standards for Criminal Justice, Fair Trial and Free Press (Approved Draft 1968). Other groups have undertaken similar studies. See Report of the Judicial Conference Committee on the Operation of the Jury System, "Free Press-Fair Trial" Issue, 45 F.R.D. 391 (1968); Special Committee on Radio, Television, and the Administration of Justice of the Association of the Bar of the City of New York, Freedom of the Press and Fair Trial (1967). In the wake of these efforts, the cooperation between bar associations and members of the press led to the adoption of voluntary guidelines like Nebraska's. See n 1, supra; American Bar Association Legal Advisory Committee on Fair Trial and Free Press, The Rights of Fair Trial and Free Press 1-6 (1969).In practice, of course, even the most ideal guidelines are subjected to powerful strains when a case such as Simants' arises, with reporters from many parts of the country on the scene. Reporters from distant places are unlikely to consider themselves bound by local standards. They report to editors outside the area covered by the guidelines, and their editors are likely to be guided only by their own standards. To contemplate how a state court can control acts of a newspaper or broadcaster outside its jurisdiction, even though the newspapers and broadcasts reach the very community from which jurors are to be selected, suggests something of the practical difficulties of managing such guidelines.The problems presented in this case have a substantial history outside the reported decisions of courts, in the efforts of many responsible people to accommodate the competing interests. We cannot resolve all of them, for Page 427 U. S. 551 it is not the function of this Court to write a code. We look instead to this particular case and the legal context in which it arises.IVThe Sixth Amendment in terms guarantees "trial, by an impartial jury . . ." in federal criminal prosecutions. Because "trial by jury in criminal cases is fundamental to the American scheme of justice," the Due Process Clause of the Fourteenth Amendment guarantees the same right in state criminal prosecutions. Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 149 (1968)."In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. . . . 'A fair trial in a fair tribunal is a basic requirement of due process.' In re Murchison, 349 U. S. 133, 349 U. S. 136. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne.' Co.Litt. 155b. His verdict must be based upon the evidence developed at the trial."Irvin v. Dowd, 366 U. S. 717, 366 U. S. 722 (1961).In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right. But when the case is a "sensational" one, tensions develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment. The relevant decisions of this Court, even if not dispositive, are instructive by way of background.In Irvin v. Dowd, supra, for example, the defendant was convicted of murder following intensive and hostile news coverage. The trial judge had granted a defense motion for a change of venue, but only to an Page 427 U. S. 552 adjacent county, which had been exposed to essentially the same news coverage. At trial, 430 persons were called for jury service; 268 were excused because they had fixed opinions as to guilt. Eight of the 12 who served as jurors thought the defendant guilty, but said they could nevertheless render an impartial verdict. On review, the Court vacated the conviction and death sentence and remanded to allow a new trial for, "[w]ith his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion. . . ." 366 U.S. at 366 U. S. 728.Similarly, in Rideau v. Louisiana, 373 U. S. 723 (1963), the Court reversed the conviction of a defendant whose staged, highly emotional confession had been filmed with the cooperation of local police and later broadcast on television for three days while he was awaiting trial, saying "[a]ny subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality." Id. at 373 U. S. 726. And in Estes v. Texas, 381 U. S. 532 (1965), the Court held that the defendant had not been afforded due process where the volume of trial publicity, the judge's failure to control the proceedings, and the telecast of a hearing and of the trial itself "inherently prevented a sober search for the truth." Id. at 381 U. S. 551. See also Marshall v. United States, 360 U. S. 310 (1959)In Sheppard v. Maxwell, 384 U. S. 333 (1966), the Court focused sharply on the impact of pretrial publicity and a trial court's duty to protect the defendant's constitutional right to a fair trial. With only Mr. Justice Black dissenting, and he without opinion, the Court ordered a new trial for the petitioner, even though the first trial had occurred 12 years before. Beyond doubt, the press had shown no responsible concern for the constitutional guarantee of a fair trial; the community Page 427 U. S. 553 from which the jury was drawn had been inundated by publicity hostile to the defendant. But the trial judge"did not fulfill his duty to protect [the defendant] from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom."Id. at 384 U. S. 363. The Court noted that "unfair and prejudicial news comment on pending trials has become increasingly prevalent," id. at 384 U. S. 362, and issued a strong warning:"Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. . . . Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the Page 427 U. S. 554 court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures."Id. at 384 U. S. 362-363 (emphasis added). Because the trial court had failed to use even minimal efforts to insulate the trial and the jurors from the "deluge of publicity," id. at 384 U. S. 357, the Court vacated the judgment of conviction and a new trial followed, in which the accused was acquitted.Cases such as these are relatively rare, and we have held in other cases that trials have been fair in spite of widespread publicity. In Stroble v. California, 343 U. S. 181 (1952), for example, the Court affirmed a conviction and death sentence challenged on the ground that pretrial news accounts, including the prosecutor's release of the defendant's recorded confession, were allegedly so inflammatory as to amount to a denial of due process. The Court disapproved of the prosecutor's conduct, but noted that the publicity had receded some six weeks before trial, that the defendant had not moved for a change of venue, and that the confession had been found voluntary and admitted in evidence at trial. The Court also noted the thorough examination of jurors on voir dire and the careful review of the facts by the state courts, and held that petitioner had failed to demonstrate a denial of due process. See also Murphy v. Florida, 421 U. S. 794 (1975); Beck v. Washington, 369 U. S. 541 (1962).Taken together, these cases demonstrate that pretrial publicity even pervasive, adverse publicity -- does not inevitably lead to an unfair trial. The capacity of the jury eventually impaneled to decide the case fairly is influenced by the tone and extent of the publicity, Page 427 U. S. 555 which is in part, and often in large part, shaped by what attorneys, police, and other officials do to precipitate news coverage. The trial judge has a major responsibility. What the judge says about a case, in or out of the courtroom, is likely to appear in newspapers and broadcasts. More important, the measures a judge takes or fails to take to mitigate the effects of pretrial publicity -- the measures described in Sheppard -- may well determine whether the defendant receives a trial consistent with the requirements of due process. That this responsibility has not always been properly discharged is apparent from the decisions just reviewed.The costs of failure to afford a fair trial are high. In the most extreme cases, like Sheppard and Estes, the risk of injustice was avoided when the convictions were reversed. But a reversal means that justice has been delayed for both the defendant and the State; in some cases, because of lapse of time retrial is impossible or further prosecution is gravely handicapped. Moreover, in borderline cases in which the conviction is not reversed, there is some possibility of an injustice unredressed. The "strong measures" outlined in Sheppard v. Maxwell are means by which a trial judge can try to avoid exacting these costs from society or from the accused.The state trial judge in the case before us acted responsibly, out of a legitimate concern, in an effort to protect the defendant's right to a fair trial. [Footnote 4] What we must decide is not simply whether the Nebraska courts erred Page 427 U. S. 556 in seeing the possibility of real danger to the defendant's rights, but whether in the circumstances of this case the means employed were foreclosed by another provision of the Constitution.VThe First Amendment provides that "Congress shall make no law . . . abridging the freedom . . . of the press," and it is"no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action."Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 707 (1931). See also Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 244 (1936). The Court has interpreted these guarantees to afford special protection against orders that prohibit the publication or broadcast of particular information or commentary -- orders that impose a "previous" or "prior" restraint on speech. None of our decided cases on prior restraint involved restrictive orders entered to protect a defendant's right to a fair and impartial jury, but the opinions on prior restraint have a common thread relevant to this case.In Near v. Minnesota ex rel. Olson, supra, the Court held invalid a Minnesota statute providing for the abatement as a public nuisance of any "malicious, scandalous and defamatory newspaper, magazine or other periodical." Near had published an occasional weekly newspaper described by the County Attorney's complaint as "largely devoted to malicious, scandalous and defamatory articles" concerning political and other public figures. 283 U.S. at 283 U. S. 703. Publication was enjoined pursuant to the statute. Excerpts from Near's paper, set out in the dissenting opinion of Mr. Justice Butler, show beyond question that one of its principal characteristics was blatant anti-Semitism. See id. at 283 U. S. 723, 283 U. S. 724-727, n. 1. Page 427 U. S. 557Mr. Chief Justice Hughes, writing for the Court, noted that freedom of the press is not an absolute right, and the State may punish its abuses. He observed that the statute was "not aimed at the redress of individual or private wrongs." Id. at 283 U. S. 708, 283 U. S. 709. He then focused on the statute:"[T]he operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter . . . and unless the owner or publisher is able . . . to satisfy the judge that the [matter is] true and . . . published with good motives . . . his newspaper or periodical is suppressed. . . . This is of the essence of censorship."Id. at 283 U. S. 713. The Court relied on Patterson v. Colorado ex rel. Attorney General, 205 U. S. 454, 205 U. S. 462 (1907):"[T]he main purpose of [the First Amendment] is 'to prevent all such previous restraints upon publications as had been practiced by other governments.' [Footnote 5]"The principles enunciated in Near were so universally accepted that the precise issue did not come before us again until Organization for a Better Austin v. Keefe, Page 427 U. S. 558 402 U. S. 415 (1971). There the state courts had enjoined the petitioners from picketing or passing out literature of any kind in a specified area. Noting the similarity to Near v. Minnesota, a unanimous Court held:"Here, as in that case, the injunction operates not to redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution of literature 'of any kind' in a city of 18,000.""* * * *" "Any prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity. Carroll v. Princess Anne, 393 U. S. 175, 393 U. S. 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70 (1963). Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint. He has not met that burden. . . . Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record."402 U.S. at 402 U. S. 418-420.More recently in New York Times Co. v. United States, 403 U. S. 713 (1971), the Government sought to enjoin the publication of excerpts from a massive, classified study of this Nation's involvement in the Vietnam conflict, going back to the end of the Second World War. The dispositive opinion of the Court simply concluded that the Government had not met its heavy burden of showing justification for the prior restraint. Each of the six concurring Justices and the three dissenting Justices expressed his views separately, but"every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as presumptively unconstitutional."Pittsburgh Press Co. v. Human Rel. Page 427 U. S. 559 Comm'n, 413 U. S. 376, 413 U. S. 396 (1973) (BURGER, C.J., dissenting). The Court's conclusion in New York Times suggests that the burden on the Government is not reduced by the temporary nature of a restraint; in that case the Government asked for a temporary restraint solely to permit it to study and assess the impact on national security of the lengthy documents at issue.The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for the time. [Footnote 6]The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events. Truthful reports of public judicial proceedings have been afforded special protection against subsequent punishment. See Cox Broadcasting Corp v. Cohn, 420 U. S. 469, 420 U. S. 492-493(1975); see also, Craig v. Harney, 331 U. S. 367, 331 U. S. 374 (1947). For the same reasons the protection against prior restraint should have particular force as applied to reporting of criminal proceedings, whether the crime in question is a single isolated act or a pattern of criminal conduct."A responsible press has always been regarded as Page 427 U. S. 560 the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."Sheppard v. Maxwell, 384 U.S. at 384 U. S. 350. The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly -- a duty widely acknowledged but not always observed by editors and publishers. It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.Of course, the order at issue like the order requested in New York Times -- does not prohibit, but only postpones, publication. Some news can be delayed, and most commentary can even more readily be delayed without serious injury, and there often is a self-imposed delay when responsible editors call for verification of information. But such delays are normally slight, and they are self-imposed. Delays imposed by governmental authority are a different matter."We have learned, and continue to learn, from what we view as the unhappy experiences of other nations where government has been allowed to meddle in the internal editorial affairs of newspapers. Regardless of how beneficent-sounding the purposes of controlling the press might be, we . . . remain intensely skeptical about those measures that would allow government to insinuate itself into the editorial Page 427 U. S. 561 rooms of. this Nation's press."Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 418 U. S. 259 (1974) (WHITE, J., concurring). See also Columbia Broadcasting v. Democratic Comm., 412 U. S. 94 (1973). As a practical matter, moreover, the element of time is not unimportant if press coverage is to fulfill its traditional function of bringing news to the public promptly.The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other. In this case, the petitioners would have us declare the right of an accused subordinate to their right to publish in all circumstances. But if the authors of these guarantees, fully aware of the potential conflicts between them, were unwilling or unable to resolve the issue by assigning to one priority over the other, it is not for us to rewrite the Constitution by undertaking what they declined to do. It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances. Yet it is nonetheless clear that the barriers to prior restraint remain high unless we are to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it. The history of even wartime suspension of categorical guarantees, such as habeas corpus or the right to trial by civilian courts, See Ex parte Milligan, 4 Wall. 2 (1867), cautions against suspending explicit guarantees.The Nebraska courts in this case enjoined the publication of certain kinds of information about the Simants case. There are, as we suggested earlier, marked differences in setting and purpose between the order entered here and the orders in Near, Keefe, and New York Times, but as to the underlying issue the right of the press to be free from prior restraints on publication -- those Page 427 U. S. 562 cases form the backdrop against which we must decide this case.VIWe turn now to the record in this case to determine whether, as Learned Hand put it, "the gravity of the evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." United States v. Dennis, 183 F.2d 201, 212 (CA2 1950), aff'd, 341 U. S. 494 (1951); see also L. Hand, The Bill of Rights 58-61 (1958). To do so, we must examine the evidence before the trial judge when the order was entered to determine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. The precise terms of the restraining order are also important. We must then consider whether the record supports the entry of a prior restraint on publication, one of the most extraordinary remedies known to our jurisprudence.AIn assessing the probable extent of publicity, the trial judge had before him newspapers demonstrating that the crime had already drawn intensive news coverage, and the testimony of the County Judge, who had entered the initial restraining order based on the local and national attention the case had attracted. The District Judge was required to assess the probable publicity that would be given these shocking crimes prior to the time a jury was selected and sequestered. He then had to examine the probable nature of the publicity and determine how it would affect prospective jurors.Our review of the pretrial record persuades us that the trial judge was justified in concluding that there would Page 427 U. S. 563 be intense and pervasive pretrial publicity concerning this case. He could also reasonably conclude, based on common human experience, that publicity might impair the defendant's right to a fair trial. He did not purport to say more, for he found only "a clear and present danger that pretrial publicity could impinge upon the defendant's right to a fair trial." (Emphasis added.) His conclusion as to the impact of such publicity on prospective jurors was, of necessity, speculative, dealing as he was with factors unknown and unknowable.BWe find little in the record that goes to another aspect of our task, determining whether measures short of an order restraining all publication would have insured the defendant a fair trial. Although the entry of the order might be read as a judicial determination that other measures would not suffice, the trial court made no express findings to that effect; the Nebraska Supreme Court referred to the issue only by implication. See 194 Neb. at 797-798, 236 N.W.2d at 803.Most of the alternatives to prior restraint of publication in these circumstances were discussed with obvious approval in Sheppard v. Maxwell, 384 U.S. at 384 U. S. 357-362: (a) change of trial venue to a place less exposed to the intense publicity that seemed imminent in Lincoln County; [Footnote 7] (b) postponement of the trial to allow Page 427 U. S. 564 public attention to subside; (c) searching questioning of prospective jurors, as Mr. Chief Justice Marshall used in the Burr case, to screen out those with fixed opinions as to guilt or innocence; (d) the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court. Sequestration of jurors is, of course, always available. Although that measure insulates jurors only after they are sworn, it also enhances the likelihood of dissipating the impact of pretrial publicity and emphasizes the elements of the jurors' oaths.This Court has outlined other measures short of prior restraints on publication tending to blunt the impact of pretrial publicity. See Sheppard v. Maxwell, supra at 384 U. S. 361-362. Professional studies have filled out these suggestions, recommending that trial courts in appropriate cases limit what the contending lawyers, the police, and witnesses may say to anyone. See American Bar Association Project on Standards for Criminal Justice, Fair Trial and Free Press 2-15 (App.Draft 168). [Footnote 8] Page 427 U. S. 565We have noted earlier that pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial. The decided cases"cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process."Murphy v. Florida, 421 U.S. at 421 U. S. 799. Appellate evaluations as to the impact of publicity take into account what other measures were used to mitigate the adverse effects of publicity. The more difficult prospective or predictive assessment that a trial judge must make also calls for a judgment as to whether other precautionary steps will suffice.We have therefore examined this record to determine the probable efficacy of the measures short of prior restraint on the press and speech. There is no finding that alternative measures would not have protected Simants' rights, and the Nebraska Supreme Court did no more than imply that such measures might not be adequate. Moreover, the record is lacking in evidence to support such a finding.CWe must also assess the probable efficacy of prior restraint on publication as a workable method of protecting Simants' right to a fair trial, and we cannot ignore the reality of the problems of managing and enforcing pretrial restraining orders. The territorial jurisdiction of the issuing court is limited by concepts of sovereignty, see, e.g., Hanson v. Denckla, 357 U. S. 235 (1958); Pennoyer v. Neff, 95 U. S. 714 (1878). The need for in Page 427 U. S. 566 personam jurisdiction also presents an obstacle to a restraining order that applies to publication at large a distinguished from restraining publication within a given Jurisdiction. [Footnote 9] See generally American Bar Association, Legal Advisory Committee on Fair Trial and Free Press, Recommended Court Procedure to Accommodate Rights of Fair Trial and Free Press (Rev. Draft, Nov.1975); Rendleman, Free Press-Fair Trial: Review of Silence Orders, 52 N.C.L.Rev. 127, 149-155 (1973). [Footnote 10]The Nebraska Supreme Court narrowed the scope of the restrictive order, and its opinion reflects awareness of the tensions between the need to protect the accused as fully as possible and the need to restrict publication as little as possible. The dilemma posed underscores how Page 427 U. S. 567 difficult it is for trial judges to predict what information will, in fact, undermine the impartiality of jurors, and the difficulty of drafting an order that will effectively keep prejudicial information from prospective jurors. When a restrictive order is sought, a court can anticipate only part of what will develop that may injure the accused. But information not so obviously prejudicial may emerge, and what may properly be published in these "gray zone" circumstances may not violate the restrictive order and yet be prejudicial.Finally, we note that the events disclosed by the record took place in a community of 850 people. It is reasonable to assume that, without any news accounts being printed or broadcast, rumors would travel swiftly by word of mouth. One can only speculate on the accuracy of such reports, given the generative propensities of rumors; they could well be more damaging than reasonably accurate news accounts. But plainly a whole community cannot be restrained from discussing a subject intimately affecting life within it.Given these practical problems, it is far from clear that prior restraint on publication would have protected Simants' rights.DFinally, another feature of this case leads us to conclude that the restrictive order entered here is not supportable. At the outset, the County Court entered a very broad restrictive order, the terms of which are not before us; it then held a preliminary hearing open to the public and the press. There was testimony concerning at least two incriminating statements made by Simants to private persons; the statement -- evidently a confession -- that he gave to law enforcement officials was also introduced. The State District Court's later order was entered after this public hearing and, as modified by the Page 427 U. S. 568 Nebraska Supreme Court, enjoined reporting of (1) "[c]onfessions or admissions against interest made by the accused to law enforcement officials"; (2) "[c]onfessions or admissions against interest, oral or written, if any, made by the accused to third parties, excepting any statements, if any, made by the accused to representatives of the news media"; and (3) all "[o]ther information strongly implicative of the accused as the perpetrator of the slayings." 194 Neb. at 801, 236 N.W.2d at 805.To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated settled principles: "[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom." Sheppard v. Maxwell, 384 U.S. at 384 U. S. 362-363. See also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Craig v. Harney, 331 U. S. 367 (1947). The County Court could not know that closure of the preliminary hearing was an alternative open to it until the Nebraska Supreme Court so construed state law; but once a public hearing had been held, what transpired there could not be subject to prior restraint.The third prohibition of the order was defective in another respect as well. As part of a final order, entered after plenary review, this prohibition regarding "implicative" information is too vague and too broad to survive the scrutiny we have given to restraints on First Amendment rights. See, e.g., Hynes v. Mayor of Oradell, 425 U. S. 610 (1976); Buckley v. Valeo, 424 U. S. 1, 424 U. S. 762 (1976); NAACP v. Button, 371 U. S. 415 (1963). The third phase of the order entered falls outside permissible limits.EThe record demonstrates, as the Nebraska courts held, that there was indeed a risk that pretrial news accounts, Page 427 U. S. 569 true or false, would have some adverse impact on the attitudes of those who might be called as jurors. But, on the record now before us, it is not clear that further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court. We cannot say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary. Nor can we conclude that the restraining order actually entered would serve its intended purpose. Reasonable minds can have few doubts about the gravity of the evil pretrial publicity can work, but the probability that it would do so here was not demonstrated with the degree of certainty our cases on prior restraint require.Of necessity, our holding is confined to the record before us. But our conclusion is not simply a result of assessing the adequacy of the showing made in this case; it results in part from the problems inherent in meeting the heavy burden of demonstrating, in advance of trial, that without prior restraint a fair trial will be denied. The practical problems of managing and enforcing restrictive orders will always be present. In this sense, the record now before us is illustrative, rather than exceptional. It is significant that, when this Court has reversed a state conviction because of prejudicial publicity, it has carefully noted that some course of action short of prior restraint would have made a critical difference. See Sheppard v. Maxwell, supra at 384 U. S. 363; Estes v. Texas, 381 U.S. at 381 U. S. 550-551; Rideau v. Louisiana, 373 U.S. at 373 U. S. 726; Irwin v. Dowd, 366 U.S. at 366 U. S. 728. However difficult it may be, we need not rule out the possibility of showing the kind of threat to fair trial rights that would possess Page 427 U. S. 570 the requisite degree of certainty to justify restraint. This Court has frequently denied that First Amendment rights are absolute and has consistently rejected the proposition that a prior restraint can never be employed. See New York Times Co. v. United States, 403 U. S. 713 (1971); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931).Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged. We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high, and the presumption against its use continues intact. We hold that, with respect to the order entered in this case prohibiting reporting or commentary on judicial proceedings held in public, the barriers have not been overcome; to the extent that this order restrained publication of such material, it is clearly invalid. To the extent that it prohibited publication based on information gained from other sources, we conclude that the heavy burden imposed as a condition to securing a prior restraint was not met, and the judgment of the Nebraska Supreme Court is thereforeReversed

U.S. Supreme CourtNebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)Nebraska Press Assn. v. StuartNo. 75-817Argued April 19, 1976Decided June 30, 1976427 U.S. 539SyllabusRespondent Nebraska state trial judge, in anticipation of a trial for a multiple murder which had attracted widespread news coverage, entered an order which, as modified by the Nebraska Supreme Court, restrained petitioner newspapers, broadcasters, journalists, news media associations, and national newswire services from publishing or broadcasting accounts of confessions or admissions made by the accused to law enforcement officers or third parties, except members of the press, and other facts "strongly implicative" of the accused. The modification of the order had occurred in the course of an action by petitioners, which had sought a stay of the trial court's original order and in which the accused and the State of Nebraska intervened. This Court granted certiorari to determine whether the order violated the constitutional guarantee of freedom of the press. The order expired by its own terms when the jury was impaneled. Respondent was convicted; his appeal is pending in the Nebraska Supreme Court.Held:1. The case is not moot simply because the order has expired, since the controversy between the parties is "capable of repetition, yet evading review." Pp. 427 U. S. 546-547.2. While the guarantees of freedom of expression are not an absolute prohibition under all circumstances, the barriers to prior restraint remain high and the presumption against its use continues intact. Although it is unnecessary to establish a priority between First Amendment rights and the Sixth Amendment right to a fair trial under all circumstances, as the authors of the Bill of Rights themselves declined to do, the protection against prior restraint should have particular force as applied to reporting of criminal proceedings. Pp. 427 U. S. 556-562.3. The heavy burden imposed as a condition to securing a prior restraint was not met in this case. Pp. 427 U. S. 562-570.(a) On the pretrial record, the trial judge was justified in concluding that there would be intense and pervasive pretrial publicity concerning the case, and he could also reasonably Page 427 U. S. 540 conclude, based on common human experience, that publicity might impair the accused's right to a fair trial. His conclusion as to the impact of such publicity on prospective jurors was of necessity speculative, however, dealing as he was with factors unknown and unknowable. Pp. 427 U. S. 562-563.(b) There is no finding that measures short of prior restraint on the press and speech would not have protected the accused's rights; the Nebraska Supreme Court no more than implied that alternative measures might not suffice, and the record lacks evidence that would support such a finding. Pp. 427 U. S. 563-565.(c) It is not clear that prior restraint on publication would have effectively protected the accused's rights, in view of such practical problems as the limited territorial jurisdiction of the trial court issuing the restraining order, the difficulties inherent in predicting what information will in fact undermine the jurors' impartiality, the problem of drafting an order that will effectively keep prejudicial information from prospective jurors, and the fact that in this case the events occurred in a small community where rumors would travel swiftly by word of mouth. Pp. 427 U. S. 565-567.(d) To the extent that the order prohibited the reporting of evidence adduced at the open preliminary hearing held to determine whether the accused should be bound over for trial, it violated the settled principle that "there is nothing that proscribes the press from reporting events that transpire in the courtroom," Sheppard v. Maxwell, 384 U. S. 333, 384 U. S. 362-363, and the portion of the order restraining publication of other facts "strongly implicative" of the accused is too vague and too broad to survive the scrutiny given to restraints on First Amendment rights. Pp. 427 U. S. 567-568.194 Neb. 783, 236 N.W.2d 794, reversed.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., post, p. 427 U. S. 570, and POWELL, J., post, p. 427 U. S. 571, filed concurring opinions. BRENNAN, J., filed an opinion concurring in the judgment, in which STEWART and MARSHALL, JJ., joined, post, p. 427 U. S. 572. STEVENS, J., filed an opinion concurring in the judgment, post, p. 427 U. S. 617. Page 427 U. S. 541

1956_445

MR. JUSTICE CLARK delivered the opinion of the Court.This admiralty limitation proceeding resulted from a maritime disaster in 1954. The aggregate amount of all of the claims filed in the proceeding and for which the petitioner could be held liable if found at fault is less than the value of petitioner's vessels and their pending freight. The question presented is whether the respondent, the principal claimant, may, under these circumstances, proceed with her action in a state court, subject to the continuing jurisdiction of the federal court to protect petitioner's right to limited liability, to determine the obligation of the petitioner to respond in damages for the loss of the life of her husband. We agree with the disposition of the District Court as modified by the Court of Appeals.Respondent's husband was a passenger on the pleasure yacht, Blackstone, which was involved in a collision on the Hudson River on July 10, 1954, with petitioner's tug, Eastern Cities, pushtowing petitioner's barge, L.T.C. No. 38. The Blackstone capsized, and respondent's husband was drowned. The other 10 persons on board the yacht were rescued. Respondent, as her husband's administratrix, brought suit against the petitioner in a New York state court claiming $500,000 damages for the loss of her husband's life. She alleged that the loss was caused by Lake Tankers' negligent operation of both its tug and its barge. Actions by four other claimants were also commenced in the New York state courts against the petitioner for damages for personal injuries and for loss of the Blackstone. Page 354 U. S. 149Thereafter, Lake Tankers Corporation filed this proceeding in admiralty in the United States District Court for the Southern District of New York for exoneration from or limitation of liability. As required by the statute authorizing limitation proceedings, [Footnote 1] the petitioner filed approved security. While the first bond was only in the amount of $118,542.21, representing the petitioner's interest in its tug alone, thereafter, a bond covering the barge in the amount of $165,000 was filed. Appropriate restraining orders were issued enjoining the prosecution or filing of any claims against Lake Tankers except in the limitation proceeding. There is no dispute in regard to the adequacy or correctness of the amount of the two bonds.After petitioner instituted the limitation proceeding, the respondent filed a claim for $250,000 in it covering the same loss asserted in her state court case. The 10 survivors, including those who had filed suits in the state court, also filed their claims in the limitation proceeding. These totaled only $9,525. All of the claimants, including respondent, have relinquished all right to any damage in excess of the amounts set forth in their respective claims in the limitation proceeding and expressly limited their recovery to those amounts. The respondent has amended her claim further by allocating $100,000 of her alleged damage to the tug and the remaining $150,000 to the barge. She has also filed stipulations agreeing neither to increase these claims nor to enter into a judgment in excess of these amounts, and she has waived any claim of res judicata relative to the issue of the petitioner's right to limit liability if that issue should be passed on in the state court proceeding. The District Court, on application, then vacated the restraining order, since the total fund exceeded the amount of the claims. Page 354 U. S. 150 137 F. Supp. 311. The Court of Appeals for the Second Circuit affirmed, entering an order, to which respondent has also agreed, with respect to the state court suit, as follows:"If claimant obtains a judgment in her state court suit for an amount in excess of $100,000, an injunction will issue permanently enjoining her from collecting such excess unless the judgment rests on a special verdict allocating the amount as between the libelant as owner of the tug and as owner of the barge respectively. Thus, if the judgment exceeds $100,000 and the jury finds libelant liable solely as owner of the tug, she will be enjoined from collecting any excess. If the jury finds that the libelant is liable solely as owner of the barge, she will be enjoined from collecting any amount in excess of $150,000."232 F.2d 573, 577.On rehearing the Second Circuit, sitting en banc, reaffirmed its decision. 235 F.2d 783. We granted certiorari to pass upon the important jurisdictional question presented. 352 U.S. 914.This Court has recently considered the cases which discuss the historical background of the Limited Liability Act, R.S. §§4281-4289, as amended, 46 U.S.C. §§ 181-196, in British Transport Commission v. United States, ante, p. 354 U. S. 129. It was there pointed out that the Act was adopted primarily to encourage the development of American merchant shipping. The first section of the Act here involved contains its fundamental provision, which declares that the liability for any damage arising from a disaster at sea which is occasioned without the privity or knowledge of the shipowner shall in no case exceed the value of the vessel at fault together with her pending freight, 46 U.S.C. § 183. As Mr. Justice Van Devanter stated for a unanimous Court in White v. Page 354 U. S. 151 Island Transportation Co., 233 U. S. 346, 233 U. S. 351 (1914),"The succeeding sections are in the nature proceedings by which the first is to be made effective. Therefore they should be so construed as to bring them into correspondence with it."Among these sections dealing with the mechanics of effecting such limitation of liability is § 184, covering those incidents where "the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of [the claimants]." In that event, the section continues, "they shall receive compensation from the owner of the vessel in proportion to their respective losses, and, for that purpose," the owners "may take the appropriate proceedings in any court. . . ." (Emphasis added.) The succeeding section provides that, in such an event, the owner "may petition a district court of the United States . . . for limitation of liability within the provisions of this chapter. . . ." It further declares that, upon compliance with its requirements, "all claims and proceedings against the owner with respect to the matter in question shall cease." This provision is implemented by Rule 51 of our Admiralty Rules, which spells out in more detail the manner in which the owner of any vessel who "shall desire to claim the benefit of limitation of liability . . . " shall proceed. It is therefore crystal clear that the operation of the Act is directed at misfortunes at sea where the losses incurred exceed the value of the vessel and the pending freight. And, as is pointed out in British Transport Commission, supra, where the fund created pursuant to the Act is inadequate to cover all damages and the owner has sought the protection of the Act, the issues arising from the disaster could be litigated within the limitation proceeding. Otherwise the purpose of the Act, i.e., limitation of the owner's liability, might be frustrated. Only in this manner may there be a marshalling of all of the statutory assets remaining after the Page 354 U. S. 152 disaster and a concourse of claimants. In such a situation, it matters not to the owner what the "take" of the individual claimant may be from the proceeding, for, under the Act, his payment is limited to the value of the vessel and the pending freight. He can suffer no more in any event.On the other hand, where the value of the vessel and the pending freight, the fund paid into the proceeding by the offending owner, exceeds the claims made against it, there is no necessity for the maintenance of the concourse. This is not to say that concursus is not available where a vessel owner in good faith believes the fund inadequate, but here there is no contention that there might be further claims; the value of the vessels is undisputed, and the claims are fixed; it follows indubitably that the fund is sufficient to pay all claims in full. While it is true that the claims, as initially filed in the state court, exceeded the fund created in the limitation proceeding, still when the admiralty court dissolved the injunction against the state suit, these claims, as filed in and limited by stipulation and order of the admiralty court in the limitation proceeding, aggregated less than the fund. On appeal, the Court of Appeals placed even more severe restrictions on the state court prosecution, thus insuring beyond doubt that petitioner's right of limitation under the Act was fully protected.For us to expand the jurisdictional provisions of the Act to prevent respondent from now proceeding in her state case would transform the Act from a protective instrument to an offensive weapon by which the shipowner could deprive suitors of their common law rights even where the limitation fund is known to be more than adequate to satisfy all demands upon it. The shipowner's right to limit liability is not so boundless. The Act is not one of immunity from liability, but of limitation of it, and we read no other privilege for the shipowner into its language over and above that granting him limited Page 354 U. S. 153 liability. In fact, the Congress not only created the limitation procedure for the primary purpose of apportioning the limitation fund among the claimants where that fund was inadequate to pay the claims in full, but it reserved to such suitors their common law remedies. 63 Stat. 101, 28 U.S.C. § 1333. [Footnote 2] In view of this explicit mandate from the Congress, the respondent must not be thwarted in her attempt to employ her common law remedy in the state court where she may obtain trial by jury.The state proceeding could have no possible effect on the petitioner's claim for limited liability in the admiralty court. and the provisions of the Act therefore do not control. Langnes v. Green, 282 U. S. 531, 282 U. S. 539-540 (1931). It follows that there can be no reason why a shipowner, under such conditions, should be treated any more favorably than an airline, bus, or railroad company. None of them can force a damage claimant to trial without a jury. They, too, must suffer a multiplicity of suits. Likewise, the shipowner, so long as his claim of limited liability is not jeopardized, is subject to all common law remedies available against other parties in damage actions. The Act, as we have said, was not adopted to insulate shipowners from liability, but merely to limit it to the value of the vessel and the pending freight. It is contended that Maryland Casualty Co. v. Cushing, 347 U. S. 409 (1954), is to the contrary. While there was no opinion Page 354 U. S. 154 of the Court in that case, it involved an alleged clash between Louisiana's direct action statute and the Act. The majority concluded there was no clash. The amount of the claims there far exceeded the value, if any, of the vessel and the pending freight. The language in one opinion to the effect that concursus is "the heart" of the limitation system therefore refers to those cases where the claims exceed the value of the vessel and the pending freight. In that event, as we have pointed out, the concursus is vital to the protection of the offending owner's statutory right of limitation. But this is not to say that, where concursus is not necessary to the protection of this statutory right, it is nonetheless required.We conclude that, in the situation here, a concursus beyond that required by the orders heretofore entered in this case is not necessary, and respondent may therefore proceed with her state court suit.Affirmed

U.S. Supreme CourtLake Tankers Corp. v. Henn, 354 U.S. 147 (1957)Lake Tankers Corp. v. HennNo. 445Argued May 6, 1957Decided June 10, 1957354 U.S. 147SyllabusPetitioner brought this proceeding in a Federal District Court under the Limited Liability Act, 46 U.S.C. §§ 181-196, to limit its liability for claims growing out of a collision between petitioner's tug and barge and a pleasure yacht. Suits previously brought in state courts, by respondent for the death of her husband, and by four other claimants for personal injuries and the loss of the yacht, originally involved claims for damages aggregating more than the value of petitioner's vessels and their pending freight, but the aggregate amount recoverable on such claims was reduced by stipulations and admiralty court orders to an amount less than the value of the vessels and their pending freight. The value of the vessels was undisputed; the claims were fixed; there was no contention that there might be further claims; the fund indubitably was sufficient to pay all claims in full; and the admiralty court had dissolved its injunction against respondent's suit in the state court.Held: in this situation, a concursus beyond that required by the orders heretofore entered in the limitation proceeding is not necessary, and respondent may proceed with her suit in the state court to determine petitioner's obligation to respond in damages for the loss of her husband's life subject to the continuing jurisdiction of the federal court to protect petitioner's right to limited liability. Pp. 354 U. S. 148-154.(a) Where the fund paid into the proceedings by the offending owner exceeds the claims made against it, there is no necessity for the maintenance of the concourse. P. 354 U. S. 152.(b) The Act is not one of immunity from liability, and it confers no privilege on the shipowner other than that granting him limited liability. Pp. 354 U. S. 152-153.(c) In view of the reservation to such suitors of their common law remedies by 28 U.S. C. § 1333, respondent must not be thwarted in her attempt to employ her common law remedy in the state court, where she may obtain trial by jury. P. 354 U. S. 153.(d) Maryland Casualty Co. v. Cushing, 347 U. S. 409, distinguished. Pp. 354 U. S. 153-154.232 F.2d 573, 235 F.2d 783, affirmed. Page 354 U. S. 148

1974_73-5520

MR. JUSTICE STEWART delivered the opinion of the Court.Margaret Cantrell and four of her minor children brought this diversity action in a Federal District Court for invasion of privacy against the Forest City Publishing Co., publisher of a Cleveland newspaper, the Plain Dealer, and against Joseph Eszterhas, a reporter formerly employed by the Plain Dealer, and Richard Conway, a Plain Dealer photographer. The Cantrells alleged that an article published in the Plain Dealer Sunday Magazine unreasonably placed their family in a false light before the public through its many inaccuracies and untruths. The District Judge struck the claims relating to punitive damages as to all the plaintiffs and dismissed the actions of three of the Cantrell children in their entirety, but allowed the case to go to the jury Page 419 U. S. 247 as to Mrs. Cantrell and her oldest son, William. The jury returned a verdict against all three of the respondents for compensatory money damages in favor of these two plaintiffs.The Court of Appeals for the Sixth Circuit reversed, holding that, in the light of the First and Fourteenth Amendments, the District Judge should have granted the respondents' motion for a directed verdict as to all the Cantrells' claims. 484 F.2d 150. We granted certiorari, 418 U.S. 909.IIn December, 1967, Margaret Cantrell's husband Melvin was killed along with 43 other people when the Silver Bridge across the Ohio River at Point Pleasant, W.Va. collapsed. The respondent Eszterhas was assigned by the Plain Dealer to cover the story of the disaster. He wrote a "news feature" story focusing on the funeral of Melvin Cantrell and the impact of his death on the Cantrell family.Five months later, after conferring with the Sunday Magazine editor of the Plain Dealer, Eszterhas and photographer Conway returned to the Point Pleasant area to write a follow-up feature. The two men went to the Cantrell residence, where Eszterhas talked with the children and Conway took 50 pictures. Mrs. Cantrell was not at home at any time during the 60 to 90 minutes that the men were at the Cantrell residence.Eszterhas' story appeared as the lead feature in the August 4, 1968, edition of the Plain Dealer Sunday Magazine. The article stressed the family's abject poverty; the children's old, ill-fitting clothes and the deteriorating condition of their home were detailed in both the text and accompanying photographs. As he had done in his original, prize-winning article on the Silver Bridge disaster, Eszterhas used the Cantrell family to Page 419 U. S. 248 illustrate the impact of the bridge collapse on the lives of the people in the Point Pleasant area.It is conceded that the story contained a number of inaccuracies and false statements. Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter's visit to her home, Eszterhas wrote,"Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that, after it happened, the people in town offered to help them out with money, and they refused to take it. [Footnote 1]"Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home.The case went to the jury on a so-called "false light" theory of invasion of privacy. In essence, the theory of the case was that, by publishing the false feature story about the Cantrells and thereby making them the objects of pity and ridicule, the respondents damaged Mrs. Cantrell and her son William by causing them to suffer outrage, mental distress, shame, and humiliation. [Footnote 2] Page 419 U. S. 249IIIn Time, Inc. v. Hill, 385 U. S. 374, the Court considered a similar false light invasion of privacy action. The New York Court of Appeals had interpreted New York Civil Rights Law §§ 551 to give a "newsworthy person" a right of action when his or her name, picture or portrait was the subject of a "fictitious" report or article. Material and substantial falsification was the test for recovery. 385 U.S. at 385 U. S. 384-386. Under this doctrine, the New York courts awarded the plaintiff James Hill compensatory damages based on his complaint that Life Magazine had falsely reported that a new Broadway play portrayed the Hill family's experience in being held hostage by three escaped convicts. This Court, guided by its decision in New York Times Co. v. Sullivan, 376 U. S. 254, which recognized constitutional limits on a State's power to award damages for libel in actions brought by public officials, held that the constitutional protections for speech and press precluded the application of the New York statute to allow recovery for"false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth."385 U.S. at 385 U. S. 388. Although the jury could have reasonably concluded from the evidence in the Hill case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that "the story reenacted" the Hill family's experience, the Court concluded that the trial judge's instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution. Id. at 385 U. S. 394.The District Judge in the case before us, in contrast to the trial judge in Time, Inc. v. Hill, did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature Page 419 U. S. 250 article on the Cantrells had been made with knowledge of their falsity or in reckless disregard of the truth. [Footnote 3] No objection was made by any of the parties to this "knowing or reckless falsehood" instruction. Consequently, this case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false light theory of invasion of privacy, or whether the constitutional standard Page 419 U. S. 251 announced in Time, Inc. v. Hill applies to all false light cases. Cf. Gertz v. Robert Welch, Inc., 418 U. S. 323. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury's verdict.IIIAt the close of the petitioners' case-in-chief, the District Judge struck the demand for punitive damages. He found that Mrs. Cantrell had failed to present any evidence to support the charges that the invasion of privacy "was done maliciously within the legal definition of that term." The Court of Appeals interpreted this finding to be a determination by the District Judge that there was no evidence of knowing falsity or reckless disregard of the truth introduced at the trial. Having made such a determination, the Court of Appeals held that the District Judge should have granted the motion for a directed verdict for respondents as to all the Cantrells' claims. 484 F.2d at 155.The Court of Appeals appears to have assumed that the District Judge's finding of no malice "within the legal definition of that term" was a finding based on the definition of "actual malice" established by this Court in New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 280: "with knowledge that [a defamatory statement] was false or with reckless disregard of whether it was false or not." As so defined, of course, "actual malice" is a term of art, created to provide a convenient shorthand expression for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers. [Footnote 4] As Page 419 U. S. 252 such, it is quite different from the common law standard of "malice" generally required under state tort law to support an award of punitive damages. In a false light case, common law malice -- frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff's rights -- -would focus on the defendant's attitude toward the plaintiff's privacy, not toward the truth or falsity of the material published. See Time, Inc. v. Hill, 385 U.S. at 385 U. S. 396 n. 12. See generally W. Prosser, Law of Torts 9-10 (4th ed.).Although the verbal record of the District Court proceedings is not entirely unambiguous, the conclusion is inescapable that the District Judge was referring to the common law standard of malice, rather than to the New York Times "actual malice" standard, when he dismissed the punitive damages claims. For at the same time that he dismissed the demands for punitive damages, the District Judge refused to grant the respondents' motion for directed verdicts as to Mrs. Cantrell's and William's claims for compensatory damages. And, as his instructions to the jury made clear, the District Judge was fully aware that the Time, Inc. v. Hill meaning of the New York Times "actual malice" standard had to be satisfied for the Cantrells to recover actual damages. Thus, the only way to harmonize these two virtually simultaneous rulings by the District Judge is to conclude, contrary to the decision of the Court of Appeals, that, in dismissing the punitive damages claims, he was not determining that Mrs. Cantrell had failed to introduce any evidence of knowing falsity or reckless disregard of the truth. This conclusion is further fortified by the District Judge's subsequent denial of the respondents' motion for judgment n.o.v. and alternative motion for a new trial.Moreover, the District Judge was clearly correct in believing that the evidence introduced at trial was sufficient Page 419 U. S. 253 to support a jury finding that the respondents Joseph Eszterhas and Forest City Publishing Co. had published knowing or reckless falsehoods about the Cantrells. [Footnote 5] There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home, and that Eszterhas had observed her "wear[ing] the same mask of nonexpression she wore [at her husband's] funeral." These were "calculated falsehoods," and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth.The Court of Appeals concluded that there was no evidence that Forest City Publishing Co. had knowledge of any of the inaccuracies contained in Eszterhas' article. However, there was sufficient evidence for the jury to find that Eszterhas' writing of the feature was within the scope of his employment at the Plain Dealer, and the at Forest City Publishing Co. was therefore liable under traditional doctrines of respondeat superior. [Footnote 6] Although Eszterhas was not regularly Page 419 U. S. 254 assigned by the Plain Dealer to write for the Sunday Magazine, the editor of the magazine testified that, as a staff writer for the Plain Dealer, Eszterhas frequently suggested stories he would like to write for the magazine. When Eszterhas suggested the follow-up article on the Silver Bridge disaster, the editor approved the idea and told Eszterhas the magazine would publish the feature if it was good. From this evidence, the jury could reasonably conclude that Forest City Publishing Co., publisher of the Plain Dealer, should be held vicariously liable for the damage caused by the knowing falsehoods contained in Eszterhas' story.For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to enter a judgment affirming the judgment of the District Court as to the respondents Forest City Publishing Co. and Joseph Eszterhas.It is so ordered

U.S. Supreme CourtCantrell v. Forest City Publishing Co., 419 U.S. 245 (1974)Cantrell v. Forest City Publishing Co.No. 73-5520Argued November 13, 1974Decided December 18, 1974419 U.S. 245SyllabusPetitioners, a mother and her son, brought a diversity action against respondents, a newspaper publisher and a reporter, for invasion of privacy based on a feature story in the newspaper discussing the impact upon petitioners' family of the death of the father in a bridge collapse. The story concededly contained a number of inaccuracies and false statements about the family. The District Judge struck the claims for punitive damages for lack of evidence of malice "within the legal definition of that term," but allowed the case to go to the jury on the "false light" theory of invasion of privacy, after instructing the jurors that liability could be imposed only if they found that the false statements were published with knowledge of their falsity or in reckless disregard of the truth, and the jury returned a verdict for compensatory damages. The Court of Appeals reversed, holding that the District Judge should have directed a verdict for respondents, since his finding of no malice in striking the punitive damages claims was based on the definition of "actual malice" established in New York Times Co. v. Sullivan, 376 U. S. 254, and thus was a determination that there was no evidence of the knowing falsity or reckless disregard of the truth required for liability.Held: The Court of Appeals erred in setting aside the jury's verdict. Pp. 419 U. S. 251-254.(a) The record discloses that the District Judge, when he dismissed the punitive damages claims, was not referring to the New York Times "actual malice" standard, but to the common law standard of malice that is generally required under state tort law to support an award of punitive damages, and that, in a "false light" case, would focus on the defendant's attitude toward the plaintiff's privacy, and not on the truth or falsity of the material published, and thus was not determining that petitioners had failed to introduce evidence of knowing falsity or reckless disregard of the truth. Pp. 419 U. S. 251-252. Page 419 U. S. 246(b) Moreover, the evidence was sufficient to support jury findings that respondents had published knowing or reckless falsehoods about petitioners, particularly with respect to "calculated falsehoods" about petitioner mother's being present when the story was being prepared, and that respondent reporter's writing of the story was within the scope of his employment at the newspaper so as to render respondent publisher vicariously liable under respondeat superior for the knowing falsehoods in the story. Pp. 419 U. S. 252-254.484 F.2d 150, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 419 U. S. 254.

1968_19

MR. JUSTICE WHITE delivered the opinion of the Court.The Secretary of the Interior is responsible for maintaining our national parks, and for providing facilities and services for their public enjoyment through concessionaires or otherwise. [Footnote 1] In meeting this responsibility, he has contracted for petitioner to conduct guided tours of the Mall, a grassy park located in the center of the City of Washington and studded with national monuments and museums. Visitors to the Mall may board petitioner's open "minibuses" which travel among the various points of interest at speeds under 10 miles per hour. Guides on the buses and at certain stationary locations describe the sights. Visitors may debark to tour the museums, boarding a later bus to return to the point of departure. Page 393 U. S. 188Suit was brought by the Washington Metropolitan Area Transit Commission (hereafter WMATC) to enjoin petitioner from conducting tours of the Mall without a certificate of convenience and necessity from the WMATC. Carriers permitted by WMATC to provide mass transit and sightseeing services in the City of Washington intervened as plaintiffs, and the United States appeared as amicus curiae. The concessionaire and the United States contend that the Secretary's authority over national park lands, and in particular his grant of "exclusive charge and control" over the Mall dating from 1898, [Footnote 2] permit him to contract for this service without interference. The carriers and WMATC argue that the interstate compact which created the WMATC implicitly limited the Secretary's authority over the Mall, and gave rise to dual jurisdiction over these tours in the Secretary and the WMATC. One carrier, D.C. Transit System, Inc., also argues that its franchise limits the Secretary's power. In a detailed opinion, the District Court dismissed the suit. The Court of Appeals reversed without opinion. We granted certiorari and, having heard the case and examined the web of statutes on which it turns, we reverse, finding the Secretary's exclusive authority to contract for services on the Mall undiminished by the compact creating WMATC or by the charter granted a private bus company. Page 393 U. S. 189IThat the Secretary has substantial power over the Mall is undisputed. The parties agree that he is free to enter into the contract in question. They also agree that he is free to exclude traffic from the Mall altogether, or selectively to exclude from the Mall any carrier licensed by the WMATC or following WMATC instructions. Moreover, the parties agree that the Secretary could operate the tour service himself without need to obtain permission from anyone. [Footnote 3] Yet the WMATC argues that, before the Secretary's power may be exercised through a concessionaire, the consent of the WMATC must be obtained.This interpretation of the statutes involved would result in a dual regulatory jurisdiction overlapping on the most fundamental matters. The Secretary is empowered by statute to"contract for services . . . provided in the national parks . . . for the public . . . as may be required in the administration of the National Park Service. . . ."Act of May 26, 1930, c. 324, § 3, 46 Stat. 382, 16 U.S.C. § 17b. Moreover, he is"to encourage and enable private persons and corporations . . . to provide and operate facilities and services which he deems desirable. . . ."Pub.L. 89-249, § 2, 79 Stat. 969, 16 U.S.C. § 20a (1964 ed., Supp. III). Congress was well aware that the services provided by these national park concessionaires include transportation. Hearings on H.R. 5796, 5872, 5873, 5886, and 5887 before the Subcommittee on National Parks of the House Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 151-159 (1964). In this case, the Secretary Page 393 U. S. 190 concluded that there was a public need for a motorized, guided tour of the grounds under his control, and that petitioner was most fit to provide it.The WMATC, however, also asserts the power to decide whether this tour serves "public convenience and necessity," and the power to require the concessionaire to "conform to the . . . requirements of the Commission" and the "terms and conditions" which it may impose. Pub.L. 86-794, Tit. II, Art. XII § 4(b), 74 Stat. 1037. The Secretary's contract leaves the tour's route under his control, but the WMATC would in its certificate specify the "service to be rendered and the routes over which" the concessionaire might run within the Mall. Pub.L. 86-794, Tit. II, Art. XII, § 4(d)(1), 74 Stat. 1037. Moreover, the WMATC might require the provision of additional service on or off the Mall and forbid the discontinuance of any existing service. Pub.L. 86-794, Tit. II, Art. XII, §§ 4(e) and (i), 74 Stat. 1038, 1039. The contract with the Secretary provides fare schedules, pursuant to statutory authority in the Secretary to regulate the concessionaire's charges. Pub.L. 89-249, § 3, 79 Stat. 969, 16 U.S.C. § 20b (1964 ed., Supp. III). The WMATC would have the power to "suspend any fare, regulation, or practice" depending on the WMATC's views of the financial condition, efficiency, and effectiveness of the concessionaire and the reasonableness of the rate. Pub.L. 86-794, Tit. II, Art. XII, § 6, 74 Stat. 1040. And under the same section the WMATC could set whatever fare it found reasonable, although a profit of 6 1/2% or less could not be prohibited. The Secretary is given statutory authority to require the keeping of records by the concessionaire and to inspect those records, and the Comptroller General is required to examine the concessionaire's books every five years. Pub.L. 89-249, § 9, 79 Stat. 971, 16 U.S.C. § 20g Page 393 U. S. 191 (1964 ed., Supp. III). The WMATC would also have the power to require reports and to prescribe and have access to the records to be kept. Pub.L. 86-794, Tit.II, Art. XII, 10, 74 Stat. 1042. Finally, the Secretary is given by statute the general power to specify by contract the duties of a concessionaire, 16 U.S.C. §§ 17b, 20-20g (1964 ed. and Supp. III); the WMATC would claim this power by regulation and rule. Pub.L. 86-794, Tit. II, Art. XII, § 16, 74 Stat. 1045.We cannot ascribe to Congress a purpose of subjecting the concessionaire to these two separate masters, who show at the outset their inability to agree by presence on the opposite sides of this lawsuit. There is no indication from statutory language or legislative history that Congress intended to divest the Secretary partly or wholly of his authority in establishing the WMATC. When the WMATC was formed, there was in the statute books, as there is now, a provision that the "park system of the District of Columbia is placed under the exclusive charge and control of the Director of the National Park Service." Act of July 1, 1898, c. 543, § 2, 30 Stat. 570, as amended, D.C.Code § 8-108(1967). He was, and is, explicitly "authorized and empowered to make and enforce all regulations for the control of vehicles and traffic." Act of June 5, 1920, c. 235, § 1, 41 Stat. 898, D.C.Code § 8-109 (1967). And this extends to sidewalks and streets which "lie between and separate the said public grounds." Act of March 4, 1909, c. 299, § 1, 35 Stat. 994, D.C.Code § 8-144 (1967). [Footnote 4] The creation Page 393 U. S. 192 of the Public Utilities Commission -- the predecessor of the WMATC -- was not intended "to interfere with the exclusive charge and control . . . committed to" the predecessor of the National Park Service. Act of March 3, 1925, c. 443, § 16(b), 43 Stat. 1126, as amended, D.C.Code § 40-613 (1967).In this context the WMATC was established. After World War II, metropolitan Washington had expanded rapidly into Maryland and Virginia. The logistics of moving vast numbers of people on their daily round became increasingly complicated and increasingly in need of coordinated supervision. Congress therefore gave its consent and approval through a joint resolution to an interstate compact which "centralizes to a great degree in a single agency . . . the regulatory powers of private transit now shared by four regulatory agencies." S.Rep. No.1906, 86th Cong., 2d Sess., 2 (1960). These four agencies were "the public utility regulatory agencies of the States of Virginia, Maryland, and the District of Columbia and the Interstate Commerce Commission." Pub.L. 86-794, 74 Stat. 1031. The Secretary was not included in this listing. Moreover, Congress specifically provided that nothing in the Act or compact"shall affect the normal and ordinary police powers . . . of the Director of the National Park Service with respect to the regulation of vehicles, control of traffic and use of streets, highways, and other vehicular facilities. . . . [Footnote 5] Page 393 U. S. 193 Finally, the House Report on the compact lists the federal legislation which was suspended to give effect to the compact, and the laws giving exclusive control of the Mall to the Secretary are not on the list. H.R.Rep. No. 1621, 86th Cong., 2d Sess., 29-30 (1960)."There is thus no reason to ignore the principle that repeals by implication are not favored, [Footnote 6] or to suspect that the Congress, in creating the WMATC, disturbed the exclusivity of the Secretary's control over the Mall either by extinguishing entirely his power to contract for transportation services or by burdening the concessionaire with two separate agencies engaged in regulating precisely the same aspects of its conduct. Congress was endeavoring to simplify the regulation of transportation by creating the WMATC, not to thrust it further into a bureaucratic morass. It therefore established the WMATC to regulate the mass transit of commuters and workers. A system of minibuses, proceeding in a circular route around the Mall at less than 10 miles per hour, and stopping from time to time to describe the sights before disgorging most passengers where it picked them up, serves quite a different function. [Footnote 7] The Mall is, and was intended to be, Page 393 U. S. 194 an expansive, open sanctuary in the midst of a metropolis; a spot suitable for Americans to visit to examine the historical artifacts of their country and to reflect on monuments to the men and events of its history. The Secretary has long had exclusive control of the Mall, and ample power to develop it for these purposes. We hold that the WMATC has not been empowered to impose its own regulatory requirements on the same subject matter.IIIf the WMATC is without jurisdiction to issue a certificate of convenience and necessity in this case, as we have found, then the D.C. Transit System's interpretation of its franchise as protecting it from any uncertified sightseeing service on the Mall would give it an absolute monopoly of service there: the WMATC, lacking jurisdiction over the Mall, would have no authority to certify another carrier. The Secretary, if D.C. Transit is right, would have to take D.C. Transit or no one. Nothing in the statute confers so rigid a monopoly.Section 1(a) of D.C. Transit's franchise, Pub.L. 757, c. 669, Tit. I, pt. 1, 70 Stat. 598, confers the power to operate a "mass transportation system." [Footnote 8] That this does not include sightseeing is clearly shown by Page 393 U. S. 195 the separate grant of power to operate "charter or sightseeing services" in § 6, 70 Stat. 599. [Footnote 9] The section giving D.C. Transit a measure of exclusivity is § 3, 70 Stat. 598, which protects it from any uncertified "competitive . . . bus line" for the "transportation of passengers of the character which runs over a given route on a fixed schedule. . . ." [Footnote 10] In determining what is "competitive," one must refer back to the sections which grant the franchise.Even if §§ 1 and 3 together would protect "mass transportation" on the Mall from uncertified competition, and even if § 3 protects § 6 activity, it does not follow that D.C. Transit has a monopoly over sightseeing on the Mall. Section 6 explicitly saves the "laws . . . of the District of Columbia," including the "exclusive charge and control" of the Secretary over the Mall. D.C.Code § 8-108 (1967). D.C. Transit admits the Secretary could exclude its sightseeing service from the Mall; if so, surely the franchise protection does not extend there. Moreover, §§ 3 and 6 together cannot confer a monopoly of Mall sightseeing, both because this would involve an impairment of the Secretary's power under District law contrary to § 6 and because it would be unreasonable to construe the protection of § 3 against carriers uncertified Page 393 U. S. 196 by the WMATC to apply where the WMATC has no powers of certification.And even were § 3 so construed, its protection against "transportation of passengers of the character which runs over a given route on a fixed schedule" was evidently aimed at commuter service whose most important qualities are speed and predictability, not the service here whose most important qualities are interesting dialogue and leisurely exposure of the rider to new and perhaps unexpected experiences. The agenda of the tour will be varied by the Secretary according to the events of the day. The franchise does not protect D.C. Transit against competition in this sort of service on the Mall.We reverse the judgment of the Court of Appeals and reinstate the judgment of the District Court. If the Congress, which has the matter before it, wishes to clarify or alter the relationship of these statutes and agencies, it is entirely free to do so.Reversed

U.S. Supreme CourtShuttle Corp. v. Washington Transit Comm'n, 393 U.S. 186 (1968)Universal Interpretive Shuttle Corp. v.Washington Metropolitan Area Transit CommissionNo.19Argued October 21-22, 1968Decided November 25, 1968393 U.S. 186SyllabusRespondent Washington Metropolitan Area Transit Commission (WMATC) sued to enjoin petitioner, a concessionaire under contract with the Secretary of the Interior, from operating "minibus" guided tours of the Mall, a park area in the center of Washington, D.C. without obtaining from WMATC a certificate of convenience and necessity. The WMATC concedes the Secretary's substantial powers over the Mall under specific authority dating from 1898 and as part of the national park lands over which he has broad statutory jurisdiction. WMATC contends, however, that the interstate compact under which it was established to centralize responsibility over mass transit service in the Washington metropolitan area implicitly limits the Secretary's power to contract for provision of tour services by a concessionaire uncertified by WMATC. WMATC-certified carriers furnishing mass transit and sightseeing services in Washington, including D.C. Transit System, Inc., which contends that its franchise also limits the Secretary's power, intervened as plaintiffs. The District Court dismissed the suit, and the Court of Appeals reversed.Held:1. When Congress established the WMATC, it did not intend to create dual regulatory jurisdiction by divesting the Secretary of the Interior of his longstanding "exclusive charge and control" over the Mall, and the WMATC is without authority to require that petitioner obtain from it a certificate of convenience and necessity. Pp. 393 U. S. 189-194.2. D.C. Transit's franchise, which protects it from competition by an uncertified bus line transporting passengers over a given route on a fixed schedule in areas under WMATC jurisdiction, does not protect it against competition from petitioner's leisurely sightseeing service on the Mall outside WMATC jurisdiction. Pp. 393 U. S. 194-196.Reversed and remanded. Page 393 U. S. 187

1984_83-1307

JUSTICE REHNQUIST delivered the opinion of the Court.In Dunn v. United States, 284 U. S. 390 (1932), this Court held that a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count. We granted certiorari in this case to determine Page 469 U. S. 59 whether the Court of Appeals for the Ninth Circuit correctly enunciated an exception to Dunn when it overturned respondent's convictions. 467 U.S. 1203 (1984).In 1982, respondent Betty Lou Powell's husband, Ron Powell, aided by his 17-year-old son Jeff and others, was operating a lucrative cocaine and methaqualone distributorship from the Powell home near San Diego, Cal. Federal authorities tapped the Powells' telephone pursuant to a court order, and many conversations were recorded, including at least four which indicated that respondent was playing a minor role in the drug distributorship. Three of these conversations indicated that respondent was helping her husband and son to distribute drugs and to collect money owed for drugs sold. The fourth involved a conversation with a travel agent in which respondent booked an airline ticket for her husband in an assumed name. In April 1982, Ron Powell learned of the wiretap and notified his son, who called respondent and told her to leave home and drive to Los Angeles. Respondent was followed by FBI agents, who after some difficulty [Footnote 1] managed to stop respondent and arrest her. A search of the car uncovered, inter alia, 2 kilograms of cocaine, 2,700 methaqualone tablets, a pistol, a machine gun, 2 silencers, and $30,000 cash.Respondent was indicted by a grand jury in the Southern District of California for 15 counts of violations of federal law. Ten of these counts alleged transgressions of the federal narcotics laws; a jury convicted respondent of only three of these, and acquitted her of the others. [Footnote 2] Count 1 of the indictment charged respondent with conspiring with her Page 469 U. S. 60 husband and 17-year-old son, and others, "to knowingly and intentionally possess with intent to distribute cocaine." Four of the "overt acts" listed in support of this conspiracy were the above-mentioned telephone conversations. Count 9 charged respondent with possession of a specific quantity of cocaine with intent to distribute it. The jury acquitted respondent of Counts 1 and 9. Counts 3, 4, 5, and 6 charged respondent with the compound offenses of using the telephone in "committing and in causing and facilitating" certain felonies -- "conspiracy to possess with intent to distribute and possession with intent to distribute cocaine" -- in violation of 84 Stat. 1263, 21 U.S.C. § 843(b). [Footnote 3] The jury convicted her of Counts 3, 4, and 5, and acquitted her of Count 6.On appeal respondent argued that the verdicts were inconsistent, and that she therefore was entitled to reversal of the telephone facilitation convictions. She contended that proof that she had conspired to possess cocaine with intent to distribute, or had so possessed cocaine, was an element of each of the telephone facilitation counts; [Footnote 4] since she had been acquitted of these offenses in Counts 1 and 9, respondent argued that the telephone facilitation convictions were not consistent with those acquittals. The United States Court of Appeals for the Ninth Circuit agreed. 708 F.2d 455 (1983). The court first rejected the Government's contention that the verdicts could be viewed as consistent because the jury might have found respondent guilty of facilitating a conspiracy Page 469 U. S. 61 other than the conspiracy outlined in Count 1; the court concluded that it was "not convinced that there is evidence to support the government's claim. . . ." [Footnote 5] Id. at 456. The court then cited United States v. Bailey, 607 F.2d 237, 245 (CA9 1979), cert. denied, 445 U.S. 934 (1980), and United States v. Hannah, 584 F.2d 27, 28-30 (CA3 1978), for the proposition that a conviction under 21 U.S.C. § 843(b) must be reversed "when the conviction on the underlying conspiracy count is reversed." 708 F.2d at 456.The Government petitioned for rehearing, arguing that the court had ignored the rule of Dunn v. United States, supra, that inconsistent verdicts in criminal trials need not be set aside, but may instead be viewed as a demonstration of the jury's leniency. The court issued another opinion, stating that the Ninth Circuit "follows the Dunn rule," but spelling out in more detail the court's view that situations where a defendant has been convicted under § 843(b) but acquitted of the felony he is charged with facilitating constitute exceptions to the rule, and that in those situations the § 843(b) conviction must be reversed. 719 F.2d 1480 (1983).The Court of Appeals explained that an acquittal on the predicate felony necessarily indicated that there was insufficient evidence to support the telephone facilitation conviction, and mandated acquittal on that count as well. The court went on to reject more explicitly the Government's argument that the jury might have found a different predicate felony than the conspiracy charged in Count 1; it noted that the case simply had not been presented to the jury under such a theory. [Footnote 6] We granted certiorari to address whether Page 469 U. S. 62 the Court of Appeals in this case, and other of the Courts of Appeals, see Hannah, supra; United States v. Brooks, 703 F.2d 1273, 1278-1279 (CA11 1983), have acted consistently with Dunn in recognizing exceptions to the rule of that case.The defendant in Dunn was tried pursuant to a three-count indictment charging violations of the federal liquor laws. The first count alleged that the defendant had maintained a common nuisance by keeping intoxicating liquor for sale at a specified place; the second and third counts charged unlawful possession, and unlawful sale, of such liquor. The jury convicted defendant of the first count and acquitted him of the second and third. On review, this Court rejected the claim that the defendant was entitled to discharge because the verdicts were inconsistent. Speaking through Justice Holmes, the Court stated:"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Latham v. The Queen, 5 Best & Smith 635, 642, 643. Selvester v. United States, 170 U. S. 262. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not Page 469 U. S. 63 be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As was said in Steckler v. United States, 7 F. (2d) 59, 60:"" The most that can be said in such cases is that the verdict shows that either in the acquittal of the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.""Dunn, 284 U.S. at 284 U. S. 393."Fifty-three years later most of what Justice Holmes so succinctly stated retains its force. Indeed, although not expressly reaffirming Dunn this Court has on numerous occasions alluded to its rule as an established principle. Thus, in United States v. Dotterweich, 320 U. S. 277, 320 U. S. 279 (1943), the rule was invoked to support a jury verdict finding the president of a corporation guilty of introducing adulterated or misbranded drugs into interstate commerce, but acquitting the corporation of the same charge. And more recently, in Harris v. Rivera, 454 U. S. 339 (1981), this Court again reaffirmed the Dunn rule in the course of holding that a defendant could not obtain relief by writ of habeas corpus on the basis of inconsistent verdicts rendered after a state bench trial. This Court noted that Dunn and Dotterweich establish "the unreviewable power of a jury to return a verdict of not guilty for impermissible reasons." Harris v. Rivera, supra, at 454 U. S. 346. See also Standefer v. United States, 447 U. S. 10, 447 U. S. 22-23 (1980).These decisions indicate that this is not a case where a once-established principle has gradually been eroded by subsequent opinions of this Court. Nevertheless, recent decisions in the Courts of Appeals have begun to carve exceptions out of the Dunn rule. See Brooks, supra; United States v. Hannah, 584 F.2d 27 (CA3 1978). See also Page 469 U. S. 64 United States v. Morales, 677 F.2d 1 (CA1 1982) (overturning a conspiracy conviction where the defendant was acquitted of all the "overt acts" charged in support of the conspiracy). In addition to evidencing a general displeasure with allowing inconsistent verdicts to stand under some circumstances, these courts have distinguished Dunn on the ground that, where the predicate felony count and the telephone facilitation count are each submitted to the jury, the counts are "interdependent" and each count cannot be regarded as "as if it [were] a separate indictment." See Hannah, supra, at 30.In so stating, these courts may be attempting to distinguish Dunn on its facts, or they may mean to take issue with Dunn's statement that"[i]f separate indictments had been presented against the defendant . . . and had been separately tried . . . an acquittal on one could not be pleaded as res judicata of the other."The latter statement, if not incorrect at the time, see United States v. Oppenheimer, 242 U. S. 85, 242 U. S. 87 (1916), can no longer be accepted in light of cases such as Sealfon v. United States, 332 U. S. 575 (1948), and Ashe v. Swenson, 397 U. S. 436 (1970), which hold that the doctrine of collateral estoppel would apply under those circumstances. Respondent argues that this defect in Dunn's rationale precludes the rule's application in this case; indeed, respondent urges that principles of res judicata or collateral estoppel should apply to verdicts rendered by a single jury, to preclude acceptance of a guilty verdict on a telephone facilitation count where the jury acquits the defendant of the predicate felony.We believe that the Dunn rule rests on a sound rationale that is independent of its theories of res judicata, and that it therefore survives an attack based upon its presently erroneous reliance on such theories. As the Dunn Court noted, where truly inconsistent verdicts have been reached,"[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were Page 469 U. S. 65 not convinced of the defendant's guilt."Dunn, supra, at 284 U. S. 393. The rule that the defendant may not upset such a verdict embodies a prudent acknowledgment of a number of factors. First, as the above quote suggests, inconsistent verdicts -- even verdicts that acquit on a predicate offense while convicting on the compound offense -- should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury's error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution's Double Jeopardy Clause. See Green v. United States, 355 U. S. 184, 355 U. S. 188 (1957); Kepner v. United States, 195 U. S. 100, 195 U. S. 130, 195 U. S. 133 (1904).Inconsistent verdicts therefore present a situation where "error," in the sense that the jury has not followed the court's instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course. Harris v. Rivera, supra, indicates that nothing in the Constitution would require such a protection, and we therefore address the problem only under our supervisory powers over the federal criminal process. For us, the possibility that the inconsistent verdicts may favor the criminal defendant as well as the Government militates against review of such convictions at the defendant's behest. This possibility is a premise of Dunn's alternative rationale -- that such inconsistencies often are a product of jury lenity. Thus, Dunn has been explained by both courts and commentators as a recognition of the jury's historic function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch. See, e.g., United States v. Maybury, Page 469 U. S. 66 274 F.2d 899, 902 (CA2 1960) (Friendly, J.); Bickel, Judge and Jury -- Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev. 649, 652 (1950). Cf. Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 165-156 (1968).The burden of the exercise of lenity falls only on the Government, and it has been suggested that such an alternative should be available for the difficult cases where the jury wishes to avoid an all-or-nothing verdict. See Bickel, supra, at 652. Such an act is, as the Dunn Court recognized, an "assumption of a power which [the jury has] no right to exercise," but the illegality alone does not mean that such a collective judgment should be subject to review. The fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable. [Footnote 7]We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake. Jurors, of course, take an oath to follow the law as charged, and they are expected to follow it. See Adams v. Texas, 448 U. S. 38 (1980). To this end trials generally begin with voir dire, by judge or counsel, seeking to identify those jurors who for whatever reason may Page 469 U. S. 67 be unwilling or unable to follow the law and render an impartial verdict on the facts and the evidence. But with few exceptions, see McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 464 U. S. 556 (1984); Smith v. Phillips, 455 U. S. 209, 455 U. S. 217 (1982), once the jury has heard the evidence and the case has been submitted, the litigants must accept the jury's collective judgment. Courts have always resisted inquiring into a jury's thought processes, see McDonald v. Pless, 238 U. S. 264 (1915); Fed.Rule Evid. 606(b) (stating that jurors are generally incompetent to testify concerning jury deliberations); through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.Finally, we note that a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. See Glasser v. United States, 315 U. S. 60, 315 U. S. 80 (1942); Fed.Rule Crim.Proc. 29(a); cf. Jackson v. Virginia, 443 U. S. 307, 443 U. S. 316, 443 U. S. 319 (1979). This review should be independent of the jury's determination that evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilt beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary.Respondent contends, nevertheless, that an exception to the Dunn rule should be made where the jury acquits a defendant of a predicate felony, but convicts on the compound felony. Such an "exception" falls almost of its own weight. First, the acceptability of this exception is belied by the facts of Dunn itself. In Dunn, the defendant was acquitted of Page 469 U. S. 68 unlawful possession, and unlawful sale, of liquor, but was convicted of maintaining a nuisance by keeping unlawful liquor for sale at a specified place. The same evidence was adduced for all three counts, and Justice Butler's dissent persuasively points out that the jury could not have convicted on the nuisance count without finding that the defendant possessed, or sold, intoxicating liquor. Dunn, 284 U.S. at 284 U. S. 398. Respondent's exception therefore threatens to swallow the rule.Second, respondent's argument that an acquittal on a predicate offense necessitates a finding of insufficient evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper -- the one the jury "really meant." This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. The Government could just as easily -- and erroneously -- argue that since the jury convicted on the compound offense the evidence on the predicate offense must have been sufficient. The problem is that the same jury reached inconsistent results; once that is established principles of collateral estoppel -- which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict -- are no longer useful.This problem is not altered when the trial judge instructs the jury that it must find the defendant guilty of the predicate offense to convict on the compound offense. Although such an instruction might indicate that the counts are no longer independent, if inconsistent verdicts are nevertheless reached those verdicts still are likely to be the result of mistake, or lenity, and therefore are subject to the Dunn rationale. Given this impasse, the factors detailed above the Government's inability to invoke review, the general Page 469 U. S. 69 reluctance to inquire into the workings of the jury, and the possible exercise of lenity -- suggest that the best course to take is simply to insulate jury verdicts from review on this ground. [Footnote 8]Turning to the case at hand, respondent argues that the jury could not properly have acquitted her of conspiracy to possess cocaine and possession of cocaine, and still found her guilty of using the telephone to facilitate those offenses. The Government does not dispute the inconsistency here. For the reasons previously stated, however, there is no reason to vacate respondent's conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted. The rule established in Dunn v. United States has stood without exception in this Court for 53 years. If it is to remain that way, and we think it should, the judgment of the Court of Appeals must beReversed

U.S. Supreme CourtUnited States v. Powell, 469 U.S. 57 (1984)United States v. PowellNo. 83-1307Argued November 5, 1984Decided December 10, 1984469 U.S. 57SyllabusRespondent was indicted on a number of counts for violations of the federal narcotics laws. Count 1 charged her with conspiracy to possess cocaine with intent to distribute it. The "overt acts" listed in support of this conspiracy included tapped telephone conversations indicating that respondent was helping her husband and son distribute drugs and collect money for drugs sold. Count 9 charged respondent with possession of a specific quantity of cocaine with intent to distribute it. Counts 3-6 charged respondent with the compound offenses of using the telephone in "committing and in causing and facilitating" the alleged conspiracy and possession, in violation of 21 U.S.C. § 843(b). The jury acquitted respondent of Counts 1, 6, and 9, but convicted her of Counts 3-5. On appeal, respondent argued that the verdicts were inconsistent, and that therefore she was entitled to reversal of the telephone facilitation convictions. The Court of Appeals agreed. It acknowledged the rule of Dunn v. United States, 284 U. S. 390, that a defendant convicted by a jury on one count cannot attack the conviction because it was inconsistent with the verdict of acquittal on another count. It was of the view, however, that situations where a defendant has been convicted under § 843(b) but acquitted of the felony he is charged with facilitating constitute exceptions to the rule, and that in those situations the § 843(b) conviction must be reversed. The court explained that an acquittal on the predicate felony necessarily indicated that there was insufficient evidence to support the telephone facilitation convictions, and mandated acquittal on the telephone facilitation counts as well.Held: There is no reason to vacate respondent's telephone facilitation convictions merely because the verdicts cannot rationally be reconciled. Pp. 469 U. S. 62-69.(a) The Dunn rule embodies a prudent acknowledgment of a number of factors. First, inconsistent verdicts -- even verdicts that acquit on a predicate offense while convicting on the compound offense -- should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has Page 469 U. S. 58 no recourse if it wishes to correct the jury's error. The fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable at the defendant's behest. Pp. 469 U. S. 64-66.(b) A rule that would allow defendants to challenge inconsistent verdicts on the ground that they were not the result of lenity but of some error that worked against the defendants, would be imprudent and unworkable. It would be based on pure speculation or would require inquiries into the jury's deliberations that courts generally will not undertake. Pp. 469 U. S. 66-67.(c) A criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. P. 469 U. S. 67.(d) To grant an exception to the Dunn rule where the jury acquits a defendant of a predicate felony but convicts on the compound felony, would threaten to swallow the rule. And the argument that an acquittal on the predicate offense necessitates a finding of insufficient evidence on the compound felony simply misunderstands the nature of the inconsistent verdict problem, since it necessarily incorrectly assumes that the acquittal was proper. Pp. 469 U. S. 67-69.(e) Here, respondent was given the benefit of her acquittal on the conspiracy count, and it is neither irrational nor illogical to require her to accept the burden of conviction on the telephone facilitation counts. P. 469 U. S. 69.708 F.2d 455 and 719 F.2d 1480, reversed.REHNQUIST, J., delivered the opinion for a unanimous Court.

1998_98-231

sen, Jr., John J. Galban, Jeremy G. Epstein, Stephen J. Marzen, Meredith Kolsky Lewis, Andrew J. Wertheim, and Lisa T. Simpson.*JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether, in an action for money damages, a United States District Court has the power to issue a preliminary injunction preventing the defendant from transferring assets in which no lien or equitable interest is claimed.IPetitioner Grupo Mexicano de Desarrollo, S. A. (GMD), is a Mexican holding company. In February 1994, GMD issued $250 million of 8.25% unsecured, guaranteed notes due in 2001 (Notes), which ranked pari passu in priority of payment with all of GMD's other unsecured and unsubordinated debt. Interest payments were due in February and August of every year. Four subsidiaries of GMD (which are the remaining petitioners) guaranteed the Notes. Respondents are investment funds which purchased approximately $75 million of the Notes.Between 1990 and 1994, GMD was involved in a toll road construction program sponsored by the Government of Mexico. In order to elicit private financing, the Mexican Government granted concessions to companies that would build and operate the system of toll roads. GMD was both an investor in the concessionaries and among the construction companies hired by the concessionaries to build the toll* Daniel W Krasner filed a brief for the Dominican Republic urging reversal.Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Edward C. DuMont, Michael Jay Singer, and Peter J. Smith; and for the Securities Industry Association et al. by Richard A. Rosen and Robert S. Smith.311roads. Problems in the Mexican economy resulted in severe losses for the concessionaries, who were therefore unable to pay contractors like GMD. In response to these problems, in 1997, the Mexican Government announced the Toll Road Rescue Program, under which it would issue guaranteed notes (Toll Road Notes) to the concessionaries, in exchange for their ceding to the Government ownership of the toll roads. The Toll Road Notes were to be used to pay the bank debt of the concessionaries, and also to pay outstanding receivables held by GMD and other contractors for services rendered to the concessionaries (Toll Road Receivables). In the fall of 1997, GMD announced that it expected to receive approximately $309 million of Toll Road Notes under the program.Because of the downturn in the Mexican economy and the related difficulties in the toll road program, by mid-1997 GMD was in serious financial trouble. In addition to the Notes, GMD owed other debts of about $450 million. GMD's 1997 Form 20-F, which was filed with the Securities and Exchange Commission on June 30, 1997, stated that GMD's current liabilities exceeded its current assets and that there was "substantial doubt" whether it could continue as a going concern. As a result of these financial problems, neither GMD nor its subsidiaries (who had guaranteed payment) made the August 1997 interest payment on the Notes.Between August and December 1997, GMD attempted to negotiate a restructuring of its debt with its creditors. On August 26, Reuters reported that GMD was negotiating with the Mexican banks to reduce its $256 million bank debt, and that it planned to deal with this liability before negotiating with the investors owning the Notes. On October 28, GMD publicly announced that it would place in trust its right to receive $17 million of Toll Road Notes, to cover employee compensation payments, and that it had transferred its right to receive $100 million of Toll Road Notes to the Mexican312Government (apparently to pay back taxes). GMD also negotiated with the holders of the Notes (including respondents) to restructure that debt, but by December these negotiations had failed.On December 11, respondents accelerated the principal amount of their Notes, and, on December 12, filed suit for the amount due in the United States District Court for the Southern District of New York (petitioners had consented to personal jurisdiction in that forum). The complaint alleged that "GMD is at risk of insolvency, if not insolvent already"; that GMD was dissipating its most significant asset, the Toll Road Notes, and was preferring its Mexican creditors by its planned allocation of Toll Road Notes to the payment of their claims, and by its transfer to them of Toll Road Receivables; and that these actions would "frustrate any judgment" respondents could obtain. App. 29-30. Respondents sought breach-of-contract damages of $80.9 million, and requested a preliminary injunction restraining petitioners from transferring the Toll Road Notes or Receivables. On that same day, the District Court entered a temporary restraining order preventing petitioners from transferring their right to receive the Toll Road Notes.On December 23, the District Court entered an order in which it found that "GMD is at risk of insolvency if not already insolvent"; that the Toll Road Notes were GMD's "only substantial asset"; that GMD planned to use the Toll Road Notes "to satisfy its Mexican creditors to the exclusion of [respondents] and other holders of the Notes"; that "[i]n light of [petitioners'] financial condition and dissipation of assets, any judgment [respondents] obtain in this action will be frustrated"; that respondents had demonstrated irreparable injury; and that it was "almost certain" that respondents would succeed on the merits of their claim. App. to Pet. for Cert. 25a-26a. It preliminarily enjoined petitioners "from dissipating, disbursing, transferring, conveying, encumbering313or otherwise distributing or affecting any [petitioner's] right to, interest in, title to or right to receive or retain, any of the [Toll Road Notes]." Id., at 26a. The court ordered respondents to post a $50,000 bond.The Second Circuit affirmed. 143 F.3d 688 (1998). We granted certiorari, 525 U. S. 1015 (1998).IIRespondents contend that events subsequent to petitioners' appeal of the preliminary injunction render this case moot. While that appeal was pending in the Second Circuit, the case proceeded in the District Court. Petitioners filed an answer and asserted various counterclaims. On April 17, 1998, the District Court granted summary judgment to respondents on their contract claim and dismissed petitioners' counterclaims. The court ordered petitioners to pay respondents $82,444,259 by assignment or transfer of Toll Road Receivables or Toll Road Notes; the court also converted the preliminary injunction into a permanent injunction pending such assignment or transfer. Although petitioners initially appealed both portions of this order to the Second Circuit, they later abandoned their appeal from the permanent injunction. The appeal from the payment order is still pending in the Second Circuit. The same date the District Court entered judgment, respondents moved to dismiss petitioners' first appeal-the one now before us-arguing that the final judgment rendered the appeal moot. On May 4, the Second Circuit denied the motion to dismiss and two days later affirmed, as mentioned above, the District Court's grant of the preliminary injunction.Respondents argue that the issue of the propriety of the preliminary injunction is moot because that injunction is now merged into the permanent injunction. Petitioners contend that the case is not moot because, if we hold that the District Court was without power to issue the preliminary injunction,314then under Federal Rules of Civil Procedure 65(c) and 65.11 they will have a claim against the injunction bond. They assert that the injunction "interfered with GMD's efforts to restructure its debt and substantially impaired GMD's ability to continue its operations in the ordinary course of business." Brief for Petitioners 7. Respondents concede that a party who has been wrongfully enjoined has a claim on the bond, but they argue that although such a claim might mean that the case is not moot, it does not prevent this interlocutory appeal from becoming moot. In any event, say respondents, because a claim for wrongful injunction requires that the enjoined party win on the ultimate merits, petitioners have forfeited any claim by failing to appeal the portion of the District Court's judgment converting the preliminary injunction into a permanent injunction.Generally, an appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter. We have dismissed appeals in such circumstances. See, e. g., Smith v. Illinois Bell Telephone Co., 270 U. S. 587, 588-589 (1926). We agree with petitioners, however, that their potential cause of action against the injunction bond preserves our jurisdiction over this appeal. Cf. Liner v. Jafco, Inc., 375 U. S. 301, 305-306 (1964).In the case of the usual preliminary injunction, the plaintiff seeks to enjoin, pending the outcome of the litigation, action that he claims is unlawful. If his lawsuit turns out to be meritorious-if he is found to be entitled to the permanent injunction that he seeks-even if the preliminary injunction was wrongly issued (because at that stage of the1 Rule 65(c) provides that an applicant for a preliminary injunction must obtain security "for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained." Rule 65.1 states in part that "[t]he surety's liability may be enforced on motion without the necessity of an independent action."315litigation the plaintiff's prospects of winning were not sufficiently clear, or the plaintiff was not suffering irreparable injury) its issuance would in any event be harmless error. The final injunction establishes that the defendant should not have been engaging in the conduct that was enjoined. Hence, it is reasonable to regard the preliminary injunction as merging into the final one: If the latter is valid, the former is, if not procedurally correct, at least harmless. A quite different situation obtains in the present case, where (according to petitioners' claim) the substantive validity of the final injunction does not establish the substantive validity of the preliminary one. For the latter was issued not to enjoin unlawful conduct, but rather to render unlawful conduct that would otherwise be permissible, in order to protect the anticipated judgment of the court; and it is the essence of petitioners' claim that such an injunction can be issued only after the judgment is rendered. If petitioners are correct, they have been harmed by issuance of the unauthorized preliminary injunction-and hence should be able to recover on the bond-even if the final injunction is proper. It would make no sense, when this is the claim, to say that the preliminary injunction merges into the final one.22We recognize that respondents alleged in their complaint that the assignments of the rights to receive Toll Road Notes violated the negative pledge clause of the note instrument and the provision that the Notes ranked pari passu with other debt, and therefore that petitioners were not entitled to engage in the restrained conduct. We do not, however, understand the District Court to have made a finding-either in the preliminary injunction order or in the final order-that petitioners' enjoined conduct was unlawful. The mootness of petitioners' claim at the present stage of the proceedings must be assessed on the basis of what that claim is. As shown by the question on which we granted certiorari, it is that the District Court wrongfully entered an order to protect its judgment before the judgment was rendered. If, in fact, petitioners had no right under the note instrument to take the actions that were enjoined, that would presumably be a defense to the action on the injunction bond. See, e. g., Blumenthal v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F. 2d 1049,1054 (CA2 1990); Note, Recovery for Wrongful Interlocutory Injunc-316We reject respondents' argument that the controversy over the bond saves the "case" from mootness, but does not save the "issue" of the validity of the preliminary injunction from mootness. University of Texas v. Camenisch, 451 U. S. 390 (1981), upon which respondents principally rely, is inapposite. In that case a deaf graduate student sued the University of Texas to obtain an injunction requiring the school to pay for a sign-language interpreter for his school work. The District Court granted a preliminary injunction and required the student to post an injunction bond. Pending appeal of that injunction, the university paid for the interpreter, but the student graduated before the Court of Appeals issued its decision. Nevertheless, the Court of Appeals held that the appeal of the preliminary injunction was not moot because the issue of who had to pay for the interpreter remained. We reversed:"The Court of Appeals correctly held that the case as a whole is not moot, since, as that court noted, it remains to be decided who should ultimately bear the cost of the interpreter. However, the issue before the Court of Appeals was not who should pay for the interpreter, but rather whether the District Court had abused its discretion in issuing a preliminary injunction requiring the University to pay for him. The two issues are significantly different, since whether the preliminary injunction should have issued depended on the balance of factors listed in [Fifth Circuit precedent], while whether the University should ultimately bear the cost of the interpreter depends on a final resolution of the merits of Camenisch's case.tions Under Rule 65(c), 99 Harv. L. Rev. 828, 836 (1986). But it does not bear upon the mootness of petitioners' present claim.317"This, then, is simply another instance in which one issue in a case has become moot, but the case as a whole remains alive because other issues have not become moot .... Because the only issue presently before usthe correctness of the decision to grant a preliminary injunction-is moot, the judgment of the Court of Appeals must be vacated and the case must be remanded to the District Court for trial on the merits." Id., at 393-394 (citations omitted).Camenisch is simply an application of the same principle which underlies the rule that a preliminary injunction ordinarily merges into the final injunction. Since the preliminary injunction no longer had any effect (the student had graduated), and since the substantive issue governing the propriety of what had been paid under the preliminary injunction (as opposed to the procedural issue of whether the injunction should have issued when it did) was the same issue underlying the merits claim, there was no sense in trying the preliminary injunction question separately. In the present case, however, petitioners' basis for arguing that the preliminary injunction was wrongfully issued-which is that the District Court lacked the power to restrain their use of assets pending a money judgment-is independent of respondents' claim on the merits-which is that petitioners breached the note instrument by failing to make the August 1997 interest payment. The resolution of the merits is immaterial to the validity of petitioners' potential claim on the bond. Cf. American Can Co. v. Mansukhani, 742 F.2d 314, 320-321 (CA7 1984); Stacey G. v. Pasadena Independent Sch. Dist., 695 F.2d 949, 955 (CA5 1983).For the same reason, petitioners' failure to appeal the permanent injunction does not forfeit their claim that the preliminary injunction was wrongful. Petitioners do not contest the District Court's power to issue a permanent injunction after rendering a money judgment against them,318but they do contest its power to issue a preliminary injunction, and they do so on a ground that has nothing to do with the validity of the permanent injunction. And again for the same reason, we reject respondents' argument that petitioners have no wrongful injunction claim because they lost the case on the merits.IIIWe turn, then, to the merits question whether the District Court had authority to issue the preliminary injunction in this case pursuant to Federal Rule of Civil Procedure 65.3 The Judiciary Act of 1789 conferred on the federal courts jurisdiction over "all suits ... in equity." § 11, 1 Stat. 78. We have long held that "[t]he 'jurisdiction' thus conferred ... is an authority to administer in equity suits the principles of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries." Atlas Life Ins. Co. v. W 1. Southern, Inc., 306 U. S. 563, 568 (1939). See also, e. g., Stainback v. Mo Hock Ke Lok Po, 336 U. S. 368, 382, n. 26 (1949); Guaranty Trust Co. v. York, 326 U. S. 99, 105 (1945); Gordon v. Washington, 295 U. S. 30, 36 (1935). "Substantially, then, the equity jurisdiction of the federal courts is the jurisdiction in equity exercised by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act, 1789 (1 Stat. 73)." A. Dobie, Handbook of Federal Jurisdiction and Procedure 660 (1928). "[T]he substantive prerequisites for obtaining an equitable remedy as3 Although this is a diversity case, respondents' complaint sought the injunction pursuant to Rule 65, and the Second Circuit's decision was based on that rule and on federal equity principles. Petitioners argue for the first time before this Court that under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), the availability of this injunction under Rule 65 should be determined by the law of the forum State (in this case New York). Because this argument was neither raised nor considered below, we decline to consider it.319well as the general availability of injunctive relief are not altered by [Rule 65] and depend on traditional principles of equity jurisdiction." 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2941, p. 31 (2d ed. 1995). We must ask, therefore, whether the relief respondents requested here was traditionally accorded by courts of equity.ARespondents do not even argue this point. The United States as amicus curiae, however, contends that the preliminary injunction issued in this case is analogous to the relief obtained in the equitable action known as a "creditor's bill." This remedy was used (among other purposes) to permit a judgment creditor to discover the debtor's assets, to reach equitable interests not subject to execution at law, and to set aside fraudulent conveyances. See 1 D. Dobbs, Law of Remedies § 2.8(1), pp. 191-192 (2d ed. 1993); 4 S. Symons, Pomeroy's Equity Jurisprudence § 1415, pp. 1065-1066 (5th ed. 1941); 1 G. Glenn, Fraudulent Conveyances and Preferences § 26, p. 51 (rev. ed. 1940). It was well established, however, that, as a general rule, a creditor's bill could be brought only by a creditor who had already obtained a judgment establishing the debt. See, e. g., Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 497 (1923); Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 378-379 (1893); Cates v. Allen, 149 U. S. 451, 457 (1893); National Tube Works Co. v. Ballou, 146 U. S. 517, 523-524 (1892); Scott v. Neely, 140 U. S. 106, 113 (1891); Smith v. Railroad Co., 99 U. S. 398, 401 (1879); Adler v. Fenton, 24 How. 407, 411-413 (1861); see also 4 Symons, supra, at 1067; 1 Glenn, supra, § 9, at 11; F. Wait, Fraudulent Conveyances and Creditors' Bills § 73, pp. 110111 (1884). The rule requiring a judgment was a product, not just of the procedural requirement that remedies at law had to be exhausted before equitable remedies could be pursued, but also of the substantive rule that a general creditor (one without a judgment) had no cognizable interest, either320at law or in equity, in the property of his debtor, and therefore could not interfere with the debtor's use of that property. As stated by Chancellor Kent: "The reason of the rule seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary, and, perhaps, a fruitless and oppressive interruption of the exercise of the debtor's rights." Wiggins v. Armstrong, 2 Johns. Ch. 144, 145-146 (N. Y. 1816). See also, e. g., Guaranty Trust Co., supra, at 106-107, n. 3; Pusey & Jones Co., supra, at 497; Cates, supra, at 457; Adler, supra, at 411-413; Shufeldt v. Boehm, 96 Ill. 560, 564 (1880); 1 Glenn, supra, § 9, at 11; Wait, supra, § 52, at 81, § 73, at 113.The United States asserts that there were exceptions to the general rule requiring a judgment. The existence and scope of these exceptions is by no means clear.4 Cf. G. Glenn, The Rights and Remedies of Creditors Respecting Their Debtor's Property §§ 21-24, pp. 18-21 (1915). Although the United States says that some of them "might have been relevant in a case like this one," Brief for United States as Amicus Curiae 11, it chooses not to resolve (or argue definitively) whether any particular one would have been, id., at 12.5 For their part, as noted above, respondents4 For example, some courts said that insolvency was an exception, but others disagreed. See, e. g., Annot., Of the Demands Which Will Support a Creditor's Bill, 66 American State Reports 271, 285 (1899) (cases are "in almost hopeless conflict"). This Court has concluded that that particular exception does not exist. See, e. g., Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 495-497 (1923); Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 385-386 (1893); Smith v. Railroad Co., 99 U. S. 398, 400-401 (1879).5 Some cases suggested that there was an exception where the debt was admitted or confessed, at least if the creditor possessed an interest in the debtor's property. See, e. g., Scott v. Neely, 140 U. S. 106, 113 (1891); D. A. Tompkins Co. v. Catawba Mills, 82 F.7d 0, 783 (CCSC 1897). Even if the latter condition is overlooked, it is by no means clear that the action here would qualify. Petitioners' answer (filed after the preliminary injunction had issued) denied knowledge or information sufficient to form a belief (which is the equivalent of a denial, see Federal Rule of Civil Procedure 8(b)) as to respondents' allegations that petitioners were currently in-321do not discuss creditor's bills at all. Particularly in the absence of any discussion of this point by the lower courts, we are not inclined to speculate upon the existence or applicability to this case of any exceptions, and follow the wellestablished general rule that a judgment establishing the debt was necessary before a court of equity would interfere with the debtor's use of his property.JUSTICE GINSBURG concedes that federal equity courts have traditionally rejected the type of provisional relief granted in this case. See post, at 338 (opinion concurring in part and dissenting in part). She invokes, however, "the grand aims of equity," and asserts a general power to grant relief whenever legal remedies are not "practical and efficient," unless there is a statute to the contrary. Post, at 342 (internal quotation marks omitted). This expansive view of equity must be rejected. Joseph Story's famous treatise reflects what we consider the proper rule, both with regard to the general role of equity in our "government of laws, not of men," and with regard to its application in the very case before us:"Mr. Justice Blackstone has taken considerable pains to refute this doctrine. 'It is said,' he remarks, 'that it is the business of a Court of Equity, in England, to abate the rigor of the common law. But no such power is contended for. Hard was the case of bond creditors, whose debtor devised away his real estate .... But a Court of Equity can give no relief .... ' And illustrations of the same character may be found in every state of the Union .... In many [States], if not in all, a debtor may prefer one creditor to another, in discharging his debts, whose assets are wholly insufficient to pay all thedebted to respondents in the amount of $80.9 million, and that petitioners breached their agreements under the Notes and the related guarantee; and denied respondents' allegations that all conditions precedent to suit had occurred, been waived, or otherwise been satisfied, and that respondents had suffered damages of $80.9 million.322debts." 1 Commentaries on Equity Jurisprudence § 12, pp. 14-15 (1836).See also infra, at 332-333. We do not question the proposition that equity is flexible; but in the federal system, at least, that flexibility is confined within the broad boundaries of traditional equitable relief. To accord a type of relief that has never been available before-and especially (as here) a type of relief that has been specifically disclaimed by longstanding judicial precedent-is to invoke a "default rule," post, at 342, not of flexibility but of omnipotence. When there are indeed new conditions that might call for a wrenching departure from past practice, Congress is in a much better position than we both to perceive them and to design the appropriate remedy. Despite JUSTICE GINSBURG'S allusion to the "increasing complexities of modern business relations," post, at 337 (internal quotation marks omitted), and to the bygone "age of slow-moving capital and comparatively immobile wealth," post, at 338, we suspect there is absolutely nothing new about debtors' trying to avoid paying their debts, or seeking to favor some creditors over others-or even about their seeking to achieve these ends through "sophisticated ... strategies," ibid. The law of fraudulent conveyances and bankruptcy was developed to prevent such conduct; an equitable power to restrict a debtor's use of his unencumbered property before judgment was not.Respondents argue (supported by the United States) that the merger of law and equity changed the rule that a general creditor could not interfere with the debtor's use of his property. But the merger did not alter substantive rights. "Notwithstanding the fusion of law and equity by the Rules of Civil Procedure, the substantive principles of Courts of Chancery remain unaffected." Stainback, 336 U. S., at 382, n. 26. Even in the absence of historical support, we would not be inclined to believe that it is merely a question of procedure whether a person's unencumbered assets can be323frozen by general-creditor claimants before their claims have been vindicated by judgment. It seems to us that question goes to the substantive rights of all property owners. In any event it appears, as we have observed, that the rule requiring a judgment was historically regarded as serving, not merely the procedural end of assuring exhaustion of legal remedies (which the merger of law and equity could render irrelevant), but also the substantive end of giving the creditor an interest in the property which equity could then act upon. See supra, at 319-320.6We note that none of the parties or amici specifically raised the applicability to this case of Federal Rule of Civil Procedure 18(b), which states:"Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to that plaintiff, without first having obtained a judgment establishing the claim for money."6 As we stated in Adler v. Fenton, 24 How. 407, 411-412 (1861): '''Our laws determine with accuracy the time and manner in which the property of a debtor ceases to be subject to his disposition, and becomes subject to the rights of his creditor. A creditor acquires a lien upon the lands of his debtor by a judgment; and upon the personal goods of the debtor, by the delivery of an execution to the sheriff. It is only by these liens that a creditor has any vested or specific right in the property of his debtor. Before these liens are acquired, the debtor has full dominion over his property; he may convert one species of property into another, and he may alienate to a purchaser. The rights of the debtor, and those of a creditor, are thus defined by positive rules; and the points at which the power of the debtor ceases, and the right of the creditor commences, are clearly established. These regulations cannot be contravened or varied by any interposition of equity'" (quoting Moran v. Dawes, 1 Hopk. Ch. 365, 367 (N. Y. 1825)).324Because the Rule was neither mentioned by the lower courts nor briefed by the parties, we decline to consider its application to the present case. We note, however, that it says nothing about preliminary relief, and specifically reserves substantive rights (as did the Rules Enabling Act, see 28 U. S. C. § 2072(b)).7BRespondents contend that two of our postmerger cases support the District Court's order "in principle." Brief for Respondents 22. We find both of these cases entirely consistent with the view that the preliminary injunction in this case was beyond the equitable authority of the District Court.In Deckert v. Independence Shares Corp., 311 U. S. 282 (1940), purchasers of certificates that entitled the holders to invest in a trust of common stocks sued the company that sold the certificates and the company administering the trust, and related officers and affiliates, under the Securities Act of 1933, alleging that the sale was fraudulent. They further alleged that the company that sold the certificates was insolvent, that it was likely to make preferential payments to certain creditors, and that its assets were in danger of dissipation. They sought the appointment of a receiver and an injunction restraining the company administering the trust from transferring any assets of the corporations or of the trust. The District Court preliminarily enjoined the company from transferring a fixed sum. Id., at 285-286.7 Several States have adopted the Uniform Fraudulent Conveyance Act (or its successor the Uniform Fraudulent Transfers Act), which has been interpreted as conferring on a nonjudgment creditor the right to bring a fraudulent conveyance claim. See generally P. Alces, Law of Fraudulent Transactions ~ 5.04[3], p. 5-116 (1989). Insofar as Rule 18(b) applies to such an action, the state statute eliminating the need for a judgment may have altered the common-law rule that a general contract creditor has no interest in his debtor's property. Because this case does not involve a claim of fraudulent conveyance, we express no opinion on the point.325After deciding that the Securities Act permitted equitable relief, we concluded that the bill stated a cause of action for the equitable remedies of rescission of the contracts and restitution of the consideration paid, id., at 287-288, and that the preliminary injunction "was a reasonable measure to preserve the status quo pending final determination of the questions raised by the bill," id., at 290. Deckert is not on point here because, as the Court took pains to explain, "the bill state[d] a cause [of action] for equitable relief." Id., at 288."The principal objects of the suit are rescission of the Savings Plan contracts and restitution of the consideration paid .... That a suit to rescind a contract induced by fraud and to recover the consideration paid may be maintained in equity, at least where there are circumstances making the legal remedy inadequate, is well established." Id., at 289.The preliminary relief available in a suit seeking equitable relief has nothing to do with the preliminary relief available in a creditor's bill seeking equitable assistance in the collection of a legal debt.In the second case relied on by respondents, United States v. First Nat. City Bank, 379 U. S. 378 (1965), the United States, in its suit to enforce a tax assessment and tax lien, requested a preliminary injunction preventing a third-party bank from transferring any of the taxpayer's assets which were held in a foreign branch office of the bank. Id., at 379380. Relying on a statute giving district courts the power to grant injunctions "'necessary or appropriate for the enforcement of the internal revenue laws,'" id., at 380 (quoting former 26 U. S. C. § 7402(a) (1964 ed.)), we concluded that the temporary injunction was "appropriate to prevent further dissipation of assets," 379 U. S., at 385. We stated that if a district court could not issue such an injunction, foreign taxpayers could avoid their tax obligations.326First National is distinguishable from the present case on a number of grounds. First, of course, it involved not the Court's general equitable powers under the Judiciary Act of 1789, but its powers under the statute authorizing issuance of tax injunctions.8 Second, First National relied in part on the doctrine that courts of equity will "'go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved,'" id., at 383 (quoting Virginian R. Co. v. Railway Employees, 300 U. S. 515, 552 (1937)). And finally, although the Court did not rely on this fact, the creditor (the Government) asserted an equitable lien on the property, see 379 U. S., at 379-380, which presents a different case from that of the unsecured general creditor.That Deckert and First National should not be read as establishing the principle relied on by respondents is strongly suggested by De Beers Consolo Mines, Ltd. v. United States, 325 U. S. 212 (1945). In that case the United States brought suit against several corporations seeking equitable relief against alleged antitrust violations. The United States also sought a preliminary injunction restraining the defendants from removing their assets from this country pending adjudication of the merits. We concluded that the injunction was beyond the power of the District Court. We stated that "[a] preliminary injunction is always appropriate to grant intermediate relief of the same character as that which may be granted finally," but that the injunction in that case dealt "with a matter lying wholly out-8 Although the United States suggests that there is statutory support for the present injunction in the All Writs Act, 28 U. S. C. § 1651, Brief for United States as Amicus Curiae 18, we have said that the power conferred by the predecessor of that provision is defined by "what is the usage, and what are the principles of equity applicable in such a case." De Beers Consolo Mines, Ltd. V. United States, 325 U. S. 212, 219 (1945). That is the very inquiry in which we have engaged.327side the issues in the suit." Id., at 220. We pointed out that "Federal and State courts appear consistently to have refused relief of the nature here sought," id., at 221, and we concluded:"To sustain the challenged order would create a precedent of sweeping effect. This suit, as we have said, is not to be distinguished from any other suit in equity. What applies to it applies to all such. Every suitor who resorts to chancery for any sort of relief by injunction may, on a mere statement of belief that the defendant can easily make away with or transport his money or goods, impose an injunction on him, indefinite in duration, disabling him to use so much of his funds or property as the court deems necessary for security or compliance with its possible decree. And, if so, it is difficult to see why a plaintiff in any action for a personal judgment in tort or contract may not, also, apply to the chancellor for a so-called injunction sequestrating his opponent's assets pending recovery and satisfaction of a judgment in such a law action. No relief of this character has been thought justified in the long history of equity jurisprudence." I d., at 222-223.The statements in the last two sentences, though dictum, confirms that the relief sought by respondents does not have a basis in the traditional powers of equity courts.CAs further support for the proposition that the relief accorded here was unknown to traditional equity practice, it is instructive that the English Court of Chancery, from which the First Congress borrowed in conferring equitable powers on the federal courts, did not provide an injunctive remedy such as this until 1975. In that year, the Court of Appeal decided Mareva Compania Naviera S. A. v. International328Bulkcarriers S. A., 2 Lloyd's Rep. 509.9 Mareva, although acknowledging that the prior case of Lister & Co. v. Stubbs, [1890] 45 Ch. D. 1 (C. A.), said that a court has no power to protect a creditor before he gets judgment,10 relied on a statute giving courts the authority to grant an interlocutory injunction "'in all cases in which it shall appear to the court to be just or convenient,'" 2 Lloyd's Rep., at 510 (quoting Judicature Act of 1925, Law Reports 1925 (2), 15 & 16 Geo. V, ch. 49, § 45). It held (in the words of Lord Denning) that "[i]f it appears that the debt is due and owing-and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment-the Court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him [sic] disposing of those assets." 2 Lloyd's Rep., at 510. The Mareva injunction has now been confirmed by statute. See Supreme Court Act of 1981, § 37, 11 Halsbury's Statutes 966, 1001 (1991 reissue).Commentators have emphasized that the adoption of Mareva injunctions was a dramatic departure from prior practice."Before 1975 the courts would not grant an injunction to restrain a defendant from disposing of his assets pen-9 Apparently the first "Mareva" injunction was actually issued in Nippon Yusen Kaisha v. Karageorgis, [1975] 2 Lloyd's Rep. 137 (C. A.), in which Lord Denning recognized the prior practice of not granting such injunctions, but stated that "the time has come when we should revise our practice." Id., at 138; see also Hetherington, Introduction to the Mareva Injunction, in Mareva Injunctions 1, n. 1 (M. Hetherington ed. 1983). For whatever reason, Mareva has gotten the credit (or blame), and we follow the tradition of leaving Nippon Yusen in the shadows.10 In Lister & Co. v. Stubbs, 45 Ch. D., at 1, 13, the Court of Appeal held that an injunction restraining the defendant's use of assets could not be issued. Lord Justice Cotton stated: "I know of no case where, because it was highly probable that if the action were brought to a hearing the plaintiff could establish that a debt was due to him from the defendant, the defendant has been ordered to give security until that has been established by the judgment or decree."329dente lite merely because the plaintiff feared that by the time he obtained judgment the defendant would have no assets against which execution could be levied. Applications for such injunctions were consistently refused in the English Commercial Court as elsewhere. They were thought to be so clearly beyond the powers of the court as to be 'wholly unarguable.'" Hetherington, supra n. 9, at 3.See also Wasserman, Equity Renewed: Preliminary Injunctions to Secure Potential Money Judgments, 67 Wash. L. Rev. 257, 337 (1992) (stating that Mareva "revolutionized English practice"). The Mareva injunction has been recognized as a powerful tool for general creditors; indeed, it has been called the "nuclear weapo[n] of the law." R. Ough & w. Flenley, The Mareva Injunction and Anton Piller Order:Practice and Precedents xi (2d ed. 1993).The parties debate whether Mareva was based on statutory authority or on inherent equitable power. See Brief for Petitioners 17, n. 8; Brief for Respondents 35-36. Regardless of the answer to this question, it is indisputable that the English courts of equity did not actually exercise this power until 1975, and that federal courts in this country have traditionally applied the principle that courts of equity will not, as a general matter, interfere with the debtor's disposition of his property at the instance of a nonjudgment creditor. We think it incompatible with our traditionally cautious approach to equitable powers, which leaves any substantial expansion of past practice to Congress, to decree the elimination of this significant protection for debtors.IVThe parties and amici discuss various arguments for and against creating the preliminary injunctive remedy at issue in this case. The United States suggests that the factors supporting such a remedy include330"simplicity and uniformity of procedure; preservation of the court's ability to render a judgment that will prove enforceable; prevention of inequitable conduct on the part of defendants; avoiding disparities between defendants that have assets within the jurisdiction (which would be subject to pre-judgment attachment 'at law') and those that do not; avoiding the necessity for plaintiffs to locate a forum in which the defendant has substantial assets; and, in an age of easy global mobility of capital, preserving the attractiveness of the United States as a center for financial transactions." Brief for United States as Amicus Curiae 16.But there are weighty considerations on the other side as well, the most significant of which is the historical principle that before judgment (or its equivalent) an unsecured creditor has no rights at law or in equity in the property of his debtor. As one treatise writer explained:"A rule of procedure which allowed any prowling creditor, before his claim was definitely established by judgment, and without reference to the character of his demand, to file a bill to discover assets, or to impeach transfers, or interfere with the business affairs of the alleged debtor, would manifestly be susceptible of the grossest abuse. A more powerful weapon of oppression could not be placed at the disposal of unscrupulous litigants." Wait, Fraudulent Conveyances § 73, at 110-111.The requirement that the creditor obtain a prior judgment is a fundamental protection in debtor-creditor law-rendered all the more important in our federal system by the debtor's right to a jury trial on the legal claim. There are other factors which likewise give us pause: The remedy sought here could render Federal Rule of Civil Procedure 64, which authorizes use of state prejudgment remedies, a virtual irrelevance. Why go through the trouble of complying with local331attachment and garnishment statutes when this all-purpose prejudgment injunction is available? More importantly, by adding, through judicial fiat, a new and powerful weapon to the creditor's arsenal, the new rule could radically alter the balance between debtor's and creditor's rights which has been developed over centuries through many lawsincluding those relating to bankruptcy, fraudulent conveyances, and preferences. Because any rational creditor would want to protect his investment, such a remedy might induce creditors to engage in a "race to the courthouse" in cases involving insolvent or near-insolvent debtors, which might prove financially fatal to the struggling debtor. (In this case, we might observe, the respondents did not represent all of the holders of the Notes; they were an active few who sought to benefit at the expense of the other noteholders as well as GMD's other creditorsY) It is significant that, in England, use of the Mareva injunction has expanded rapidly. "Since 1975, the English courts have awarded Mareva injunctions to freeze assets in an ever-increasing set of circumstances both within and beyond the commercial setting to an ever-expanding number of plaintiffs." Wasserman, supra, at 339. As early as 1984, one observer stated that "[t]here are now a steady flow of such applications to our Courts which have been estimated to exceed one thou-llJUSTICE GINSBURG suggests that respondents acted to benefit all of GMD's creditors. See post, at 341, n. 6. But respondents' complaint sought the full amount they were allegedly owed, despite their contention that petitioners could not pay all their creditors. It is not clear that the "trust in compliance with Mexican law" that respondents proposed as a possible preliminary remedy, ibid., was to be for the benefit of all creditors, rather than respondents alone-but that remedy was in any event denied, which did not deter respondents from seeking a simple freeze on assets to satisfy their anticipated judgment. There is nothing whatever wrong with respondents' pursuing their own interests. Indeed, the fact that it is entirely proper and entirely predictable is the very premise of the point we are making: that this new remedy will promote unregulated competition among the creditors of a struggling debtor.332sand per month." Shenton, Attachments and Other Interim Court Remedies in Support of Arbitration, 1984 Int'l Bus. Law. 101, 104.We do not decide which side has the better of these arguments. We set them forth only to demonstrate that resolving them in this forum is incompatible with the democratic and self-deprecating judgment we have long since made: that the equitable powers conferred by the Judiciary Act of 1789 did not include the power to create remedies previously unknown to equity jurisprudence. Even when sitting as a court in equity, we have no authority to craft a "nuclear weapon" of the law like the one advocated here. Joseph Story made the point many years ago:"If, indeed, a Court of Equity in England did possess the unbounded jurisdiction, which has been thus generally ascribed to it, of correcting, controlling, moderating, and even superceding the law, and of enforcing all the rights, as well as charities, arising from natural law and justice, and of freeing itself from all regard to former rules and precedents, it would be the most gigantic in its sway, and the most formidable instrument of arbitrary power, that could well be devised. It would literally place the whole rights and property of the community under the arbitrary will of the Judge, acting, if you please, arbitrio boni judicis, and it may be, ex aequo et bono, according to his own notions and conscience; but still acting with a despotic and sovereign authority. A Court of Chancery might then well deserve the spirited rebuke of Seldon; 'For law we have a measure, and know what to trust to-Equity is according to the conscience of him, that is Chancellor; and as that is larger, or narrower, so is Equity. 'T is all one, as if they should make the standard for the measure the Chancellor's foot. What an uncertain measure would this be? One Chancellor has a long foot; another a short foot; a third an indifferent foot. It333is the same thing with the Chancellor's conscience.'" 1 Commentaries on Equity Jurisprudence § 19, at 21.The debate concerning this formidable power over debtors should be conducted and resolved where such issues belong in our democracy: in the Congress.***Because such a remedy was historically unavailable from a court of equity, we hold that the District Court had no authority to issue a preliminary injunction preventing petitioners from disposing of their assets pending adjudication of respondents' contract claim for money damages. We reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusGRUPO MEXICANO DE DESARROLLO, S. A., ET AL. v.ALLIANCE BOND FUND, INC., ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 98-231. Argued March 31, 1999-Decided June 17, 1999Respondent investment funds purchased unsecured notes (Notes) from petitioner Grupo Mexicano de Desarrollo, S. A. (GMD), a Mexican holding company. Four GMD subsidiaries (also petitioners) guaranteed the Notes. After GMD fell into financial trouble and missed an interest payment on the Notes, respondents accelerated the Notes' principal amount and filed suit for the amount due in Federal District Court. Alleging that GMD was at risk of insolvency, or already insolvent, that it was preferring its Mexican creditors by its planned allocation to them of its most valuable assets, and that these actions would frustrate any judgment respondents could obtain, respondents requested a preliminary injunction restraining petitioners from transferring the assets. The court issued the preliminary injunction and ordered respondents to post a $50,000 bond. The Second Circuit affirmed.Held:1. This case has not been rendered moot by the District Court's granting summary judgment to respondents on their contract claim and converting the preliminary injunction into a permanent injunction. Generally, the appeal of a preliminary injunction becomes moot when the trial court enters a permanent injunction because the former merges into the latter. Here, however, petitioners' potential cause of action against the injunction bond for wrongful injunction suffices to preserve the Court's jurisdiction, since petitioners' argument that the District Court lacked the power to restrain their use of assets pending a money judgment is independent of their defense against the money judgment on the merits. For the same reason, petitioners' failure to appeal the conversion of the preliminary injunction into a permanent injunction does not forfeit their claim on the bond. Pp. 313-318.2. The District Court lacked the authority to issue a preliminary injunction preventing petitioners from disposing of their assets pending adjudication of respondents' contract claim for money damages because such a remedy was historically unavailable from a court of equity. Pp. 318-333.309(a) The federal courts have the equity jurisdiction that was exercised by the English Court of Chancery at the time the Constitution was adopted and the Judiciary Act of 1789 was enacted. Pp. 318-319.(b) The well-established general rule was that a judgment fixing the debt was necessary before a court in equity would interfere with the debtor's use of his property. See, e. g., Pusey & Jones Co. v. Hanssen, 261 U. S. 491, 497. It is by no means clear that there are any exceptions to the general rule relevant to this case, and the lower courts did not address this point. The merger of law and equity did not change the rule, since the merger did not alter substantive rights. The rule was regarded as serving not merely the procedural end of assuring exhaustion of legal remedies, but also the substantive end of giving the creditor an interest in the property which equity could act upon. Pp. 319-324.(c) The postmerger cases of Deckert v. Independence Shares Corp., 311 U. S. 282, United States v. First Nat. City Bank, 379 U. S. 378, and De Beers Consolo Mines, Ltd. V. United States, 325 U. S. 212, are entirely consistent with the view that the preliminary injunction in this case was beyond the District Court's equitable power. Pp. 324-327.(d) The English Court of Chancery did not provide a prejudgment injunctive remedy until 1975, and the decision doing so has been viewed by commentators as a dramatic departure from prior practice. Enjoining the debtor's disposition of his property at the instance of a nonjudgment creditor is incompatible with this Court's traditionally cautious approach to equitable powers, which leaves any substantial expansion of past practice to Congress. pp. 327-329.(e) The various weighty considerations both for and against creating the remedy at issue here should be resolved not in this forum, but in Congress. Pp. 329-333.143 F.3d 688, reversed and remanded.SCALIA, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I, III, and IV, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 333.Richard A. Mescon argued the cause for petitioners.With him on the briefs were Scott S. Balber and Peter Buscemi.Drew S. Days III argued the cause for respondents. With him on the brief were Kenneth W Irvin, Dale C. Christen-310Full Text of Opinion

1986_85-494

JUSTICE MARSHALL delivered the opinion of the Court.The question presented is whether Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, preempts a state statute that requires Page 479 U. S. 275 employers to provide leave and reinstatement to employees disabled by pregnancy.ICalifornia's Fair Employment and Housing Act (FEHA), Cal.Gov't Code Ann. § 12900 et seq. (West 1980 and Supp. 1986), is a comprehensive statute that prohibits discrimination in employment and housing. In September, 1978, California amended the FEHA to proscribe certain forms of employment discrimination on the basis of pregnancy. See Cal. Labor Code Ann. § 1420.35, 1978 Cal.Stats., ch. 1321, § 1, pp. 4320-4322 (West Supp. 1979), now codified at Cal.Gov't Code Ann. § 12945(b)(2) (West 1980). [Footnote 1] Subdivision (b)(2) -- the provision at issue here -- is the only portion of the statute that applies to employers subject to Title VII. See Page 479 U. S. 276 § 12945(e). [Footnote 2] It requires these employers to provide female employees an unpaid pregnancy disability leave of up to four months. Respondent Fair Employment and Housing Commission, the state agency authorized to interpret the FEHA, [Footnote 3] has construed § 12945(b)(2) to require California employers to reinstate an employee returning from such pregnancy leave to the job she previously held, unless it is no longer available due to business necessity. In the latter case, the employer must make a reasonable, good faith effort to place the employee in a substantially similar job. [Footnote 4] The statute does not compel employers to provide paid leave to pregnant employees. Accordingly, the only benefit pregnant workers actually derive from § 12945(b)(2) is a qualified right to reinstatement.Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., also prohibits various forms of employment Page 479 U. S. 277 discrimination, including discrimination on the basis of sex. However, in General Electric Co. v. Gilbert, 429 U. S. 125 (1976), this Court ruled that discrimination on the basis of pregnancy was not sex discrimination under Title VII. [Footnote 5] In response to the Gilbert decision, Congress passed the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k). The PDA specifies that sex discrimination includes discrimination on the basis of pregnancy. [Footnote 6] Page 479 U. S. 278IIPetitioner California Federal Savings & Loan Association (Cal Fed) is a federally chartered savings and loan association based in Los Angeles; it is an employer covered by both Title VII and § 12945(b)(2). Cal Fed has a facially neutral leave policy that permits employees who have completed three months of service to take unpaid leaves of absence for a variety of reasons, including disability and pregnancy. Although it is Cal Fed's policy to try to provide an employee taking unpaid leave with a similar position uponreturning, Cal Fed expressly reserves the right to terminate an employee who has taken a leave of absence if a similar position is not available.Lillian Garland was employed by Cal Fed as a receptionist for several years. In January, 1982, she took a pregnancy disability leave. When she was able to return to work in April of that year, Garland notified Cal Fed, but was informed that her job had been filled and that there were no receptionist or similar positions available. Garland filed a complaint with respondent Department of Fair Employment and Housing, which issued an administrative accusation against Cal Fed on her behalf. [Footnote 7] Respondent charged Cal Fed with violating § 12945(b)(2) of the FEHA. Prior to the scheduled hearing before respondent Fair Employment and Housing Commission, Cal Fed, joined by petitioners Merchants and Manufacturers Association and the California Chamber of Commerce, [Footnote 8] brought this action in the United States District Court for the Central District of California. Page 479 U. S. 279 They sought a declaration that § 12945(b)(2) is inconsistent with and preempted by Title VII and an injunction against enforcement of the section. [Footnote 9] The District Court granted petitioners' motion for summary judgment. 33 EPD � 34,227, p. 32781, 34 FEP Cases 562 (1984). Citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 (1983), [Footnote 10] the court stated that"California employers who comply with state law are subject to reverse discrimination suits under Title VII brought by temporarily disabled males who do not receive the same treatment as female employees disabled by pregnancy. . . ."34 FEP Cases at 568. On this basis, the District Court held that"California state law and the policies of interpretation and enforcement . . . which require preferential treatment of female employees disabled by pregnancy, childbirth, or related medical conditions are preempted by Title VII and are null, void, invalid and inoperative under the Supremacy Clause of the United States Constitution."Ibid. [Footnote 11] Page 479 U. S. 280The United States Court of Appeals for the Ninth Circuit reversed. 758 F.2d 390 (1985). It held that"the district court's conclusion that section 12945(b)(2) discriminates against men on the basis of pregnancy defies common sense, misinterprets case law, and flouts Title VII and the PDA."Id. at 393 (footnote omitted). Based on its own reading of Newport News, the Court of Appeals found that the PDA does not "demand that state law be blind to pregnancy's existence." 758 F.2d at 395. The court held that, in enacting the PDA, Congress intended "to construct a floor beneath which pregnancy disability benefits may not drop -- not a ceiling above which they may not rise." Id. at 396. Because it found that the California statute furthers the goal of equal employment opportunity for women, the Court of Appeals concluded:"Title VII does not preempt a state law that guarantees pregnant women a certain number of pregnancy disability leave days, because this is neither inconsistent with, nor unlawful under, Title VII."Ibid.We granted certiorari, 474 U.S. 1049 (1986), and we now affirm.IIIAIn determining whether a state statute is preempted by federal law and therefore invalid under the Supremacy Clause of the Constitution, our sole task is to ascertain the intent of Congress. See Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 463 U. S. 95 (1983); Malone v. White Motor Corp., 435 U. S. 497, 435 U. S. 504 (1978). Federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to preempt state law by so stating in express terms. E.g., Jones v. Rath Packing Co., 430 U. S. 519, 430 U. S. 525 (1977). Second, congressional intent Page 479 U. S. 281 to preempt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). Neither of these bases for preemption exists in this case. Congress has explicitly disclaimed any intent categorically to preempt state law or to "occupy the field" of employment discrimination law. See 42 U.S.C. §§ 2000e-7 and 2000h-4.As a third alternative, in those areas where Congress has not completely displaced state regulation, federal law may nonetheless preempt state law to the extent it actually conflicts with federal law. Such a conflict occurs either because "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963), or because the state law stands "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941). See Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., 467 U. S. 461, 467 U. S. 478 (1984); Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 458 U. S. 156 (1982). Nevertheless, preemption is not to be lightly presumed. See Maryland v. Louisiana, 451 U. S. 725, 451 U. S. 746 (1981).This third basis for preemption is at issue in this case. In two sections of the 1964 Civil Rights Act, §§ 708 and 1104, Congress has indicated that state laws will be preempted only if they actually conflict with federal law. Section 708 of Title VII provides:"Nothing in this title shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment Page 479 U. S. 282 practice under this title."78 Stat. 262, 42 U.S.C. § 2000e-7. Section 1104 of Title XI, applicable to all titles of the Civil Rights Act, establishes the following standard for preemption:"Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof."78 Stat. 268, 42 U.S.C. § 2000h-4. Accordingly, there is no need to infer congressional intent to preempt state laws from the substantive provisions of Title VII; these two sections provide a "reliable indicium of congressional intent with respect to state authority" to regulate employment practice. Malone v. White Motor Corp., supra, at 435 U. S. 505.Sections 708 and 1104 severely limit Title VII's preemptive effect. Instead of preempting state fair employment laws, § 708 "simply left them where they were before the enactment of title VII.'" Shaw v. Delta Air Lines, Inc., supra, at 463 U. S. 103, n. 24 (quoting Pervel Industries, Inc. v. Connecticut Comm'n on Human Rights and Opportunities, 468 F. Supp. 490, 493 (Conn. 1978), affirmance order, 603 F.2d 214 (CA2 1979), cert. denied, 444 U.S. 1031 (1980)). Similarly, § 1104 was intended primarily to "assert the intention of Congress to preserve existing civil rights laws." 110 Cong.Rec. 2788 (1964) (remarks of Rep. Meader). See also H.R.Rep. No. 914, 88th Cong., 1st Sess., 59 (1963) (additional views of Rep. Meader). [Footnote 12] The narrow scope of preemption Page 479 U. S. 283 available under §§ 708 and 1104 reflects the importance Congress attached to state antidiscrimination laws in achieving Title VII's goal of equal employment opportunity. See generally Shaw v. Delta Air Lines, Inc., 463 U.S. at 463 U. S. 101-102; Kremer v. Chemical Construction Corp., 456 U. S. 461, 456 U. S. 468-469, 472, 477 (1982); New York Gaslight Club, Inc. v. Carey, 447 U. S. 54, 447 U. S. 63-65 (1980). [Footnote 13] The legislative history of the PDA also supports a narrow interpretation of these provisions, [Footnote 14] as does our opinion in Shaw v. Delta Air Lines, Inc., supra. [Footnote 15]In order to decide whether the California statute requires or permits employers to violate Title VII, as amended by the PDA, or is inconsistent with the purposes of the statute, we Page 479 U. S. 284 must determine whether the PDA prohibits the States from requiring employers to provide reinstatement to pregnant workers, regardless of their policy for disabled workers generally.BPetitioners argue that the language of the federal statute itself unambiguously rejects California's "special treatment" approach to pregnancy discrimination, thus rendering any resort to the legislative history unnecessary. They contend that the second clause of the PDA forbids an employer to treat pregnant employees any differently than other disabled employees. Because "[t]he purpose of Congress is the ultimate touchstone'" of the preemption inquiry, Malone v. White Motor Corp., 435 U.S. at 435 U. S. 504 (quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 375 U. S. 103 (1963)), however, we must examine the PDA's language against the background of its legislative history and historical context. As to the language of the PDA,"[i]t is a 'familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.'"Steelworkers v. Weber, 443 U. S. 193, 443 U. S. 201 (1979) (quoting Church of the Holy Trinity v. United States, 143 U. S. 457, 143 U. S. 459 (1892)). See Train v. Colorado Public Interest Research Group, Inc., 426 U. S. 1, 426 U. S. 10 (1976); United States v. American Trucking Assns., Inc., 310 U. S. 534, 310 U. S. 543-544 (1940).It is well established that the PDA was passed in reaction to this Court's decision in General Electric Co. v. Gilbert, 429 U. S. 125 (1976)."When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision."Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. at 462 U. S. 678. By adding pregnancy to the definition of sex discrimination prohibited by Title VII, the first clause of the PDA reflects Congress' disapproval of the reasoning in Gilbert. Newport News, supra, at 462 U. S. 678-679, and Page 479 U. S. 285 n. 17 (citing legislative history). Rather than imposing a limitation on the remedial purpose of the PDA, we believe that the second clause was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied. Cf. 462 U.S. at 462 U. S. 678, n. 14 ("The meaning of the first clause is not limited by the specific language in the second clause, which explains the application of the general principle to women employees"); see also id. at 462 U. S. 688 (REHNQUIST, J., dissenting). [Footnote 16] Accordingly, subject to certain limitations, [Footnote 17] we agree with the Court of Appeals' conclusion that Congress Page 479 U. S. 286 intended the PDA to be "a floor beneath which pregnancy disability benefits may not drop -- not a ceiling above which they may not rise." 758 F.2d at 396.The context in which Congress considered the issue of pregnancy discrimination supports this view of the PDA. Congress had before it extensive evidence of discrimination against pregnancy, particularly in disability and health insurance programs like those challenged in Gilbert and Nashville Gas Co. v. Satty, 434 U. S. 136 (1977). [Footnote 18] The Reports, debates, and hearings make abundantly clear that Congress intended the PDA to provide relief for working women and to end discrimination against pregnant workers. [Footnote 19] In contrast to the thorough account of discrimination against pregnant workers, the legislative history is devoid of any discussion of preferential treatment of pregnancy, [Footnote 20] beyond acknowledgments of the existence of state statutes providing for such preferential treatment. See infra at 479 U. S. 287. Opposition to the PDA came from those concerned with the cost of including pregnancy in health and disability-benefit plans and the application of the bill to abortion, [Footnote 21] not from those who favored special accommodation of pregnancy.In support of their argument that the PDA prohibits employment practices that favor pregnant women, petitioners and several amici cite statements in the legislative history to the effect that the PDA does not require employers to extend any benefits to pregnant women that they do not already provide to other disabled employees. For example, the House Report explained that the proposed legislation"does not require Page 479 U. S. 287 employers to treat pregnant employees in any particular manner. . . . H.R. 6075 in no way requires the institution of any new programs where none currently exists. [Footnote 22]"We do not interpret these references to support petitioners' construction of the statute. On the contrary, if Congress had intended to prohibit preferential treatment, it would have been the height of understatement to say only that the legislation would not require such conduct. It is hardly conceivable that Congress would have extensively discussed only its intent not to require preferential treatment if, in fact, it had intended to prohibit such treatment.We also find it significant that Congress was aware of state laws similar to California's, but apparently did not consider them inconsistent with the PDA. In the debates and Reports on the bill, Congress repeatedly acknowledged the existence of state antidiscrimination laws that prohibit sex discrimination on the basis of pregnancy. [Footnote 23] Two of the States mentioned then required employers to provide reasonable leave to pregnant workers. [Footnote 24] After citing these state laws, Page 479 U. S. 288 Congress failed to evince the requisite "clear and manifest purpose" to supersede them. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190, 461 U. S. 206 (1983). To the contrary, both the House and Senate Reports suggest that these laws would continue to have effect under the PDA. [Footnote 25]Title VII, as amended by the PDA, and California's pregnancy disability leave statute share a common goal. The purpose of Title VII is"to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees."Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 429-430 (1971). See Hishon v. King & Spalding, 467 U. S. 69, 467 U. S. 75, n. 7 (1984); Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 763 (1976); Alexander v. Gardner-Denver Co., 415 U. S. 36, 415 U. S. 44 (1974); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 411 U. S. 800 (1973). Rather than limiting existing Title VII principles and objectives, the PDA extends Page 479 U. S. 289 them to cover pregnancy. [Footnote 26] As Senator Williams, a sponsor of the Act, stated:"The entire thrust . . . behind this legislation is to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life."123 Cong.Rec. 29658 (1977).Section 12945(b)(2) also promotes equal employment opportunity. By requiring employers to reinstate women after a reasonable pregnancy disability leave, § 12945(b)(2) ensures that they will not lose their jobs on account of pregnancy disability. [Footnote 27] California's approach is consistent with the dissenting opinion of JUSTICE BRENNAN in General Electric Co. v. Gilbert, which Congress adopted in enacting the PDA. Referring to Lau v. Nichols, 414 U. S. 563 (1974), a Title VI decision, JUSTICE BRENNAN stated:"[D]iscrimination is a social phenomenon encased in a social context and, therefore, unavoidably takes its meaning from the desired end products of the relevant legislative enactment, end products that may demand due consideration of the uniqueness of the 'disadvantaged' individuals. A realistic understanding of conditions found in today's labor environment warrants taking pregnancy into account in fashioning disability policies."429 U.S. at 429 U. S. 159 (footnote omitted). By "taking pregnancy into account," California's pregnancy disability leave statute allows women, as well as men, to have families without losing their jobs. Page 479 U. S. 290We emphasize the limited nature of the benefits § 12945 (b)(2) provides. The statute is narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth, or related medical conditions. Accordingly, unlike the protective labor legislation prevalent earlier in this century, [Footnote 28] § 12945(b)(2) does not reflect archaic or stereotypical notions about pregnancy and the abilities of pregnant workers. A statute based on such stereotypical assumptions would, of course, be inconsistent with Title VII's goal of equal employment opportunity. See, e.g., Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 435 U. S. 709 (1978); Phillips v. Martin Marietta Corp., 400 U. S. 542, 400 U. S. 545 (1971) (MARSHALL, J., concurring).CMoreover, even if we agreed with petitioners' construction of the PDA, we would nonetheless reject their argument that the California statute requires employers to violate Title VII. [Footnote 29] Section 12945(b)(2) does not prevent employers from Page 479 U. S. 291 complying with both the federal law (as petitioners construe it) and the state law. This is not a case where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. at 373 U. S. 142-143, or where there is an "inevitable collision between the two schemes of regulation." Id. at 373 U. S. 143. [Footnote 30] Section 12945(b)(2) does not compel California employers to treat pregnant workers better than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Employers are free to give comparable benefits to other disabled employees, thereby treating "women affected by pregnancy" no better than "other persons not so affected but similar in their ability or inability to work." Indeed, at oral argument, petitioners conceded that compliance with both statutes "is theoretically possible." Tr. of Oral Arg. 6.Petitioners argue that "extension" of the state statute to cover other employees would be inappropriate in the absence of a clear indication that this is what the California Legislature intended. They cite cases in which this Court has declined to rewrite under-inclusive state statutes found to violate the Equal Protection Clause. See, e.g., Wengler v. Druggists Mutual Insurance Co., 446 U. S. 142, 446 U. S. 152-153 (1980); Caban v. Mohammed, 441 U. S. 380, 441 U. S. 392-393, n. 13 (1979). This argument is beside the point. Extension is a remedial option to be exercised by a court once a statute is Page 479 U. S. 292 found to be invalid. [Footnote 31] See, e.g., Califano v. Westcott, 443 U. S. 76, 443 U. S. 89 (1979) (quoting Welsh v. United States, 398 U. S. 333, 398 U. S. 361 (1970) (Harlan, J., concurring in result)).IVThus, petitioners' facial challenge to § 12946(b)(2) fails. The statute is not preempted by Title VII, as amended by the PDA, because it is not inconsistent with the purposes of the federal statute, nor does it require the doing of an act which is unlawful under Title VII. [Footnote 32]The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtCalifornia Fed. S & L v. Guerra, 479 U.S. 272 (1987)California Federal Savings & Loan Assn. v. Guerra,Director, Department of Fair Employment and HousingNo. 85-494Argued October 8, 1986Decided January 13, 1987479 U.S. 272SyllabusThe California Fair Employment and Housing Act, in § 12945(b)(2), requires employers to provide leave and reinstatement to employees disabled by pregnancy. Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, as amended by the Pregnancy Discrimination Act (PDA), specifies that sex discrimination includes discrimination on the basis of pregnancy. A woman employed as a receptionist by petitioner California Federal Savings & Loan Association (Cal Fed) took a pregnancy disability leave in 1982, but, when she notified Cal Fed that she was able to return to work, she was informed that her job had been filled and that there were no similar positions available. She then filed a complaint with respondent Department of Fair Employment and Housing, which charged Cal Fed with violating § 12945(b)(2). Before a hearing was held on the complaint, Cal Fed, joined by the other petitioners, brought an action in Federal District Court, seeking a declaration that § 12945(b)(2) is inconsistent with and preempted by Title VII, and an injunction against its enforcement. The District Court granted summary judgment for petitioners, but the Court of Appeals reversed.Held: The judgment is affirmed.758 F.2d 390, affirmed.JUSTICE MARSHALL delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, concluding that § 12945(b)(2) is not preempted by Title VII, as amended by the PDA, because it is not inconsistent with the purposes of Title VII, nor does it require the doing of an act that is unlawful under Title VII. Pp. 479 U. S. 284-292.(a) Title VII's purpose is"to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees."Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 429-430. Rather than limiting Title VII principles and objectives, the PDA extends them to cover pregnancy. Section 12945(b)(2) also promotes equal employment opportunity. By requiring employers to reinstate women after a reasonable Page 479 U. S. 273 pregnancy disability leave, it ensures that they will not lose their jobs on account of pregnancy. Pp. 479 U. S. 284-290.(b) Section 12945(b)(2) does not prevent employers from complying with both the federal law (as construed by petitioners to reject California's "special treatment" approach to pregnancy discrimination and to forbid .an employer to treat pregnant employees any differently than other disabled employees) and the state law. This is not a case where compliance with both the federal and state laws is a physical impossibility. Section 12945(b)(2) does not compel employers to treat pregnant employees better than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Pp. 479 U. S. 290-292.JUSTICE MARSHALL, joined by JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE O'CONNOR, concluded in Part III-A that both §§ 708 and 1104 of the Civil Rights Act of 1964 severely limit Title VII's preemptive effect by leaving state fair employment laws where they were before Title VII was enacted. Pp. 479 U. S. 280-284.JUSTICE STEVENS concluded that, for purposes of holding that § 12945(b)(2) is not preempted by Title VII, it is not necessary to reach the question whether § 1104 applies to Title VII or whether § 708 is the only provision governing Title VII's preemptive scope. Pp. 479 U. S. 292-293, n. 1.JUSTICE SCALIA concluded that the only provision whose effect on preemption need be considered is § 708 of Title VII, which prohibits preemption unless a state law requires or permits the doing of an act outlawed by the PDA. Because § 12945(b)(2) does not require or permit the doing of an act outlawed under any interpretation of the PDA, it is not preempted. Accordingly it is unnecessary to decide how the PDA should be interpreted. Pp. 479 U. S. 295-296.MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, in which BRENNAN, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Part III-A, in which BRENNAN, BLACKMUN, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 479 U. S. 292. SCALIA, J., filed an opinion concurring in the judgment, post, p. 479 U. S. 295. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and POWELL, J., joined, post, p. 479 U. S. 297. Page 479 U. S. 274

1988_88-357

PER CURIAM.In 1958, respondent was convicted of robbery in Washington state court and sentenced to 20 years of imprisonment; this sentence expired by its terms in 1978. In 1976, while on parole from that sentence, he was convicted of two counts of assault and one count of aiding a prisoner to escape; in 1978, the State sentenced him to two life terms and one 10-year term on those convictions. These sentences were maximum terms under Washington's then-indeterminate sentencing scheme, with the minimum term to be set by the Board of Prison Terms and Paroles. Under Washington law, the 1958 conviction will increase by several years the mandatory minimum term which respondent will have to serve on his 1978 sentences.In 1976, respondent was also convicted of bank robbery and conspiracy in federal court, and sentenced to 30 years of imprisonment. He is currently serving his federal sentence in a federal penitentiary in California, but the State of Washington has lodged a detainer against him with federal prison authorities. Respondent is scheduled to begin serving the sentences imposed upon him by the Washington courts in 1978 at the expiration of his federal term.In 1985, while in federal prison, respondent filed a pro se petition for habeas corpus relief in the United States District Court for the Western District of Washington. Respondent's Page 490 U. S. 490 petition listed the 1958 Washington conviction as the "conviction under attack," alleging that it was invalid because respondent had not been given a competency hearing, even though there was reasonable doubt as to his competency to stand trial. Respondent also alleged that the 1958 conviction had been used illegally to enhance his 1978 state sentences, which he had not yet begun to serve. * The District Court dismissed the petition for lack of subject matter jurisdiction, holding that respondent was not "in custody" for the purposes of a habeas attack on the 1958 conviction because the sentence imposed for that conviction had already expired. The Court of Appeals for the Ninth Circuit reversed. 847 F.2d 616 (1988). The Court of Appeals held that respondent was still "in custody" under the 1958 conviction, even though the sentence imposed for that conviction had expired, because it had been used to enhance the sentences imposed in 1978 for his 1976 state convictions, which he had yet to serve. Id. at 618-619. We granted certiorari to review this interpretation of the "in custody" requirement. 488 U.S. 941 (1988). We conclude that respondent is not presently "in custody" under the 1958 sentence, but that he is "in custody" under the 1978 state sentences which he has not yet begun to serve.The federal habeas statute gives the United States District Courts jurisdiction to entertain petitions for habeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (emphasis added); see also 28 U.S.C. § 2254(a). We have interpreted the statutory language as requiring that the habeas petitioner be "in custody" under the conviction or sentence under attack at the time his petition Page 490 U. S. 491 is filed. See Carafas v. LaVallee, 391 U. S. 234, 391 U. S. 238 (1968). In this case, the Court of Appeals held that a habeas petitioner may be "in custody" under a conviction whose sentence has fully expired at the time his petition is filed, simply because that conviction has been used to enhance the length of a current or future sentence imposed for a subsequent conviction. We think that this interpretation stretches the language "in custody" too far.Our interpretation of the "in custody" language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus. In Jones v. Cunningham, 371 U. S. 236 (1963), for example, we held that a prisoner who had been placed on parole was still "in custody" under his unexpired sentence. We reasoned that the petitioner's release from physical confinement under the sentence in question was not unconditional; instead, it was explicitly conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities. Id. at 242; see also Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara County, 411 U. S. 345 (1973); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973).We have never held, however, that a habeas petitioner may be "in custody" under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Indeed, our decision in Carafas v. LaVallee, supra, strongly implies the contrary. In Carafas, the petitioner filed his habeas application while he was actually incarcerated under the sentence he sought to attack, but his sentence expired, and he was unconditionally discharged from custody while his appeal from the denial of habeas relief below was pending before this Court. The State argued that the unconditional discharge rendered the case moot. We rejected this argument, holding that the "collateral consequences" of the petitioner's conviction -- his inability to vote, engage in certain businesses, hold public office, or serve as a Page 490 U. S. 492 juror -- prevented the case from being moot. Id. at 391 U. S. 237-238. We went on to say, however, that the unconditional release raised a "substantial issue" as to the statutory "in custody" requirement. Id. at 391 U. S. 238. While we ultimately found that requirement satisfied as well, we rested that holding not on the collateral consequences of the conviction, but on the fact that the petitioner had been in physical custody under the challenged conviction at the time the petition was filed. Ibid. The negative implication of this holding is, of course, that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual "in custody" for the purposes of a habeas attack upon it.The question presented by this case is whether a habeas petitioner remains "in custody" under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the "in custody" requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction. Since almost all States have habitual offender statutes, and many States provide as Washington does for specific enhancement of subsequent sentences on the basis of prior convictions, a contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the "in custody" requirement out of the statute, and be contrary to the clear implication of the opinion in Carafas v. LaVallee, supra.In this case, of course, the possibility of a sentence upon a subsequent conviction being enhanced because of the prior conviction actually materialized, but we do not think that requires any different conclusion. When the second sentence Page 490 U. S. 493 is imposed, it is pursuant to the second conviction that the petitioner is incarcerated, and is therefore "in custody."We do think, however, that respondent may challenge the sentences imposed upon him by the State of Washington in 1978, even though he is not presently serving them. In McNally v. Hill, 293 U. S. 131 (1934), we held that the "in custody" requirement meant present physical confinement under the conviction or sentence under attack. Were this rule still the law, respondent would not be "in custody" even under the 1978 sentences, because he has not yet begun to serve them. But in Peyton v. Rowe, 391 U. S. 54 (1968), we overruled McNally and held that a petitioner who was serving two consecutive sentences imposed by the Commonwealth of Virginia could challenge the second sentence which he had not yet begun to serve.While, in this case, respondent is serving a federal sentence, rather than another sentence imposed by the State of Washington, we do not think this factual difference from Peyton v. Rowe requires a different result. The State of Washington has placed a detainer with the federal authorities to ensure that, at the conclusion of respondent's federal sentence, he will be returned to the state authorities to begin serving his 1978 state sentences. In Braden v. 30th Judicial Circuit Court of Ky., supra, we held that a prisoner serving a sentence in Alabama, who was subject to a detainer filed with his Alabama jailers by Kentucky officials, was "in custody" for the purpose of a habeas attack on the outstanding Kentucky charge upon which the detainer rested. We think that Braden and Peyton together require the conclusion that respondent in this case was "in custody" under his 1978 state sentences at the time he filed. Since we think respondent's habeas petition, construed with the deference to which pro se litigants are entitled, Haines v. Kerner, 404 U. S. 519 (1972), can be read as asserting a challenge to the 1978 sentences, as enhanced by the allegedly invalid prior conviction, see United States v. Tucker, 404 U. S. 443 (1972), we affirm the Court of Page 490 U. S. 494 Appeals' finding that respondent has satisfied the "in custody" requirement for federal habeas jurisdiction.Our holding is limited to the narrow issue of "custody" for subject matter jurisdiction of the habeas court. We express no view on the extent to which the 1958 conviction itself may be subject to challenge in the attack upon the 1978 sentences which it was used to enhance. See 28 U.S.C. § 2254 Rule 9(a).The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtMaleng v. Cook, 490 U.S. 488 (1989)Maleng v. CookNo. 88-357Argued March 27, 1989Decided May 15, 1989490 U.S. 488SyllabusAs the result of a 1958 conviction in a Washington state court, respondent Cook served a sentence that expired by its terms in 1978. Subsequently, he was convicted of other state crimes, and, in 1978, he was sentenced to two life terms and one 10-year term. Under state law, the 1958 conviction will increase by several years the mandatory minimum term that he will have to serve on his 1978 sentences. He is currently serving a term in federal prison for certain federal crimes, and will begin serving his 1978 state sentences when his federal prison term expires. While in federal prison, Cook filed a pro se petition for habeas corpus relief in the Federal District Court, alleging that his 1958 conviction was invalid, and thus had been used illegally to enhance the 1978 sentences which he had not yet begun to serve. The court dismissed the petition, holding that, because the 1958 sentence had expired, Cook was not "in custody" -- as required by 28 U.S.C. § 2241(c)(3) -- for the purposes of a habeas attack on the 1958 conviction. The Court of Appeals reversed, holding that he was "in custody" on the 1958 conviction because it had been used to enhance his 1978 sentences.Held: Cook is not presently "in custody" under the 1958 sentence, but he is "in custody" under the 1978 sentences. Although a prisoner need not be physically confined in order to challenge his sentence on habeas corpus, once a sentence has completely expired, the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent convictions is not itself sufficient to render an individual "in custody." See Carafas v. LaVallee, 391 U. S. 234. However, Cook can challenge the 1978 sentences. While he is not physically confined under those sentences, the fact that the State has placed a detainer with the federal authorities to ensure that he will be returned to the State authorities at the conclusion of his federal sentence is sufficient to put him "in custody" for habeas purposes. See Peyton v. Rowe, 391 U. S. 54; Braden v. 30th Judicial Circuit Court of Kentucky, 410 U. S. 484. And Cook's habeas petition, construed with the deference to which pro se litigants are entitled, can be read as asserting a challenge to the 1978 sentences as enhanced by the allegedly invalid prior conviction.847 F.2d 616, affirmed. Page 490 U. S. 489

1955_460

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This case involves the construction and constitutional validity of the Act of September 7, 1949, 63 Stat. 686, now codified in 18 U.S.C. §§ 4244-4248,"To provide for the care and custody of insane persons charged with or convicted of offenses against the United States, and for other purposes."Section 4244 provides a procedure for determining mental incompetency during the period "after arrest and prior to the imposition of sentence or prior to the expiration of any period of probation." [Footnote 1] Section 4245 sets up a similar procedure for persons in prison believed to have been mentally incompetent at the time of their trial when the issue was not raised or determined before or during trial. Section 4246 states that, whenever the trial court shall determine, under §§ 4244 and 4245, that an accused Page 350 U. S. 368 is or was mentally incompetent, the court may commit the accused to the custody of the Attorney General until the accused is mentally competent to stand trial or until the pending charges against him are disposed of according to law. Section 4246 further provides that, if the court, after hearing as provided in the preceding §§ 4244 and 4245, finds that the conditions specified in § 4247 exist, the commitment shall be governed by § 4248. [Footnote 2] Section 4247 states that, when a prisoner's sentence is about to expire and the prison board of examiners finds him insane and a probable danger to the officers, property, or other interests of the United States, then the court shall hold a hearing, and, if it determines that those conditions exist, it may commit the prisoner to the custody of the Attorney General. [Footnote 3] Under § 4248, the Page 350 U. S. 369 commitment shall run until sanity is restored, or until the prisoner's condition is so improved that he will not endanger the officers, property, or other interests of the United States, or until suitable arrangements are made for the care of the prisoner by his State of residence -- reserving to the prisoner his right to establish his eligibility to release by writ of habeas corpus. [Footnote 4]Petitioner, a resident of Cleveland, Ohio, was indicted on November 20, 1952, by a grand jury of the Western District of Missouri on two counts, for robbery from a United States Post Office in Kansas City, Missouri, and for felonious assault there on a postal employee. Under Rule 20 of the Federal Rules of Criminal Procedure, petitioner signed a waiver of trial in the Western District of Missouri and was transferred to the Eastern Division of the Northern District of Ohio. Acting on the suggestion of appointed counsel, the district judge ordered petitioner examined by a psychiatrist. After a hearing in which the examining psychiatrist testified that it was doubtful that petitioner, because of his mental condition, could have fully understood the significance of the waiver he signed, the District Court, on February 2, 1953, remanded Page 350 U. S. 370 the case to the District Court for the Western District of Missouri for disposition.That court ordered the accused delivered to the United States Medical Center for Federal Prisoners at Springfield, Missouri, for the purpose of ascertaining his mental condition. On April 15, 1953, the Chief of the Psychiatric Service at the Medical Center filed his report concluding that the accused was legally insane in that he was unable to choose between right and wrong and could not, by reason of his mental condition, adequately cooperate with counsel in his own defense.Petitioner was then transferred to jail, but, on November 16, 1953, the District Court entered an order returning him to the Medical Center for determination whether he was acutely or chronically insane. The report of the Neuropsychiatric Staff of the Medical Center, filed February 1, 1954, indicated that petitioner was "psychotic and incompetent," that "it is unlikely that this subject will regain his sanity in the near future," and recommended that "consideration be given to transferring this subject to a state hospital in his state of residence." The District Court, on the following day, ordered a further hearing under § 4246 to "resolve the power to commit defendant as mentally defective under the conditions specified in Section 4247. . . ," and, for that purpose, requested the Director and Board of Examiners of the Medical Center to certify whether, in their judgment, the defendant, if released, would"probably endanger the safety of the officers, the property, or other interests of the United States, and that suitable arrangements for the custody and care of the [defendant] are not otherwise available."The report of the Board, dated February 4, 1954, concluded that the accused remained "psychotic and incompetent," and stated that,"at the present time, there appears to be little likelihood of his recovering to the extent that he might be considered competent in the Page 350 U. S. 371 near future."In reply to the request of the District Court,"[t]he Board agreed that this subject might be considered potentially dangerous to the extent that if released he might conceivably persist in criminal activities of the type with which he is presently charged. In considering this man's mental illness, the Board finds that he does not hold any fixed delusions concerning wanting to harm any person or group of persons, either officials of the government or otherwise, so that, in this respect, he probably would not constitute a danger to the safety of officers, property, or other interests of the United States. . . . The Board further recommends that this subject be considered a suitable candidate for state hospital care if suitable arrangements can be made."In May, 1954, petitioner was transferred to the custody of the State of Ohio, where he was again examined by the psychiatrist who had made the examination when petitioner was transferred to the District Court for the Northern District of Ohio in 1952. This time, the psychiatrist found that petitioner "is now in a state of remission equivalent to a recovery. He is not now insane in the legal sense." Petitioner was then released by the Ohio authorities.Petitioner was rearrested in Ohio under the original indictment, which was still pending, and, on June 16, 1954, removed to the Western District of Missouri. On June 18, counsel appointed for petitioner moved the court to appoint at least one qualified psychiatrist to inquire into petitioner's mental competency and to hold a hearing for that purpose. Two psychiatrists were appointed, and were directed to report to the court. Petitioner was also recommitted to the United States Medical Center for Federal Prisoners at Springfield, Missouri, for further examination.The hearing on petitioner's sanity was held on July 15. The two psychiatrists appointed by the court testified Page 350 U. S. 372 that, in their belief, petitioner was sane. The first three reports of the Medical Center were received in evidence, along with a fourth, a report of the Neuropsychiatric Staff of the Medical Center at Springfield, dated July 8, 1954. This latest report concluded"that the subject remains legally insane by reason of a major mental disorder which would prevent him from having a proper understanding of the proceeding pending against him and which also impairs his ability to properly assist in his own defense."The staff further concluded"that this subject's prognosis for recovery appears to be poor, and that he will probably require indefinite hospitalization to insure his own safety and that of society. The staff does not consider the subject to be potentially dangerous except to the extent that, if released, he might persist in engaging in criminal activities similar to those with which he is presently charged."The Chief of the Psychiatric Service at the Medical Center testified at this hearing to the same effect.The District Court, in its order of July 30, found that the accused was insane and so mentally incompetent that he could not stand trial; that, if released, he would probably endanger the safety of the officers, property, or other interests of the United States; and that no suitable arrangements for custody and care, other than commitment to the custody of the Attorney General, were available. Petitioner was therefore committed to the custody of the Attorney General until his sanity should be restored or his mental condition so improved that, if released, he would not endanger the safety of the officers, property, or other interests of the United States or until suitable arrangements could be made for the custody and care of defendant by Ohio, the State of his residence. 125 F. Supp. 777, 778. Petitioner appealed from this judgment, and the Court of Appeals for the Eighth Circuit, its seven circuit judges sitting en banc, affirmed, one judge dissenting. Page 350 U. S. 373 219 F.2d 376. Because of the important issue of federal power raised by the case, and because of conflicting views in the Courts of Appeals, compare Higgins v. United States, 205 F.2d 650, and Wells v. Attorney General, 201 F.2d 556, with the decision of the Court of Appeals for the Eighth Circuit in this case, we granted certiorari. 350 U.S. 821.A detailed history of the legislation is set forth in the opinion of the Court of Appeals. 219 F.2d at 380-384. It is sufficient to note here that the bill was proposed by the Judicial Conference of the United States after long study by a conspicuously able committee, followed by consultation with federal district and circuit judges.The statute deals comprehensively with those persons charged with federal crime who are insane or mentally incompetent to stand trial. It provides a procedure for determination of such insanity or mental incompetence, and further provides for commitment of those found to be insane or mentally incompetent. Petitioner's assertion that the statute deals only with the problem of temporary mental disorder is not supported by the language of the statute, and the report of the Committee of the Judicial Conference clearly indicates that the statute was designed to deal with mental disability which seems more than temporary:"If the accused's mental disability appears not to be a transitory condition, but in all likelihood he will, because of his insanity, never be brought to trial, it would seem that as a general rule the federal government should not assume responsibility for his hospitalization merely because he has been accused (but not convicted) of a federal crime. Normally such a person should be turned over to the state of his domicile to be confined in a state mental hospital if hospitalization is called for. "Page 350 U. S. 374"But there may be cases where the accused's domicile cannot be satisfactorily established, and where no state will assume responsibility for his care. The federal government may then be faced with the practical situation that it has lawful custody of a person whom it is not safe to let at large. In a recent case in the District of Massachusetts, United States v. Torrez [unreported], a Filipino was brought into the district and indicted for murder on the high seas. After notice of hearing at which alienists for the government and for the defendant testified, the judge found that the defendant was at present insane, and unable rationally to aid in the conduct of his defense. Obviously, in such case, there should be authority in the court to cause the confinement of the accused in a mental hospital."The District Court pursued the appropriate procedure in holding a hearing to determine the existence of the conditions specified in § 4247 once it determined that the accused's mental incompetence seemed more than temporary. Although the language of the statute and the report of the Committee of the Judicial Conference demonstrate that the statute deals generally with the situations both of temporary and more than temporary insanity, one could infer from the reports on the bill by the Committee, by the Judicial Conference itself, and by the committees of both Houses of Congress that the specific commitment under § 4248 was designed only for prisoners whose sentences are about to expire. But this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute. The second sentence of § 4246 clearly makes commitment under § 4248 applicable to persons found mentally incompetent under § 4244 who meet the conditions specified in § 4247. Page 350 U. S. 375We reach then the narrow constitutional issue raised by the order of commitment in the circumstances of this case. The petitioner came legally into the custody of the United States. The power that put him into such custody -- the power to prosecute for federal offenses -- is not exhausted. Its assertion in the form of the pending indictment persists. The District Court has found that the accused is mentally incompetent to stand trial at the present time, and that, if released, he would probably endanger the officers, property, or other interests of the United States -- and these findings are adequately supported. In these circumstances, the District Court has entered an order retaining and restraining petitioner, while in his present condition, with habeas corpus always available when circumstances warrant. This commitment, and therefore the legislation authorizing commitment in the context of this case, involve an assertion of authority, duly guarded, auxiliary to incontestable national power. As such, it is plainly within congressional power under the Necessary and Proper Clause. Art. I, § 8, cl. 18.The fact that, at present, there may be little likelihood of recovery does not defeat federal power to make this initial commitment of the petitioner. We cannot say that federal authority to prosecute has now been irretrievably frustrated. The record shows that two court-appointed psychiatrists found petitioner sane and competent for trial. While the District Court did not accept their conclusion, their testimony illustrates the uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment, even about a situation as unpromising as petitioner's, at least as indicated by the report of the United States Medical Center at Springfield. Page 350 U. S. 376 Certainly, denial of constitutional power of commitment to Congress in dealing with a situation like this ought not to rest on dogmatic adherence to one view or another on controversial psychiatric issues.We decide no more than the situation before us presents, and equally do not imply an opinion on situations not now before us. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtGreenwood v. United States, 350 U.S. 366 (1956)Greenwood v. United StatesNo. 460Argued January 25, 1956Decided March 5, 1956350 U.S. 366SyllabusActing under 18 U.S. C. §§ 4244-4248, a Federal District Court held a hearing on the sanity of petitioner, who had been indicted for robbery of a post office and felonious assault on a postal employee and had been found by authorities of a medical center for federal prisoners to be insane and unlikely to recover in the near future. After considering conflicting testimony and reports of psychiatrists, the Court found that petitioner was insane and so mentally incompetent that he could not stand trial; that, if released, he probably would endanger the safety of the officers, property, or other interests of the United States; and that no suitable arrangements for his custody and care, other than commitment to the custody of the Attorney General, were available. The Court therefore committed petitioner to the custody of the Attorney General until his sanity should be restored or his mental condition so improved that, if released, he would not endanger the safety of the officers, property, or other interests of the United States, or until suitable arrangements could be made for his custody and care by the State of his residence.Held: the District Court's action is sustained. Pp. 350 U. S. 367-376.(a) The statute deals not only with problems of temporary mental disorder, but also with mental disability which seems more than temporary. Pp. 350 U. S. 373-374.(b) As here construed, the statute is within the power of Congress under the Necessary and Proper Clause, Art. I, § 8, cl. 18. Pp. 350 U. S. 375-376.219 F.2d 376 affirmed. Page 350 U. S. 367

1958_233

MR. JUSTICE DOUGLAS delivered the opinion of the Court.When the Court in 1793 held that a State could be sued in the federal courts by a citizen of another State [Footnote 1] (Chisholm v. Georgia, 2 Dall. 419), the Eleventh Amendment [Footnote 2] was passed precluding it. But this is an immunity which a State may waive at its pleasure (Missouri v. Fiske, 290 U. S. 18, 290 U. S. 24) as by a general appearance in litigation in a federal court (Clark v. Barnard, 108 U. S. 436, 108 U. S. 447-448) or by statute. Ford Motor Co. v. Department of Treasury, 323 U. S. 459, 323 U. S. 468-470. The conclusion that there has been a waiver of immunity will not be lightly inferred. Murray v. Wilson Distilling Co., 213 U. S. 151, 213 U. S. 171. Nor will a waiver of immunity from suit in state courts do service for a waiver of immunity where the litigation is brought in the federal court. Chandler v. Dix, 194 U.S. Page 359 U. S. 277 590, 194 U. S. 591-592. And where a public instrumentality is created with the right "to sue and be sued," that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal, courts. Cf. Delaware River Joint Toll Bridge Comm'n v. Colburn, 310 U. S. 419. Suits against agencies of a State based on maritime torts are no exception to these rules. Ex parte New York, 256 U. S. 490.The question here is whether Tennessee and Missouri have waived their immunity under the facts of this case.Congress, under conditions specified in 33 U.S.C. § 525, et seq., gave its consent to the construction of bridges over the navigable waters in the United States. Respondent is a "body corporate and politic" created by Missouri (13 Vernon's Ann.Stat., Tit. 14, § 234.360) and Tennessee (P.L.1949, cc. 167, 168) acting pursuant to the Compact Clause of the Constitution. Art. I § 10, cl. 3. [Footnote 3] The compact prepared by the two States and submitted to the Congress provided in Art. I, §§ 1 and 2 that respondent should have the power to build a bridge and operate ferries across the Mississippi at specified points, and, in Art. I, § 3, that it should have the power "to contract, to sue and be sued in its own name." Congress granted its consent to the compact, 63 Stat. 930, stating in a proviso:"That nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of the United States or of any court, department, board, bureau, officer, or official of the United States, over or in regard to any navigable waters, or any commerce between the States or with foreign countries, or any bridge, railroad, highway, pier, wharf, or other facility or improvement, or any Page 359 U. S. 278 other person, matter, or thing, forming the subject matter of the aforesaid compact or agreement or otherwise affected by the terms thereof."(Italics added.)The facts are that petitioner's husband was employed on a ferryboat operated by respondent as a common carrier across the Mississippi between a point in Missouri and one in Tennessee. He met his death when he was trapped in the pilothouse of the ferryboat as it sank, following a collision with another boat. Suit was brought under the Jones Act, 46 U.S.C. § 688, charging respondent with negligence.The District Court granted the motion to dismiss, holding that respondent is an agency of the States of Tennessee and Missouri, and immune from suit in tort. 153 F. Supp. 512. The Court of Appeals, agreeing with that view, affirmed. 254 F.2d 857. The case is here on certiorari. 358 U.S. 811.The construction of a compact sanctioned by Congress under Art. I, § 10, cl. 3, of the Constitution presents a federal question. Delaware River Joint Toll Bridge Comm'n v. Colburn, supra, at 310 U. S. 427. Moreover, the meaning of a compact is a question on which this Court has the final say. [Footnote 4] Dyer v. Sims, 341 U. S. 22, 341 U. S. 28. The rule is no different when the contention is that a State has, by compact, waived its immunity from suit. Of course, when the alleged basis of waiver of the Eleventh Amendment's immunity is a state statute, the question to be answered is whether the State has intended to waive its immunity. Chandler v. Dix, supra. But where the waiver is, as here, claimed to Page 359 U. S. 279 arise from a compact between several States, the Court is called on to interpret not unilateral state action, but the terms of a consensual agreement, the meaning of which, because made by different States acting under the Constitution and with congressional approval, is a question of federal law. Delaware River Joint Toll Bridge Comm'n v. Colburn, supra. In making that interpretation, we must treat the compact as a living interstate agreement which performs high functions in our federalism, [Footnote 5] including the operation of vast interstate enterprises. [Footnote 6]The Court of Appeals laid emphasis on the law of Missouri, which, it said, construes a "sue and be sued" provision as not authorizing a suit for negligence against a public corporation. It likewise cited Tennessee decisions strictly construing statutes permitting suits against the State. We assume arguendo that this suit must be considered as one against the States, since this bi-state corporation is a joint or common agency of Tennessee and Missouri. But we disagree with the construction given Page 359 U. S. 280 by the Court of Appeals to the "sue and be sued" clause. For the resolution of that question, we turn to federal, not state, law. Congress might, of course, adopt as federal law the law of either or both of the States. Delaware River Joint Toll Bridge Comm'n, supra. Cf. Commissioner v. Stern, 357 U. S. 39; Helvering v. Stuart, 317 U. S. 154; Myers v. Matley, 318 U. S. 622. But Congress took no such step here. It approved a "sue and be sued" clause in a compact under conditions clause in a compact under conditions that make it clear that the States accepting it waived any immunity from suit which they otherwise might have.This compact, approved by Congress in 1949, was made in an era when the immunity of corporations performing governmental functions was not in favor in the federal field. In Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381, decided nearly 10 years before the present compact was made, the authority to sue and be sued contained in a federal charter granted a government corporation was held to be broad enough to include suits in torts at least where the duties relied upon "have their source in contract even though the guilty agents may be merely tortfeasors." Id. at 306 U. S. 395. There, the underlying contract was a bailment; here it is employment. To draw a distinction in either the Keifer case or in this case between tort and contract would be to"make application of a steadily growing policy of governmental liability contingent upon irrelevant procedural factors. These, in our law, are still deeply rooted in historical accidents to which the expanding conceptions of public morality regarding governmental responsibility should not be subordinated."Id. at 306 U. S. 396.This case, like the Keifer case, involves the launching of a governmental corporation into an industrial or business field. In view of the federal climate of opinion which by that time had grown up around the "sue and be sued" clause, we cannot believe that Congress intended to Page 359 U. S. 281 confine it more narrowly here than in the Keifer case. But we need not rest on that alone. Congress, when it approved this compact, attached a condition that"nothing herein contained shall be construed to affect, impair, or diminish any right, power, or jurisdiction of . . . any court . . . of the United States over or in regard to any navigable waters or any commerce between the States. . . ."We need not stop to catalogue all the ends that may be served by this proviso. See S.Rep. No. 1198, 81st Cong., 1st Sess.; H.R.Rep.No.1429, 81st Cong., 1st Sess. It is argued that the proviso was included to make plain that the bonds issued by the agency were taxable by the United States. We must go further however, to find a rational purpose, since another proviso of the Act of Congress specifically stated:"That any obligations issued and outstanding, including the income derived therefrom, under the terms of the compact or agreement, and any amendments thereto, shall be subject to the tax laws of the United States."Whatever may be the several effects of the other proviso with which we are presently concerned, one result seems to us clear. This proviso, read in light of the "sue and be sued" clause in the compact, reserves the jurisdiction of the federal courts to act in any matter arising under the compact over which they would have jurisdiction by virtue of the fact that the Mississippi is a navigable stream and that interstate commerce is involved. There is no more apt illustration of the involvement of the commerce power and the power over maritime matters than the Jones Act. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36, 318 U. S. 39-43. This is not enlarging the jurisdiction of the federal courts, but only recognizing as one of its appropriate applications the business activities of an agency active in commerce and maritime matters.The States who are parties to the compact by accepting it and acting under it assume the conditions that Congress, Page 359 U. S. 282 under the Constitution, attached. [Footnote 7] So if there be doubt as to the meaning of the "sue and be sued" clause in the setting of the compact prior to approval by Congress, the doubt dissipates when the condition attached by Congress is accepted and acted upon by the two States.Finally, we can find no more reason for excepting state or bi-state corporations from "employer" as used in the Jones Act than we could for excepting them either from the Safety Appliance Act (United States v. California, 297 U. S. 175) or the Railway Labor Act (California v. Taylor, 353 U. S. 553). In the latter case, we reviewed at length federal legislation governing employer-employee employee relationships, and said, "When Congress wished to exclude state employees, it expressly so provided." 353 U.S. at 353 U. S. 564. The Jones Act (46 U.S.C. § 688) has no exceptions from the broad sweep of the words "Any seaman who shall suffer personal injury in the course of his employment may" etc. The rationale of United States v. California, Page 359 U. S. 283 supra, and California v. Taylor, supra, makes it impossible for us to mark a distinction here and hold that this bi-state agency is not an employer under the Jones ActReversed

U.S. Supreme CourtPetty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959)Petty v. Tennessee-Missouri Bridge CommissionNo. 233Argued March 4, 1959Decided April 20, 1959359 U.S. 275SyllabusPetitioner sued in a Federal District Court to recover under the Jones Act for the death of her husband while working aboard a Mississippi River ferryboat owned by respondent, an agency of the States of Tennessee and Missouri created by a compact entered into between them with the consent of Congress. The compact authorizes respondent "to sue and be sued," and the Act of Congress approving it provides that it shall not be construed"to affect, impair, or diminish any right, power or jurisdiction of . . . any court . . . of the United States, over or in regard to any navigable waters, or any commerce between the States."Held:1. By entering into the compact and acting under it after Congressional approval, the States waived whatever immunity from a suit such as this in a federal court respondent, as their agency, might have enjoyed under the Eleventh Amendment. Pp. 359 U. S. 276-282.(a) The construction of a compact sanctioned by Congress under Art. I, § 10, cl. 3, of the Constitution presents a federal question over which this Court has the final say. Pp. 359 U. S. 278-279.(b) Congress approved the "sue and be sued" clause in the compact here involved under conditions that make it clear that the States accepting it waived any immunity from suit which they otherwise might have had. Pp. 359 U. S. 279-280.(c) The above-quoted proviso in the Act of Congress approving the compact, read in the light of the "sue and be sued" clause in the compact, reserves the jurisdiction of the federal courts to act in any matter arising under the compact over which they would have jurisdiction by virtue of the fact that the Mississippi is a navigable stream and that interstate commerce is involved. Pp. 359 U. S. 280-282.2. Respondent, as a bi-state corporation, is not excepted from the term "employer" as used in the Jones Act. Pp. 359 U. S. 282-283.254 F.2d 857 reversed. Page 359 U. S. 276

2000_99-1408

Syllabushistory has likewise failed to reveal any such design. Nor is there in any of the modern historical accounts of the Fourth Amendment's adoption any substantial indication that the Framers intended such a restriction. Indeed, to the extent the modern histories address the issue, their conclusions are to the contrary. The evidence of actual practice also counsels against Atwater's position. During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, regularly authorized local officers to make warrantless misdemeanor arrests without a breach of the peace condition. That the Fourth Amendment did not originally apply to the States does not make state practice irrelevant in unearthing the Amendment's original meaning. A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment, and the fact that many of the original States with such constitutional limitations continued to grant their officers broad warrantless misdemeanor arrest authority undermines Atwater's position. Given the early state practice, it is likewise troublesome for Atwater's view that one year after the Fourth Amendment's ratification, Congress gave federal marshals the same powers to execute federal law as sheriffs had to execute state law. Pp. 336-340.(ii) Nor is Atwater's argument from tradition aided by the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become "woven ... into the fabric" of American law. E. g., Wilson, supra, at 933. The story, in fact, is to the contrary. First, what little this Court has said about warrantless misdemeanor arrest authority tends to cut against Atwater's argument. See, e. g., United States v. Watson, 423 U. S. 411, 418. Second, this is not a case in which early American courts embraced an accepted common-law rule with anything approaching unanimity. See Wilson, supra, at 933. None of the 19th-century state-court decisions cited by Atwater is ultimately availing. More to the point are the numerous 19th-century state decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace. Finally, legal commentary, for more than a century, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. Small wonder, then, that today statutes in all 50 States and the District of Columbia permit such arrests by at least some (if not all) peace officers, as do a host of congressional enactments. Pp. 340-345.(b) The Court rejects Atwater's request to mint a new rule of constitutionallaw forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and the government321can show no compelling need for immediate detention. She reasons that, when historical practice fails to speak conclusively to a Fourth Amendment claim, courts must strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. See, e. g., Wyoming v. Houghton, 526 U. S. 295, 299-300. Atwater might well prevail under a rule derived exclusively to address the uncontested facts of her case, since her claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her. However, the Court has traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. See, e. g., United States v. Robinson, 414 U. S. 218, 234-235. Complications arise the moment consideration is given the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted. The assertion that these difficulties could be alleviated simply by requiring police in doubt not to arrest is unavailing because, first, such a tie breaker would in practice amount to a constitutionally inappropriate least-restrictive-alternative limitation, see, e. g., Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 629, n. 9, and, second, whatever guidance the tie breaker might give would come at the price of a systematic disincentive to arrest in situations where even Atwater concedes arresting would serve an important societal interest. That warrantless misdemeanor arrests do not demand the constitutional attention Atwater seeks is indicated by a number of factors, including that the law has never jelled the way Atwater would have it; that anyone arrested without formal process is entitled to a magistrate's review of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U. S. 44, 55-58; that many jurisdictions have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses; that it is in the police's interest to limit such arrests, which carry costs too great to incur without good reason; and that, under current doctrine, the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable argument that an arrest, with or without a warrant, was conducted in an extraordinary manner, unusually harmful to his privacy or physical interests, e. g., Whren, 517 U. S., at 818. The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and peace officers, is a dearth of horribles demanding redress. Thus, the probable-cause standard applies to all arrests, without the322Syllabusneed to balance the interests and circumstances involved in particular situations. Dunaway v. New York, 442 U. S. 200, 208. An officer may arrest an individual without violating the Fourth Amendment if there is probable cause to believe that the offender has committed even a very minor criminal offense in the officer's presence. Pp. 345-354.(c) Atwater's arrest satisfied constitutional requirements. It is undisputed that Turek had probable cause to believe that Atwater committed a crime in his presence. Because she admits that neither she nor her children were wearing seatbelts, Turek was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether Atwater's arrest was in some sense necessary. Nor was the arrest made in an extraordinary manner, unusually harmful to her privacy or physical interests. See Whren, 517 U. S., at 818. Whether a search or seizure is "extraordinary" turns, above all else, on the manner in which it is executed. See, e. g., ibid. Atwater's arrest and subsequent booking, though surely humiliating, were no more harmful to her interests than the normal custodial arrest. pp. 354-355.195 F.3d 242, affirmed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 360.Robert C. DeCarli argued the cause for petitioners. With him on the briefs were Debra Irwin, Pamela McGraw, and Michael F. Sturley.R. James George, Jr., argued the cause for respondents.With him on the brief were William W Krueger III and Joanna R. Lippman.Gregory S. Coleman, Solicitor General of Texas, argued the cause for the State of Texas et al. as amici curiae urging affirmance. With him on the brief were John Cornyn, Attorney General, Andy Taylor, First Assistant Attorney General, and Lisa R. Eskow, Assistant Attorney General, and the Attorneys General for their respective States as follows:Mark Pryor of Arkansas, Ken Salazar of Colorado, M. Jane Brady of Delaware, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Joseph P. Mazurek of Montana,323W A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, and Mark L. Earley of Virginia. *JUSTICE SOUTER delivered the opinion of the Court.The question is whether the Fourth Amendment forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does not.I AIn Texas, if a car is equipped with safety belts, a frontseat passenger must wear one, Tex. Transp. Code Ann. § 545.413(a) (1999), and the driver must secure any small child riding in front, § 545.413(b). Violation of either provision is "a misdemeanor punishable by a fine not less than $25 or more than $50." § 545.413(d). Texas law expressly authorizes "[a]ny peace officer [to] arrest without warrant a person found committing a violation" of these seatbelt laws, § 543.001, although it permits police to issue citations in lieu of arrest, §§ 543.003-543.005.In March 1997, petitioner Gail Atwater was driving her pickup truck in Lago Vista, Texas, with her 3-year-old son and 5-year-old daughter in the front seat. None of them was*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Susan N Herman and Steven R. Shapiro; for Americans for Effective Law Enforcement, Inc., by Wayne W Schmidt, James P. Manak, and Bernard J. Farber; for the Cato Institute by Timothy Lynch; for the Institute on Criminal Justice at the University of Minnesota Law School et al. by Richard S. Frase; for the National Association of Criminal Defense Lawyers et al. by Wesley MacNeil Oliver and Joshua Dratel; and for the Texas Criminal Defense Lawyers Association by Greg Westfall and William S. Harris.Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Patricia A. Millett; for the National League of Cities et al. by Richard Ruda and James I. Crowley; and for the Texas Police Chiefs Association by James McLaughlin, Jr.324wearing a seatbelt. Respondent Bart Turek, a Lago Vista police officer at the time, observed the seatbelt violations and pulled Atwater over. According to Atwater's complaint (the allegations of which we assume to be true for present purposes), Turek approached the truck and "yell[ed]" something to the effect of "[w]e've met before" and "[y]ou're going to jail." App. 20.1 He then called for backup and asked to see Atwater's driver's license and insurance documentation, which state law required her to carry. Tex. Transp. Code Ann. §§ 521.025, 601.053 (1999). When Atwater told Turek that she did not have the papers because her purse had been stolen the day before, Turek said that he had "heard that story two-hundred times." App.21.Atwater asked to take her "frightened, upset, and crying" children to a friend's house nearby, but Turek told her, "[y]ou're not going anywhere." Ibid. As it turned out, Atwater's friend learned what was going on and soon arrived to take charge of the children. Turek then handcuffed Atwater, placed her in his squad car, and drove her to the local police station, where booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took Atwater's "mug shot" and placed her, alone, in a jail cell for about one hour, after which she was taken before a magistrate and released on $310 bond.Atwater was charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance. She ultimately pleaded no contest to the misdemeanor seatbelt offenses and paid a $50 fine; the other charges were dismissed.1 Turek had previously stopped Atwater for what he had thought was a seatbelt violation, but had realized that Atwater's son, although seated on the vehicle's armrest, was in fact belted in. Atwater acknowledged that her son's seating position was unsafe, and Turek issued a verbal warning. See Record 379.325BAtwater and her husband, petitioner Michael Haas, filed suit in a Texas state court under 42 U. S. C. § 1983 against Turek and respondents City of Lago Vista and Chief of Police Frank Miller. So far as concerns us, petitioners (whom we will simply call Atwater) alleged that respondents (for simplicity, the City) had violated Atwater's Fourth Amendment "right to be free from unreasonable seizure," App. 23, and sought compensatory and punitive damages.The City removed the suit to the United States District Court for the Western District of Texas. Given Atwater's admission that she had "violated the law" and the absence of any allegation "that she was harmed or detained in any way inconsistent with the law," the District Court ruled the Fourth Amendment claim "meritless" and granted the City's summary judgment motion. No. A-97 CA 679 SS (WD Tex., Feb. 13, 1999), App. to Pet. for Cert. 50a-63a. A panel of the United States Court of Appeals for the Fifth Circuit reversed. 165 F.3d 380 (1999). It concluded that "an arrest for a first-time seat belt offense" was an unreasonable seizure within the meaning of the Fourth Amendment, id., at 387, and held that Turek was not entitled to qualified immunity, id., at 389.Sitting en banc, the Court of Appeals vacated the panel's decision and affirmed the District Court's summary judgment for the City. 195 F.3d 242 (CA5 1999). Relying on Whren v. United States, 517 U. S. 806 (1996), the en banc court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, where "an arrest is based on probable cause then 'with rare exceptions ... the result of that balancing is not in doubt.'" 195 F. 3d, at 244 (quoting Whren, supra, at 817). Because "[n]either party dispute[d] that Officer Turek had probable cause to arrest Atwater," and because "there [was] no evidence in the record that Officer Turek conducted the arrest in an 'extraordinary manner, unusually harmful' to At-326water's privacy interests," the en banc court held that the arrest was not unreasonable for Fourth Amendment purposes. 195 F. 3d, at 245-246 (quoting Whren, supra, at 818).Three judges issued dissenting opinions. On the understanding that citation is the "usual procedure" in a traffic stop situation, Judge Reynaldo Garza thought Atwater's arrest unreasonable, since there was no particular reason for taking her into custody. 195 F. 3d, at 246-247. Judge Weiner likewise believed that "even with probable cause, [an] officer must have a plausible, articulable reason" for making a custodial arrest. Id., at 251. Judge Dennis understood the Fourth Amendment to have incorporated an earlier, common-law prohibition on warrantless arrests for misdemeanors that do not amount to or involve a "breach of the peace." Ibid.We granted certiorari to consider whether the Fourth Amendment, either by incorporating common-law restrictions on misdemeanor arrests or otherwise, limits police officers' authority to arrest without warrant for minor criminal offenses. 530 U. S. 1260 (2000). We now affirm.IIThe Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In reading the Amendment, we are guided by "the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing," Wilson v. Arkansas, 514 U. S. 927, 931 (1995), since "[a]n examination of the common-law understanding of an officer's authority to arrest sheds light on the obviously relevant, if not entirely dispositive, consideration of what the Framers of the Amendment might have thought to be reasonable," Payton v. New York, 445 U. S. 573, 591 (1980) (footnote omitted). Thus, the first step here is to assess Atwater's claim that peace officers' authority to make warrantless arrests for misdemeanors was327restricted at common law (whether "common law" is understood strictly as law judicially derived or, instead, as the whole body of law extant at the time of the framing). Atwater's specific contention is that "founding-era common-law rules" forbade peace officers to make warrantless misdemeanor arrests except in cases of "breach of the peace," a category she claims was then understood narrowly as covering only those nonfelony offenses "involving or tending toward violence." Brief for Petitioners 13. Although her historical argument is by no means insubstantial, it ultimately fails.AWe begin with the state of pre-founding English common law and find that, even after making some allowance for variations in the common-law usage of the term "breach of the peace," 2 the "founding-era common-law rules" were not2 The term apparently meant very different things in different commonlaw contexts. For instance, under a statute enacted during the reign of Charles II forbidding service of any warrant or other court process on Sunday "except in cases of treason, felony or breach of the peace," 29 Car. II, ch. 7, § 6, 8 Statutes at Large 414 (1676), "it was held that every indictable offense was constructively a breach of the peace," Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 574 (1924); see also Ex parte Whitchurch, 1 Atk. 56, 58, 26 Eng. Rep. 37, 39 (Ch. 1749). The term carried a similarly broad meaning when employed to define the jurisdiction of justices of the peace, see 2 W. Hawkins, Pleas of the Crown, ch. 8, § 38, p. 60 (6th ed. 1787) (hereinafter Hawkins), or to delimit the scope of parliamentary privilege, see Williamson v. United States, 207 U. S. 425, 435-446 (1908) (discussing common-law origins of Arrest Clause, U. S. Const., Art. I, § 6, cl. 1).Even when used to describe common-law arrest authority, the term's precise import is not altogether clear. See J. Turner, Kenny's Outlines of Criminal Law § 695, p. 537 (17th ed. 1958) ("Strangely enough what constitutes a 'breach of the peace' has not been authoritatively laid down"); G. Williams, Arrest for Breach of the Peace, 1954 Crim. L. Rev. 578, 578-579 ("The expression 'breach of the peace' seems clearer than it is and there is a surprising lack of authoritative definition of what one would suppose to be a fundamental concept in criminal law"); Wilgus, supra, at 573 ("What constitutes a breach of peace is not entirely certain"). More often328nearly as clear as Atwater claims; on the contrary, the common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers' warrantless misdemeanor arrest power. Moreover, in the years leading up to American independence, Parliament repeatedly extended express warrantless arrest authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace.1Atwater's historical argument begins with our quotation from Halsbury in Carroll v. United States, 267 U. S. 132 (1925), that"'[i]n cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.'" Id., at 157 (quoting 9 Halsbury, Laws of England § 612, p. 299 (1909)).than not, when used in reference to common-law arrest power, the term seemed to connote an element of violence. See, e. g., M. Dalton, Country Justice, ch. 3, p. 9 (1727) ("The Breach of thEe] Peace seemeth to be any injurious Force or Violence moved against the Person of another, his Goods, Lands, or other Possessions, whether by threatening words, or by furious Gesture, or Force of the Body, or any other Force used in terrorem"). On occasion, however, common-law commentators included in their descriptions of breaches of the peace offenses that do not necessarily involve violence or a threat thereof. See M. Hale, A Methodical Summary of the Principal Matters Relating to the Pleas of the Crown *134 (7th ed. 1773) ("Barretries"); 4 W. Blackstone, Commentaries on the Laws of England 149 (1769) (hereinafter Blackstone) ("[s]preading false news"). For purposes of this case, it is unnecessary to reach a definitive resolution of the uncertainty. As stated in the text, we will assume that as used in the context of common-law arrest, the phrase "breach of the peace" was understood narrowly, as entailing at least a threat of violence.329But the isolated quotation tends to mislead. In Carroll itself we spoke of the common-law rule as only "sometimes expressed" that way, 267 U. S., at 157, and, indeed, in the very same paragraph, we conspicuously omitted any reference to a breach-of-the-peace limitation in stating that the "usual rule" at common law was that "a police officer [could] arrest without warrant ... one guilty of a misdemeanor if committed in his presence." Id., at 156-157. Thus, what Carroll illustrates, and what others have recognized, is that statements about the common law of warrantless misdemeanor arrest simply are not uniform. Rather, "[a]t common law there is a difference of opinion among the authorities as to whether this right to arrest [without a warrant] extends to all misdemeanors." American Law Institute, Code of Criminal Procedure, Commentary to § 21, p. 231 (1930).On one side of the divide there are certainly eminent authorities supporting Atwater's position. In addition to Lord Halsbury, quoted in Carroll, James Fitzjames Stephen and Glanville Williams both seemed to indicate that the common law confined warrantless misdemeanor arrests to actual breaches of the peace. See 1 J. Stephen, A History of the Criminal Law of England 193 (1883) ("The common law did not authorise the arrest of persons guilty or suspected of misdemeanours, except in cases of an actual breach of the peace either by an affray or by violence to an individual"); G. Williams, Arrest for Breach of the Peace, 1954 Crim. L. Rev. 578, 578 ("Apart from arrest for felony ... , the only power of arrest at common law is in respect of breach of the peace"). See also Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352 (Q. B. 1710) ("[A] constable cannot arrest, but when he sees an actual breach of the peace; and if the affray be over, he cannot arrest").Sir William Blackstone and Sir Edward East might also be counted on Atwater's side, although they spoke only to the sufficiency of breach of the peace as a condition to warrant-330less misdemeanor arrest, not to its necessity. Blackstone recognized that at common law "[t]he constable ... hath great original and inherent authority with regard to arrests," but with respect to nonfelony offenses said only that "[h]e may, without warrant, arrest anyone for a breach of the peace, and carry him before a justice of the peace." 4 Blackstone 289. Not long after the framing of the Fourth Amendment, East characterized peace officers' common-law arrest power in much the same way: "A constable or other known conservator of the peace may lawfully interpose upon his own view to prevent a breach of the peace, or to quiet an affray .... " 1 E. East, Pleas of the Crown § 71, p. 303 (1803).The great commentators were not unanimous, however, and there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition. Sir Matthew Hale, Chief Justice of King's Bench from 1671 to 1676,3 wrote in his History of the Pleas of the Crown that, by his "original and inherent power," a constable could arrest without a warrant "for breach of the peace and some misdemeanors, less than felony." 2 M. Hale, Pleas of the Crown 88 (1736). Hale's view, posthumously published in 1736, reflected an understanding dating back at least 60 years before the appearance of his Pleas yet sufficiently authoritative to sustain a momentum extending well beyond the framing era in this country. See The Compleat Parish-Officer 11 (1744) ("[T]he Constable ... may for Breach of the Peace, and some Misdemeanors less than Felony, imprison a Man"); R. Burn, The Justice of the Peace 271 (1837) ("A constable ... may at common law, for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender without any warrant" (italics in original)); 1 J. Chitty, A Practical3 E. Foss, The Judges of England 113 (1864).331Treatise on the Criminal Law 20 (5th ed. 1847) ("[A constable] may for treason, felony, breach of the peace, and some misdemeanors less than felony, committed in his view, apprehend the supposed offender virtiute officii, without any warrant"); 1 W. Russell, Crimes and Misdemeanors 725 (7th ed. 1909) (officer "may arrest any person who in his presence commits a misdemeanor or breach of the peace").4As will be seen later, the view of warrantless arrest authority as extending to at least "some misdemeanors" beyond breaches of the peace was undoubtedly informed by statutory provisions authorizing such arrests, but it reflected common law in the strict, judge-made sense as well, for such was the holding of at least one case reported before Hale had even become a judge but which, like Hale's own commentary, continued to be cited well after the ratification of the Fourth Amendment. In Holyday v. Oxen bridge, Cro. Car. 234, 79 Eng. Rep. 805 (1631), the Court of King's Bench held that even a private person (and thus a fortiori a peace officer5) needed no warrant to arrest a "common cheater" whom he discovered "cozen[ing] with false dice." The court expressly rejected the contention that warrantless arrests were improper "unless in felony," and said instead that "there was good cause [for] staying" the gambler and, more broadly, that "it is pro bono publico to stay such offenders." Id., at 805-806. In the edition nearest to the date of the Constitution's framing, Sergeant William Hawkins's widely read Treatise of the Pleas of the Crown generalized from Holyday that "from the reason of this case it seems to follow,4 Cf. E. Trotter, Seventeenth Century Life in the Country Parish: With Special Reference to Local Government 88 (1919) (describing broad authority of local constables and concluding that, "[i]n short, the constable must apprehend, take charge of and present for trial all persons who broke the laws, written or unwritten, against the King's peace or against the statutes of the realm ... ").5 See 2 Hawkins, ch. 13, § 1, at 129 ("[W]herever any [warrantless] arrest may be justified by a private person, in every such case a fortiori it may be justified by any [peace] officer").332That the [warrantless] arrest of any other offenders ... for offences in like manner scandalous and prejudicial to the public, may be justified." 2 Hawkins, ch. 12, § 20, at 122. A number of other common-law commentaries shared Hawkins's broad reading of Holyday. See The Law of Arrests 205 (2d ed. 1753) (In light of Holyday, "an Arrest of an Offender ... for any Crime prejudicial to the Publick, seems to be justifiable"); 1 T. Cunningham, A New and Complete Law Dictionary (1771) (definition of "arrest") (same); 1 G. Jacob, The Law Dictionary 129 (1st Am. ed. 1811) (same). See generally C. Greaves, Law of Arrest Without a Warrant, in The Criminal Law Consolidation Acts, p. lxiii (1870) ("[Holyday] is rested upon the broad ground that 'it is pro bono publico to stay such offenders,' which is equally applicable to every case of misdemeanor ... ").6We thus find disagreement, not unanimity, among both the common-law jurists and the text writers who sought to pull the cases together and summarize accepted practice. Having reviewed the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwater's is the correct, or even necessarily the better, reading of the common-law history.6 King v. Wilkes, 2 Wils. K. B. 151,95 Eng. Rep. 737 (1763), and Money v. Leach, 3 Burr. 1742,97 Eng. Rep. 1075 (K. B. 1765), two of the decisions arising out of the controversy that generated Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763), the "paradigm search and seizure case for Americans" of the founding generation, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 772 (1994), also contain dicta suggesting a somewhat broader conception of common-law arrest power than the one Atwater advances. See, e. g., King v. Wilkes, supra, at 158, 95 Eng. Rep., at 741 ("[I]f a crime be done in his sight," a justice of the peace "may commit the criminal upon the spot"); Money v. Leach, supra, at 1766,97 Eng. Rep., at 1088 ("The common law, in many cases, gives authority to arrest without a warrant; more especially, where taken in the very act ... ").3332A second, and equally serious, problem for Atwater's historical argument is posed by the "divers Statutes," M. Dalton, Country Justice, ch. 170, § 4, p. 582 (1727), enacted by Parliament well before this Republic's founding that authorized warrantless misdemeanor arrests without reference to violence or turmoil. Quite apart from Hale and Blackstone, the legal background of any conception of reasonableness the Fourth Amendment's Framers might have entertained would have included English statutes, some centuries old, authorizing peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence. The so-called "nightwalker" statutes are perhaps the most notable examples. From the enactment of the Statute of Winchester in 1285, through its various readoptions and until its repeal in 1827,7 night watchmen were authorized and charged "as ... in Times past" to "watch the Town continually all Night, from the Sun-setting unto the Sun-rising" and were directed that "if any Stranger do pass by them, he shall be arrested until Morning .... " 13 Edw. I, ch. 4, §§ 5-6, 1 Statutes at Large 232-233; see also 5 Edw. III, ch. 14, 1 Statutes at Large 448 (1331) (confirming and extending the powers of watchmen). Hawkins emphasized that the Statute of Winchester "was made" not in derogation but rather "in affirmance of the common law," for "every private person may by the common law arrest any suspicious night-walker, and detain him till he give good account of himself .... " 2 Hawkins, ch. 13, § 6, at 130. And according to Blackstone, these watchmen had virtually limitless warrantless nighttime arrest power: "Watchmen, either those appointed by the statute of Winchester ... or such as are mere assistants to the constable, may virtute officii arrest all offenders, and particularly nightwalkers, and commit them to custody till the morning." 4 Blackstone 289; see77 & 8 Geo. IV, ch. 27, 67 Statutes at Large 153.334also 2 Hale, Pleas of the Crown, at 97 (describing broad arrest powers of watchmen even over and above those conferred by the Statute of Winchester).8 The Statute of Winchester, moreover, empowered peace officers not only to deal with nightwalkers and other nighttime "offenders," but periodically to "make Inquiry of all Persons being lodged in the Suburbs, or in foreign Places of the Towns." On that score, the Statute provided that "if they do find any that have lodged or received any Strangers or suspicious Person, against the Peace, the Bailiffs shall do Righttherein," 13 Edw. I, ch. 4, §§ 3-4, 1 Statutes at Large 232-233, which Hawkins understood "surely" to mean that officers could "lawfully arrest and detain any such stranger[s]," 2 Hawkins, ch. 13, § 12, at 134.Nor were the nightwalker statutes the only legislative sources of warrantless arrest authority absent real or threatened violence, as the parties and their amici here seem to have assumed. On the contrary, following the Edwardian legislation and throughout the period leading up to the framing, Parliament repeatedly extended warrantless arrest power to cover misdemeanor-level offenses not involving any breach of the peace. One 16th-century statute, for instance, authorized peace officers to arrest persons playing "unlawful game[s]" like bowling, tennis, dice, and cards, and for good measure extended the authority beyond players to include persons "haunting" the "houses, places and alleys where such games shall be suspected to be holden, exercised, used8 Atwater seeks to distinguish the nightwalker statutes by arguing that they "just reflected the reasonable notion that, in an age before lighting, finding a person walking about in the dead of night equaled probable suspicion that the person was a felon." Reply Brief for Petitioners 7, n. 6. Hale indicates, however, that nightwalkers and felons were not considered to be one and the same. 2 Hale, Pleas of the Crown, at 97 ("And such a watchman may apprehend night-walkers and commit them to custody till the morning, and also felons and persons suspected of felony").335or occupied." 33 Hen. VIII, ch. 9, §§ 11-16, 5 Statutes at Large 84-85 (1541). A 17th-century act empowered "any person ... whatsoever to seize and detain any ... hawker, pedlar, petty chapman, or other trading person" found selling without a license. 8 & 9 Wm. III, ch. 25, §§ 3, 8, 10 Statutes at Large 81-83 (1697). And 18th-century statutes authorized the warrantless arrest of "rogues, vagabonds, beggars, and other idle and disorderly persons" (defined broadly to include jugglers, palm readers, and unlicensed play actors), 17 Geo. II, ch. 5, §§ 1-2, 5, 18 Statutes at Large 144, 145-147 (1744); "horrid" persons who "profanely swear or curse," 19 Geo. II, ch. 21, § 3, 18 Statutes at Large 445 (1746); individuals obstructing "publick streets, lanes or open passages" with "pipes, butts, barrels, casks or other vessels" or an "empty cart, car, dray or other carriage," 30 Geo. II, ch. 22, §§ 5, 13, 22 Statutes at Large 107-108, 111 (1757); and, most significantly of all given the circumstances of the case before us, negligent carriage drivers, 27 Geo. II, ch. 16, § 7, 21 Statutes at Large 188 (1754). See generally S. Blackerby, The Justice of Peace: His Companion, or a Summary of all the Acts of Parliament (1723) (cataloguing statutes); S. Welch, An Essay on the Office of Constable 19-22 (1758) (describing same).The significance of these early English statutes lies not in proving that any common-law rule barring warrantless misdemeanor arrests that might have existed would have been subject to statutory override; the sovereign Parliament could of course have wiped away any judge-made rule. The point is that the statutes riddle Atwater's supposed common-law rule with enough exceptions to unsettle any contention that the law of the mother country would have left the Fourth Amendment's Framers of a view that it would necessarily have been unreasonable to arrest without warrant for a misdemeanor unaccompanied by real or threatened violence.336BAn examination of specifically American evidence is to the same effect. N either the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater's position.1To begin with, Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers' warrantless misdemeanor arrest authority to instances of actual breach of the peace, and our own review of the recent and respected compilations of framing-era documentary history has likewise failed to reveal any such design. See The Complete Bill of Rights 223263 (N. Cogan ed. 1997) (collecting original sources); 5 The Founders' Constitution 219-244 (P. Kurland & R. Lerner eds. 1987) (same). Nor have we found in any of the modern historical accounts of the Fourth Amendment's adoption any substantial indication that the Framers intended such a restriction. See, e. g., L. Levy, Origins of the Bill of Rights 150-179 (1999); T. Taylor, Two Studies in Constitutional Interpretation 19-93 (1969); J. Landynski, Search and Seizure and the Supreme Court 19-48 (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937); Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999); Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994); Bradley, Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817 (1989). Indeed, to the extent these modern histories address the issue, their conclusions are to the contrary. See Landynski, supra, at 45 (Fourth Amendment arrest rules are "based on common-law practice," which "dispensed with" a warrant requirement for misdemeanors "committed in the presence of the arresting officer"); Davies, supra, at 551 ("[T]he Framers did not address337warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that 'unreasonable' might be read as a standard for warrantless intrusions").The evidence of actual practice also counsels against Atwater's position. During the period leading up to and surrounding the framing of the Bill of Rights, colonial and state legislatures, like Parliament before them, supra, at 333-335, regularly authorized local peace officers to make warrantless misdemeanor arrests without conditioning statutory authority on breach of the peace. See, e. g., First Laws of the State of Connecticut 214-215 (Cushing ed. 1982) (1784 compilation; exact date of Act unknown) (authorizing warrantless arrests of "all Persons unnecessarily travelling on the Sabbath or Lord's Day"); id., at 23 ("such as are guilty of Drunkenness, profane Swearing, Sabbath-breaking, also vagrant Persons [and] unseasonable Night-walkers"); Digest of the Laws of the State of Georgia 1755-1800, p. 411 (H. Marbury & w. Crawford eds. 1802) (1762 Act) (breakers of the Sabbath laws); id., at 252 (1764 Act) (persons "gaming ... in any licensed public house, or other house selling liquors"); Colonial Laws of Massachusetts 139 (1889) (1646 Act) ("such as are overtaken with drink, swearing, Sabbath breaking, Lying, vagrant persons, [and] night-walkers"); Laws of the State of New Hampshire 549 (1800) (1799 Act) (persons "travelling unnecessarily" on Sunday); Digest of the Laws of New Jersey 1709-1838, pp. 585-586 (L. Elmer ed. 1838) (1799 Act) ("vagrants or vagabonds, common drunkards, common night-walkers, and common prostitutes," as well as fortunetellers and other practitioners of "crafty science"); Laws of the State of New York, 1777-1784, pp. 358-359 (1886) (1781 Act) ("hawker[s]" and "pedlar[s]"); Earliest Printed Laws of New York, 1665-1693, p. 133 (J. Cushing ed. 1978) (Duke of York's Laws, 1665-1675) ("such as are overtaken with Drink, Swearing, Sabbath breaking, Vagrant persons or night walkers"); 3 Laws of the Commonwealth of Pennsylvania 177-183338(1810) (1794 Act) (persons "profanely curs[ing]," drinking excessively, "cock-fighting," or "play[ing] at cards, dice, billiards, bowls, shuffle-boards, or any game of hazard or address, for money").9What we have here, then, is just the opposite of what we had in Wilson v. Arkansas. There, we emphasized that during the founding era a number of States had "enacted statutes specifically embracing" the common-law knock-andannounce rule, 514 U. S., at 933; here, by contrast, those very same States passed laws extending warrantless arrest authority to a host of nonviolent misdemeanors, and in so doing acted very much inconsistently with Atwater's claims about the Fourth Amendment's object. Of course, the Fourth9 Given these early colonial and state laws, the fact that a number of States that ratified the Fourth Amendment generally incorporated common-law principles into their own constitutions or statutes, see Wilson v. Arkansas, 514 U. S. 927, 934 (1995), cannot aid Atwater here. Founding-era receptions of common law, whether by state constitution or state statute, generally provided that common-law rules were subject to statutory alteration. See, e. g., Del. Const., Art. 25 (1776), 2 W. Swindler, Sources and Documents of United States Constitutions 203 (1973) (hereinafter Swindler) ("The common law of England ... shall remain in force, unless [it] shall be altered by a future law of the legislature"); N. J. Const., Art. XXII (1776), 6 Swindler 452 ("[T]he common law of England ... shall still remain in force, until [it] shall be altered by a future law of the Legislature"); N. Y. Const., Art. XXXV (1777), 7 Swindler 177-178 ("[S]uch parts of the common law of England, and of the statute law of England and Great Britain ... as together did form the law of [New York on April 19, 1775,] shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same"); N. C. Laws 1778, ch. V, in 1 First Laws of the State of North Carolina 353 (J. Cushing ed. 1984) ("[A]ll such ... Parts of the Common Law, as were heretofore in Force and Use within this Territory ... which have not been ... abrogated [or] repealed ... are hereby declared to be in full Force within this State"); Ordinances of May 1776, ch. 5, § 6, 9 Statutes at Large of Virginia 127 (W. Hening ed. 1821) ("[T]he common law of England ... shall be the rule of decision, and shall be considered in full force, until the same shall be altered by the legislative power of this colony").339Amendment did not originally apply to the States, see Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), but that does not make state practice irrelevant in unearthing the Amendment's original meaning. A number of state constitutional search-and-seizure provisions served as models for the Fourth Amendment, see, e. g., N. H. Const. of 1784, pt. I, Art. XIX; Pa. Const. of 1776 (Declaration of Rights), Art. X, and the fact that many of the original States with such constitutionallimitations continued to grant their own peace officers broad warrantless misdemeanor arrest authority undermines Atwater's contention that the founding generation meant to bar federal law enforcement officers from exercising the same authority. Given the early state practice, it is likewise troublesome for Atwater's view that just one year after the ratification of the Fourth Amendment, Congress vested federal marshals with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, ch. 28, § 9, 1 Stat. 265. Thus, as we have said before in only slightly different circumstances, the Second Congress apparently "saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers" to make warrantless arrests. United States v. Watson, 423 U. S. 411, 420 (1976).10The record thus supports Justice Powell's observation that "[t]here is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at10 Courts and commentators alike have read the 1792 Act as conferring broad warrantless arrest authority on federal officers, and, indeed, the Act's passage "so soon after the adoption of the Fourth Amendment itself underscores the probability that the constitutional provision was intended to restrict entirely different practices." Watson, 423 U. S., at 429 (Powell, J., concurring); see also Amar, Fourth Amendment First Principles, 107 Harv. L. Rev., at 764, and n. 14.340all concerned about warrantless arrests by local constables and other peace officers." Id., at 429 (concurring opinion). We simply cannot conclude that the Fourth Amendment, as originally understood, forbade peace officers to arrest without a warrant for misdemeanors not amounting to or involving breach of the peace.2Nor does Atwater's argument from tradition pick up any steam from the historical record as it has unfolded since the framing, there being no indication that her claimed rule has ever become "woven ... into the fabric" of American law. Wilson, supra, at 933; see also Payton v. New York, 445 U. S., at 590 (emphasizing "the clear consensus among the States adhering to [a] well-settled common-law rule"). The story, on the contrary, is of two centuries of uninterrupted (and largely unchallenged) state and federal practice permitting warrantless arrests for misdemeanors not amounting to or involving breach of the peace.First, there is no support for Atwater's position in this Court's cases (apart from the isolated sentence in Carroll, already explained). Although the Court has not had much to say about warrantless misdemeanor arrest authority, what little we have said tends to cut against Atwater's argument. In discussing this authority, we have focused on the circumstance that an offense was committed in an officer's presence, to the omission of any reference to a breach-of-the-peace limitation.ll See, e. g., United States v. Watson, supra, at 418 ("The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony11 We need not, and thus do not, speculate whether the Fourth Amendment entails an "in the presence" requirement for purposes of misdemeanor arrests. Cf. Welsh v. Wisconsin, 466 U. S. 740, 756 (1984) (White, J., dissenting) ("[T]he requirement that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment").341committed in his presence ... "); Carroll, 267 U. S., at 156157 ("The usual rule is that a police officer may arrest without warrant one ... guilty of a misdemeanor if committed in his presence"); Bad Elk v. United States, 177 U. S. 529, 534, 536, n. 1 (1900) (noting common-law pedigree of state statute permitting warrantless arrest "[f]or a public offense committed or attempted in [officer's] presence"); Kurtz v. Moffitt, 115 U. S. 487, 499 (1885) (common-law presence requirement); cf. also Welsh v. Wisconsin, 466 U. S. 740, 756 (1984) (White, J., dissenting) (" '[A]uthority to arrest without a warrant in misdemeanor cases may be enlarged by statute' ").Second, and again in contrast with Wilson, it is not the case here that "[e]arly American courts ... embraced" an accepted common-law rule with anything approaching unanimity. Wilson v. Arkansas, 514 U. S., at 933. To be sure, Atwater has cited several 19th-century decisions that, at least at first glance, might seem to support her contention that "warrantless misdemeanor arrest was unlawful when not [for] a breach of the peace." Brief for Petitioners 17 (citing Pow v. Beckner, 3 Ind. 475, 478 (1852), Commonwealth v. Carey, 66 Mass. 246, 250 (1853), and Robison v. Miner, 68 Mich. 549, 556-559, 37 N. W. 21, 25 (1888)). But none is ultimately availing. Pow is fundamentally a "presence" case; it stands only for the proposition, not at issue here, see n. 11, supra, that a nonfelony arrest should be made while the offense is "in [the officer's] view and ... still continuing" and not subsequently "upon vague information communicated to him." 3 Ind., at 478. The language Atwater attributes to Carey ("[E]ven if he were a constable, he had no power to arrest for any misdemeanor without a warrant, except to stay a breach of the peace, or to prevent the commission of such an offense") is taken from the reporter's summary of one of the party's arguments, not from the opinion of the court. While the court in Carey (through Chief Justice Shaw) said that "the old established rule of the common law" was that "a constable or other peace officer could not342arrest one without a warrant ... if such crime were not an offence amounting in law to felony," it said just as clearly that the common-law rule could be "altered by the legislature" (notwithstanding Massachusetts's own Fourth Amendment equivalent in its State Constitution). 66 Mass., at 252. Miner, the third and final case upon which Atwater relies, was expressly overruled just six years after it was decided. In Burroughs v. Eastman, 101 Mich. 419, 59 N. W. 817 (1894), the Supreme Court of Michigan held that the language from Miner upon which the plaintiff there (and presumably Atwater here) relied "should not be followed," and then went on to offer the following: "[T]he question has arisen in many of our sister states, and the power to authorize arrest on view for offenses not amounting to breaches of the peace has been affirmed. Our attention has been called to no case, nor have we in our research found one, in which the contrary doctrine has been asserted." 101 Mich., at 425, 59 N. w., at 819 (collecting cases from, e. g., Illinois, Indiana, Massachusetts, Minnesota, Missouri, New Hampshire, New York, Ohio, and Texas).The reports may well contain early American cases more favorable to Atwater's position than the ones she has herself invoked. But more to the point, we think, are the numerous early- and mid-19th-century decisions expressly sustaining (often against constitutional challenge) state and local laws authorizing peace officers to make warrantless arrests for misdemeanors not involving any breach of the peace. See, e. g., Mayo v. Wilson, 1 N. H. 53 (1817) (upholding statute authorizing warrantless arrests of those unnecessarily traveling on Sunday against challenge based on state due process and search-and-seizure provisions); Holcomb v. Cornish, 8 Conn. 375 (1831) (upholding statute permitting warrantless arrests for "drunkenness, profane swearing, cursing or sabbath-breaking" against argument that "[t]he power of a justice of the peace to arrest and detain a citizen without complaint or warrant against him, is surely not given by the343common law"); Jones v. Root, 72 Mass. 435 (1856) (rebuffing constitutional challenge to statute authorizing officers "without a warrant [to] arrest any person or persons whom they may find in the act of illegally selling, transporting, or distributing intoxicating liquors"); Main v. McCarty, 15 Ill. 441, 442 (1854) (concluding that a law expressly authorizing arrests for city-ordinance violations was "not repugnant to the constitution or the general provisions of law"); White v. Kent, 11 Ohio St. 550 (1860) (upholding municipal ordinance permitting warrantless arrest of any person found violating any city ordinance or state law); Davis v. American Soc. for Prevention of Cruelty to Animals, 75 N. Y. 362 (1878) (upholding statute permitting warrantless arrest for misdemeanor violation of cruelty-to-animals prohibition). See generally Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 550, and n. 54 (1924) (collecting cases and observing that "[t]he states may, by statute, enlarge the common law right to arrest without a warrant, and have quite generally done so or authorized municipalities to do so, as for example, an officer may be authorized by statute or ordinance to arrest without a warrant for various misdemeanors and violations of ordinances, other than breaches of the peace, if committed in his presence"); id., at 706, nn. 570, 571 (collecting cases); 1 J. Bishop, New Criminal Procedure §§ 181, 183, pp. 101, n. 2, 103, n. 5 (4th ed. 1895) (same); W. Clark, Handbook of Criminal Procedure § 12, p. 50, n. 8 (2d ed. 1918) (same).Finally, both the legislative tradition of granting warrantless misdemeanor arrest authority and the judicial tradition of sustaining such statutes against constitutional attack are buttressed by legal commentary that, for more than a century now, has almost uniformly recognized the constitutionality of extending warrantless arrest power to misdemeanors without limitation to breaches of the peace. See, e. g., E. Fisher, Laws of Arrest § 59, p. 130 (1967) ("[I]t is generally recognized today that the common law authority to arrest without a warrant in misdemeanor cases may be enlarged by344statute, and this has been done in many of the states"); Wilgus, supra, at 705-706 ("Statutes and municipal charters have quite generally authorized an officer to arrest for any misdemeanor whether a breach of the peace or not, without a warrant, if committed in the officer's presence. Such statutes are valid" (footnote omitted)); Clark, supra, § 12, at 50 ("In most, if not all, the states there are statutes and city ordinances, which are clearly valid, authorizing officers to arrest for certain misdemeanors without a warrant, when committed in their presence"); J. Beale, Criminal Pleading and Practice § 21, p. 20, and n. 7 (1899) ("By statute the power of peace officers to arrest without a warrant is often extended to all misdemeanors committed in their presence." "Such a statute is constitutional"); 1 Bishop, supra, § 183, at 103 ("[T]he power of arrest extends, possibly, to any indictable wrong in [an officer's] presence .... And statutes and ordinances widely permit these arrests for violations of municipal by-laws"); J. Bassett, Criminal Pleading and Practice § 89, p. 104 (2d ed. 1885) ("[A]s to the lesser misdemeanors, except breaches of the peace, the power extends only so far as some statute gives it"). But cf. H. Vorhees, Law of Arrest § 131, pp. 78-79 (1904) (acknowledging that "by authority of statute, city charter, or ordinance, [an officer] may arrest without a warrant, one who ... commits a misdemeanor other than a breach of the peace," but suggesting that courts look with "disfavor" on such legislative enactments "as interfering with the constitutional liberties of the subject").Small wonder, then, that today statutes in all 50 States and the District of Columbia permit warrantless misdemeanor arrests by at least some (if not all) peace officers without requiring any breach of the peace,12 as do a host of congressional enactments.13 The American Law Institute12 See Appendix, infra.13 See, e. g., 18 U. S. C. § 3052 (Federal Bureau of Investigation agents authorized to "make arrests without warrant for any offense against the United States committed in their presence"); § 3053 (same, for United345has long endorsed the validity of such legislation, see American Law Institute, Code of Criminal Procedure § 21(a), p. 28 (1930); American Law Institute, Model Code of PreArraignment Procedure § 120.1(1)(c), p. 13 (1975), and the consensus, as stated in the current literature, is that statutes "remov[ing] the breach of the peace limitation and thereby permit[ting] arrest without warrant for any misdemeanor committed in the arresting officer's presence" have" 'never been successfully challenged and stan[d] as the law of the land.'" 3 W. LaFave, Search and Seizure § 5.1(b), pp. 13-14, and n. 76 (1996) (quoting Higbee v. San Diego, 911 F.2d 377, 379 (CA9 1990)) (emphasis in original; footnote omitted). This, therefore, simply is not a case in which the claimant can point to "a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since." County of Riverside v. McLaughlin, 500 U. S. 44, 60 (1991) (SCALIA, J., dissenting).IIIWhile it is true here that history, if not unequivocal, has expressed a decided, majority view that the police need not obtain an arrest warrant merely because a misdemeanor stopped short of violence or a threat of it, Atwater does not wager all on history.14 Instead, she asks us to mint a newStates marshals and deputies); § 3056(c)(I)(C) (same, for Secret Service agents); § 3061(a)(2) (same, for postal inspectors); § 3063(a)(3) (same, for Environmental Protection Agency officers); 19 U. S. C. § 1589a(3) (same, for customs officers); 21 U. S. C. § 878(a)(3) (same, for Drug Enforcement Administration agents); 25 U. S. C. § 2803(3)(A) (same, for Bureau of Indian Mfairs officers).14 And, indeed, the dissent chooses not to deal with history at all. See post, p. 360 (opinion of O'CONNOR, J.). As is no doubt clear from the text, the historical record is not nearly as murky as the dissent suggests. See, e. g., supra, at 333-335 (parliamentary statutes clearly authorizing warrantless arrests for misdemeanor-level offenses), 337-338 (colonial and founding-era state statutes clearly authorizing same). History, moreover, is not just "one of the tools" relevant to a Fourth Amendment inquiry, post, at 361. JUSTICE O'CONNOR herself has observed that courts must346rule of constitutional law on the understanding that when historical practice fails to speak conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness. See Wyoming v. Houghton, 526 U. S. 295, 299-300 (1999); Vernonia School Dist. J,7J v. Acton, 515 U. S. 646, 652-653 (1995). Atwater accordingly argues for a modern arrest rule, one not necessarily requiring violent breach of the peace, but nonetheless forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and when the government shows no compelling need for immediate detention. 15If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail. She was a known and established resident of Lago Vista with no place to hide and no incentive to flee, and common sense says she would almost certainly have buckled up as a condition of driving off with a citation. In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercisingbe "reluctant ... to conclude that the Fourth Amendment proscribes a practice that was accepted at the time of adoption of the Bill of Rights and has continued to receive the support of many state legislatures," Tennessee v. Garner, 471 U. S. 1, 26 (1985) (dissenting opinion), as the practice of making warrantless misdemeanor arrests surely was and has, see supra, at 337-345. Because here the dissent "c1aim[s] that [a] practic[e] accepted when the Fourth Amendment was adopted [is] now constitutionally impermissible," the dissent bears the "heavy burden" of justifying a departure from the historical understanding. 471 U. S., at 26.15 Although it is unclear from Atwater's briefs whether the rule she proposes would bar custodial arrests for fine-only offenses even when made pursuant to a warrant, at oral argument Atwater's counsel "concede[d] that if a warrant were obtained, this arrest ... would ... be reasonable." Tr. of Oral Arg. 5.347extremely poor judgment. Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review. See, e. g., United States v. Robinson, 414 U. S. 218, 234-235 (1973). Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial second-guessing months and years after an arrest or search is made. Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government's side with an essential interest in readily administrable rules. See New York v. Belton, 453 U. S. 454, 458 (1981) (Fourth Amendment rules" 'ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged'" and not" 'qualified by all sorts of ifs, ands, and buts' ").16At first glance, Atwater's argument may seem to respect the values of clarity and simplicity, so far as she claims that the Fourth Amendment generally forbids warrantless arrests for minor crimes not accompanied by violence or some16 Terry v. Ohio, 392 U. S. 1 (1968), upon which the dissent relies, see post, at 366, is not to the contrary. Terry certainly supports a more finely tuned approach to the Fourth Amendment when police act without the traditional justification that either a warrant (in the case of a search) or probable cause (in the case of arrest) provides; but at least in the absence of "extraordinary" circumstances, Whren v. United States, 517 U. S. 806, 818 (1996), there is no comparable cause for finicking when police act with such justification.348demonstrable threat of it (whether "minor crime" be defined as a fine-only traffic offense, a fine-only offense more generally, or a misdemeanor17). But the claim is not ultimately so simple, nor could it be, for complications arise the moment we begin to think about the possible applications of the several criteria Atwater proposes for drawing a line between minor crimes with limited arrest authority and others not so restricted.One line, she suggests, might be between "jailable" and "fine-only" offenses, between those for which conviction could result in commitment and those for which it could not. The trouble with this distinction, of course, is that an officer on the street might not be able to tell. It is not merely that we cannot expect every police officer to know the details of frequently complex penalty schemes, see Berkemer v. McCarty, 468 U. S. 420, 431, n. 13 (1984) ("[O]fficers in the field frequently 'have neither the time nor the competence to determine' the severity of the offense for which they are considering arresting a person"), but that penalties for ostensibly identical conduct can vary on account of facts difficult (if not impossible) to know at the scene of an arrest. Is this the first offense or is the suspect a repeat offender? 18 Is the weight of the marijuana a gram above or a gram below17 Compare, e. g., Brief for Petitioners 46 ("fine-only") with, e. g., Tr. of Oral Arg. 11 (misdemeanors). Because the difficulties attendant to any major crime-minor crime distinction are largely the same, we treat them together.18 See, e. g., Welsh, 466 U. S., at 756 (first DUI offense subject to maximum fine of $200; subsequent offense punishable by one year's imprisonment); Carroll v. United States, 267 U. S. 132, 154 (1925) (first offense of smuggling liquor subject to maximum fine of $500; subsequent offense punishable by 90 days' imprisonment); 21 U. S. C. §§ 844a(a), (c) (first offense for possession of "personal use amount" of controlled substance subject to maximum $10,000 fine; subsequent offense punishable by imprisonment); Tex. Penal Code Ann. §§ 42.01, 49.02, 12.23, 12.43 (1994 and Supp. 2001) (first public drunkenness or disorderly conduct offense subject to maximum $500 fine; third offense punishable by 180 days' imprisonment).349the fine-only line? 19 Where conduct could implicate more than one criminal prohibition, which one will the district attorney ultimately decide to charge? 20 And so on.But Atwater's refinements would not end there. She represents that if the line were drawn at nonjailable traffic offenses, her proposed limitation should be qualified by a proviso authorizing warrantless arrests where "necessary for enforcement of the traffic laws or when [an] offense would otherwise continue and pose a danger to others on the road." Brief for Petitioners 46 (internal quotation marks omitted). (Were the line drawn at misdemeanors generally, a comparable qualification would presumably apply.) The proviso only compounds the difficulties. Would, for instance, either exception apply to speeding? At oral argument, Atwater's counsel said that "it would not be reasonable to arrest a driver for speeding unless the speeding rose to the level of reckless driving." Tr. of Oral Arg. 16. But is it not fair to expect that the chronic speeder will speed again despite a citation in his pocket, and should that not qualify as showing that the "offense would ... continue" under Atwater's rule? And why, as a constitutional matter, should we assume that only reckless driving will "pose a danger to others on the road" while speeding will not?19 See, e. g., 21 U. S. C. §§ 844, 844a (possession of "personal use amount" of a controlled substance subject to maximum $10,000 fine; possession of larger amount punishable by one year's imprisonment); Tex. Health & Safety Code Ann. § 481.121 (b) (Supp. 2001) (possession of four ounces or less of marijuana a misdemeanor; possession of more than four ounces a felony). See generally National Survey of State Laws 151-188 (3d R. Leiter ed. 1999) (surveying state laws concerning drug possession).20 For instance, the act of allowing a small child to stand unrestrained in the front seat of a moving vehicle at least arguably constitutes child endangerment, which under Texas law is a state jail felony. Tex. Penal Code Ann. §§22.041(c), (f) (Supp. 2001). Cf. also 21 Am. Jur. 2d, Criminal Law § 28 (1998) ("[S]ome statutory schemes permit courts in their discretion to term certain offenses as felonies or as misdemeanors").350There is no need for more examples to show that Atwater's general rule and limiting proviso promise very little in the way of administrability. It is no answer that the police routinely make judgments on grounds like risk of immediate repetition; they surely do and should. But there is a world of difference between making that judgment in choosing between the discretionary leniency of a summons in place of a clearly lawful arrest, and making the same judgment when the question is the lawfulness of the warrantless arrest itself. It is the difference between no basis for legal action challenging the discretionary judgment, on the one hand, and the prospect of evidentiary exclusion or (as here) personal § 1983 liability for the misapplication of a constitutional standard, on the other. Atwater's rule therefore would not only place police in an almost impossible spot but would guarantee increased litigation over many of the arrests that would occur.21 For all these reasons, Atwater's various distinctions between permissible and impermissible arrests for minor crimes strike us as "very unsatisfactory line[sJ" to require police officers to draw on a moment's notice. CarrollOne may ask, of course, why these difficulties may not be answered by a simple tie breaker for the police to follow in the field: if in doubt, do not arrest. The first answer is that in practice the tie breaker would boil down to something akin to a least-restrictive-alternative limitation, which is itself one of those "ifs, ands, and buts" rules, New York v. Belton, 453 U. S., at 458, generally thought inappropriate in working out Fourth Amendment protection. See, e. g., Skinner v. Railway Labor Executives' Assn., 489 U. S. 602,21 See United States v. Watson, 423 U. S. 411, 423-424 (1976) ("[T]he judgment of the Nation and Congress has ... long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like").351629, n. 9 (1989) (collecting cases); United States v. MartinezFuerte, 428 U. S. 543, 557-558, n. 12 (1976) ("The logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all searchand-seizure powers"). Beyond that, whatever help the tie breaker might give would come at the price of a systematic disincentive to arrest in situations where even Atwater concedes that arresting would serve an important societal interest. An officer not quite sure that the drugs weighed enough to warrant jail time or not quite certain about a suspect's risk of flight would not arrest, even though it could perfectly well turn out that, in fact, the offense called for incarceration and the defendant was long gone on the day of trial. Multiplied many times over, the costs to society of such underenforcement could easily outweigh the costs to defendants of being needlessly arrested and booked, as Atwater herself acknowledges.22Just how easily the costs could outweigh the benefits may be shown by asking, as one Member of this Court did at oral argument, "how bad the problem is out there." Tr. of Oral Arg. 20. The very fact that the law has never jelled the way Atwater would have it leads one to wonder whether warrantless misdemeanor arrests need constitutional atten-22 The doctrine of qualified immunity is not the panacea the dissent believes it to be. See post, at 367-368. As the dissent itself rightly acknowledges, even where personal liability does not ultimately materialize, the mere "specter of liability" may inhibit public officials in the discharge of their duties, post, at 368, for even those officers with airtight qualified immunity defenses are forced to incur "the expenses of litigation" and to endure the "diversion of [their] official energy from pressing public issues," Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982). Further, and somewhat perversely, the disincentive to arrest produced by Atwater's opaque standard would be most pronounced in the very situations in which police officers can least afford to hesitate: when acting "on the spur (and in the heat) of the moment," supra, at 347. We could not seriously expect that when events were unfolding fast, an officer would be able to tell with much confidence whether a suspect's conduct qualified, or even "reasonably" qualified, under one of the exceptions to Atwater's general no-arrests rule.352tion, and there is cause to think the answer is no. So far as such arrests might be thought to pose a threat to the probable-cause requirement, anyone arrested for a crime without formal process, whether for felony or misdemeanor, is entitled to a magistrate's review of probable cause within 48 hours, County of Riverside v. McLaughlin, 500 U. S., at 55-58, and there is no reason to think the procedure in this case atypical in giving the suspect a prompt opportunity to request release, see Tex. Transp. Code Ann. § 543.002 (1999) (persons arrested for traffic offenses to be taken "immediately" before a magistrate). Many jurisdictions, moreover, have chosen to impose more restrictive safeguards through statutes limiting warrantless arrests for minor offenses. See, e. g., Ala. Code § 32-1-4 (1999); Cal. Veh. Code Ann. § 40504 (West 2000); Ky. Rev. Stat. Ann. §§ 431.015(1), (2) (Michie 1999); La. Rev. Stat. Ann. § 32:391 (West 1989); Md. Transp. Code Ann. § 26-202(a)(2) (1999); S. D. Codified Laws § 32-33-2 (1998); Tenn. Code Ann. § 40-7-118(b)(1) (1997); Va. Code Ann. § 46.2-936 (Supp. 2000). It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution, simply because the statute can let the arrest power turn on any sort of practical consideration without having to subsume it under a broader principle. It is, in fact, only natural that States should resort to this sort of legislative regulation, for, as Atwater's own amici emphasize, it is in the interest of the police to limit pettyoffense arrests, which carry costs that are simply too great to incur without good reason. See Brief for Institute on Criminal Justice at the University of Minnesota Law School and Eleven Leading Experts on Law Enforcement and Corrections Administration and Policy as Amici Curiae 11 (the use of custodial arrests for minor offenses "[a]ctually [c]ontradicts [l]aw [e]nforcement [i]nterests"). Finally, and significantly, under current doctrine the preference for categorical treatment of Fourth Amendment claims gives way to individualized review when a defendant makes a colorable353argument that an arrest, with or without a warrant, was "conducted in an extraordinary manner, unusually harmful to [his] privacy or even physical interests." Whren v. United States, 517 U. S., at 818; see also Graham v. Connor, 490 U. S. 386, 395-396 (1989) (excessive force actionable under § 1983).The upshot of all these influences, combined with the good sense (and, failing that, the political accountability) of most local lawmakers and law-enforcement officials, is a dearth of horribles demanding redress. Indeed, when Atwater's counsel was asked at oral argument for any indications of comparably foolish, warrantless misdemeanor arrests, he could offer only one.23 We are sure that there are others,24 but just as surely the country is not confronting anything like an epidemic of unnecessary minor-offense arrests.25 That fact caps the reasons for rejecting Atwater's request23 He referred to a newspaper account of a girl taken into custody for eating french fries in a Washington, D. C., subway station. Tr. of Oral Arg. 20-21; see also Washington Post, Nov. 16, 2000, p. Al (describing incident). Not surprisingly, given the practical and political considerations discussed in text, the Washington Metro Transit Police recently revised their "zero-tolerance" policy to provide for citation in lieu of custodial arrest of subway snackers. Washington Post, Feb. 27, 2001, at Bl.24 One of Atwater's amici described a handful in its brief. Brief for American Civil Liberties Union et al. as Amici Curiae 7-8 (reporting arrests for littering, riding a bicycle without a bell or gong, operating a business without a license, and "walking as to create a hazard").25 The dissent insists that a minor traffic infraction "may often serve as an excuse" for harassment, and that fine-only misdemeanor prohibitions "may be enforced" in an arbitrary manner. Post, at 372. Thus, the dissent warns, the rule that we recognize today "has potentially serious consequences for the everyday lives of Americans" and "carries with it grave potential for abuse." Post, at 371, 372. But the dissent's own language (e. g., "may," "potentially") betrays the speculative nature of its claims. Noticeably absent from the parade of horribles is any indication that the "potential for abuse" has ever ripened into a reality. In fact, as we have pointed out in text, there simply is no evidence of widespread abuse of minor-offense arrest authority.354for the development of a new and distinct body of constitutionallaw.Accordingly, we confirm today what our prior cases have intimated: the standard of probable cause "applie[s] to all arrests, without the need to 'balance' the interests and circumstances involved in particular situations." Dunaway v. New York, 442 U. S. 200, 208 (1979). If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.IVAtwater's arrest satisfied constitutional requirements.There is no dispute that Officer Turek had probable cause to believe that Atwater had committed a crime in his presence. She admits that neither she nor her children were wearing seatbelts, as required by Tex. Transp. Code Ann. § 545.413 (1999). Turek was accordingly authorized (not required, but authorized) to make a custodial arrest without balancing costs and benefits or determining whether or not Atwater's arrest was in some sense necessary.Nor was the arrest made in an "extraordinary manner, unusually harmful to [her] privacy or ... physical interests." Whren v. United States, 517 U. S., at 818. As our citations in Whren make clear, the question whether a search or seizure is "extraordinary" turns, above all else, on the manner in which the search or seizure is executed. See ibid. (citing Tennessee v. Garner, 471 U. S. 1 (1985) ("seizure by means of deadly force"), Wilson v. Arkansas, 514 U. S. 927 (1995) ("unannounced entry into a home"), Welsh v. Wisconsin, 466 U. S. 740 (1984) ("entry into a home without a warrant"), and Winston v. Lee, 470 U. S. 753 (1985) ("physical penetration of the body")). Atwater's arrest was surely "humiliating," as she says in her brief, but it was no more "harmful to ... privacy or ... physical interests" than the normal custodial arrest. She was handcuffed, placed in a squad car, and355taken to the local police station, where officers asked her to remove her shoes, jewelry, and glasses, and to empty her pockets. They then took her photograph and placed her in a cell, alone, for about an hour, after which she was taken before a magistrate, and released on $310 bond. The arrest and booking were inconvenient and embarrassing to Atwater, but not so extraordinary as to violate the Fourth Amendment.The Court of Appeals's en banc judgment is affirmed.It is so ordered

OCTOBER TERM, 2000SyllabusATWATER ET AL. v. CITY OF LAGO VISTA ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 99-1408. Argued December 4, 2000-Decided April 24, 2001Texas law makes it a misdemeanor, punishable only by a fine, either for a front-seat passenger in a car equipped with safety belts not to wear one or for the driver to fail to secure any small child riding in front. The warrantless arrest of anyone violating these provisions is expressly authorized by statute, but the police may issue citations in lieu of arrest. Petitioner Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. Respondent Turek, then a Lago Vista policeman, observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her "mug shot" and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond. She was charged with, among other things, violating the seatbelt law. She pleaded no contest to the seatbelt misdemeanors and paid a $50 fine. She and her husband (collectively Atwater) filed suit under 42 U. S. C. § 1983, alleging, inter alia, that the actions of respondents (collectively City) had violated her Fourth Amendment right to be free from unreasonable seizure. Given her admission that she had violated the law and the absence of any allegation that she was harmed or detained in any way inconsistent with the law, the District Court ruled the Fourth Amendment claim meritless and granted the City summary judgment. Sitting en banc, the Fifth Circuit affirmed. Relying on Whren v. United States, 517 U. S. 806, 817-818, the court observed that, although the Fourth Amendment generally requires a balancing of individual and governmental interests, the result is rarely in doubt where an arrest is based on probable cause. Because no one disputed that Turek had probable cause to arrest Atwater, and there was no evidence the arrest was conducted in an extraordinary manner, unusually harmful to Atwater's privacy interests, the court held the arrest not unreasonable for Fourth Amendment purposes.Held: The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Pp. 326-355.319(a) In reading the Fourth Amendment, the Court is guided by the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. E. g., Wilson v. Arkansas, 514 U. S. 927, 931. Atwater contends that founding-era common-law rules forbade officers to make warrantless misdemeanor arrests except in cases of "breach of the peace," a category she claims was then understood narrowly as covering only those nonfelony offenses involving or tending toward violence. Although this argument is not insubstantial, it ultimately fails. Pp. 326-345.(1) Even after making some allowance for variations in the prefounding English common-law usage of "breach of the peace," the founding-era common-law rules were not nearly as clear as Atwater claims. Pp. 327-335.(i) A review of the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, demonstrates disagreement, not unanimity, with respect to officers' warrantless misdemeanor arrest power. On one side, eminent authorities support Atwater's position that the common law confined warrantless misdemeanor arrests to actual breaches of the peace. See, e. g., Queen v. Tooley, 2 Ld. Raym. 1296, 1301, 92 Eng. Rep. 349, 352. However, there is also considerable evidence of a broader conception of common-law misdemeanor arrest authority unlimited by any breach-of-the-peace condition. See, e. g., Holyday v. Oxenbridge, Cro. Car. 234, 79 Eng. Rep. 805, 805-806; 2 M. Hale, Pleas of the Crown 88. Thus, the Court is not convinced that Atwater's is the correct, or even necessarily the better, reading of the common-law history. Pp. 328-332.(ii) A second, and equally serious, problem for Atwater's historical argument is posed by various statutes enacted by Parliament well before this Republic's founding that authorized peace officers (and even private persons) to make warrantless arrests for all sorts of relatively minor offenses unaccompanied by violence, including, among others, nightwalking, unlawful game playing, profane cursing, and negligent carriage driving. Pp. 333-335.(2) An examination of specifically American evidence is to the same effect. Neither the history of the framing era nor subsequent legal development indicates that the Fourth Amendment was originally understood, or has traditionally been read, to embrace Atwater's position. Pp. 336-345.(i) Atwater has cited no particular evidence that those who framed and ratified the Fourth Amendment sought to limit peace officers' warrantless misdemeanor arrest authority to instances of actual breach of the peace, and the Court's review of framing-era documentary320Full Text of Opinion

1971_70-19

MR. JUSTICE WHITE delivered the opinion of the Court.This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment.On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc., which was engaged in the business of selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems. Allegedly, the business was fraudulently Page 404 U. S. 309 conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966.On May 5, 1970, appellees filed a motion to dismiss the indictment"for failure to commence prosecution of the alleged offenses charged therein within such time as to afford [them their] rights to due process of law and to a speedy trial under the Fifth and Sixth Amendments to the Constitution of the United States."No evidence was submitted, but, from the motion itself and the arguments of counsel at the hearing on the motion, it appears that Allied Enterprises had been subject to a Federal Trade Commission cease and desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October, 1967, reporting the results of that newspaper's investigation of practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia describing his office's investigation of these firms and predicting that indictments would soon be forthcoming. Although the statements attributed to the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney's office, Allied delivered certain of its records to that office, and, in an interview there, appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September, 1969, appellees were not informed of the grand jury's concern with them until March, 1970, and the indictment was finally handed down in April. Page 404 U. S. 310Appellees moved to dismiss because the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses." They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the case and presenting it to a grand jury. No specific prejudice was claimed or demonstrated. The District Court judge dismissed the indictment for "lack of speedy prosecution" at the conclusion of the hearing, and remarked that, since the Government must have become aware of the relevant facts in 1967, the defense of the case"is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or, at the very latest, early 1968. [Footnote 1] "Page 404 U. S. 311The United States appealed directly to this Court pursuant to 18 U.S.C. § 3731 (1964 ed., Supp. V). [Footnote 2] We postponed consideration of the question of jurisdiction until the hearing on the merits of the case. [Footnote 3] We now hold that the Court has jurisdiction, and on the merits we reverse the judgment of the District Court.IPrior to its recent amendment, 18 U.S.C. § 3731 (1964 ed., Supp. V) authorized an appeal to this Court Page 404 U. S. 312 by the United States when, in any criminal case, a district court sustained "a motion in bar, when the defendant has not been put in jeopardy." It is plain to us that the appeal of the United States is within the purview of this section. Appellees had not been placed in jeopardy when the District Court rendered its judgment. The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since reindictment would not have been permissible under such a ruling. The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment, but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime, but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United States v. Weller, 401 U. S. 254, 401 U. S. 260 (1971). The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court's oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48(b), as a ground for dismissal. [Footnote 4] Our jurisdiction to hear this appeal has been satisfactorily established. Page 404 U. S. 313IIAppellees do not claim that the Sixth Amendment was violated by the two-month delay between the return of the indictment and its dismissal. Instead, they claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an "accused," an event that occurred in this case only when the appellees were indicted on April 21, 1970.The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." On its face, the protection of the Amendment is activated only when a criminal prosecution has begun, and extends only to those persons who have been "accused" in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. "[T]he essential ingredient is orderly expedition, and not mere speed." Smith v. United States, 360 U. S. 1, 360 U. S. 10 (1959).Our attention is called to nothing in the circumstances surrounding the adoption of the Amendment indicating Page 404 U. S. 314 that it does not mean what it appears to say, [Footnote 5] nor is there more than marginal support for the proposition that, at the time of the adoption of the Amendment, the prevailing rule was that prosecutions would not be permitted if there had been long delay in presenting a charge. [Footnote 6] The framers could hardly have selected less Page 404 U. S. 315 appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. No opinions of this Court intimate support for appellee' thesis, [Footnote 7] and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment's speedy trial provision where only pre-indictment delay was involved. [Footnote 8] Page 404 U. S. 316Legislative effort to implement federal and State speedy trial provisions also plainly reveal the view that thee guarantees are applicable only after a person has Page 404 U. S. 317 been accused of a crime. The Court has pointed out that"[a]t the common law and in the absence of special statutes of limitations the mere failure to find an indictment will not operate to discharge the accused from the offense nor will a nolle prosequi entered by the Government or the failure of the grand jury to indict."United States v. Cadarr, 197 U. S. 475, 197 U. S. 478 (1905). Since it is"doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the Page 404 U. S. 318 heads of citizens, and they have been committed for unreasonable periods, resulting in hardship,"the Court noted that many States"[w]ith a view to preventing such wrong to the citizen . . . [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial"had passed statutes limiting the time within which such trial must occur after charge or indictment. [Footnote 9] Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused. [Footnote 10] The statutes vary greatly in substance, Page 404 U. S. 319 structure, and interpretation, but a common denominator is that"[i]n no event . . . [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this."Note, The Right to a Speedy Trial, 57 Col.L.Rev. 846, 848 (1957).No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48(b), which has the force of law, authorizes dismissal of an indictment, information, or complaint"[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial. . . ."The rule clearly is limited to post-arrest situations. [Footnote 11]Appellees' position is, therefore, at odds with longstanding legislative and judicial constructions of the Page 404 U. S. 320 speedy trial provisions in both national and state constitutions.IIIIt is apparent also that very little support for appellees' position emerges from a consideration of the purposes of the Sixth Amendment's speedy trial provision, a guarantee that this Court has termed"an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself."United States v. Ewell, 383 U. S. 116, 383 U. S. 120 (1966); see also Klopfer v. North Carolina, 386 U. S. 213, 386 U. S. 221-226 (1967); Dickey v. Florida, 398 U. S. 30, 398 U. S. 37-38 (1970). Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, supra; see also Smith v. Hooey, 393 U. S. 374, 393 U. S. 377-378 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment. Page 404 U. S. 321Invocation.of the speedy trial provision thus need not await indictment, information, or other formal charge. [Footnote 12] But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. [Footnote 13] But this Page 404 U. S. 322 possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case.The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United States v. Ewell, supra, at 383 U. S. 122, "the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges." Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they "are made for the repose of society and the protection of those who may [during the limitation] . . . have lost their means of defence." Public Schools v. Walker, 9 Wall. 282, 76 U. S. 288 (1870). These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced. [Footnote 14] As this Page 404 U. S. 323 Court observed in Toussie v. United States, 397 U. S. 112, 397 U. S. 114-115 (1970):"The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity."There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function.Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the Page 404 U. S. 324 indictment, see 404 U. S. infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals, and that event occurred within the statute of limitations. [Footnote 15] Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. [Footnote 16] Cf. Brady v. Maryland, 373 U. S. 83 (1963); Napue v. Illinois, 360 U. S. 264 (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. [Footnote 17] Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay caused detriment to a defendant's case should abort a criminal Page 404 U. S. 325 prosecution. [Footnote 18] To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.IVIn the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, that transformed the appellees into "accused" defendants who are subject to the speedy trial protections of the Sixth Amendment.The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, since the indictment was brought on April 21, 1970, and dismissed on June 8, 1970. Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely Page 404 U. S. 326 on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature.Reversed

U.S. Supreme CourtUnited States v. Marion, 404 U.S. 307 (1971)United States v. MarionNo. 70-19Argued November 8, 1971Decided December 20, 1971404 U.S. 307SyllabusAppellees, claiming that the Government had known of the crimes with which they were charged, the circumstances of the crimes, and appellees' identities for over three years before they were indicted, moved to dismiss on the ground that the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses," and that the delay deprived them of rights to due process of law and a speedy trial as secured by the Fifth and Sixth Amendments. While asserting no specific prejudice, appellees contended that the indictment required memory of many specific acts and conversations occurring several years before and that the delay was due to the prosecutor's negligence or indifference in investigating the case and presenting it to the grand jury. The District Court, after a hearing, granted appellees' motion and dismissed the indictment for "lack of speedy prosecution," having found that the defense was "bound to have been seriously prejudiced" by the three-year delay. The Government took a direct appeal to this Court, which postponed consideration of the question of jurisdiction until the hearing on the merits.Held:1. The motion to dismiss the indictment for lack of a speedy trial was in the nature of a confession and avoidance, and constituted a motion in bar by appellees who had not been placed in jeopardy when the District Court entered its order of dismissal. That order was therefore directly appealable to this Court under former 18 U.S.C. § 3731. Pp. 404 U. S. 311-312.2. The Sixth Amendment's guarantee of a speedy trial is applicable only after a person has been "accused" of a crime, which in this case did not occur until appellees (who had not previously been arrested or otherwise charged) were indicted. Pp. 404 U. S. 313-320.3. The relevant statute of limitations provides a safeguard against possible prejudice resulting from pre-accusation delay, and here appellees were indicted within the applicable limitations period. Pp. 404 U. S. 320-323. Page 404 U. S. 3084. Though the Due Process Clause may provide a basis for dismissing an indictment if the defense can how at trial that prosecutorial delay has prejudiced the right to a fair trial, appellees have not claimed or proved actual prejudice resulting from the delay, and their due process claims are therefore speculative and premature. Pp. 404 U. S. 325-326.Reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART and BLACKMUN JJ., joined. DOUGLAS, J., filed an opinion concurring in the result, in which BRENNAN and MARSHALL, JJ., joined, post, p. 404 U. S. 326.

1976_75-1197

MR. JUSTICE STEWART delivered the opinion of the Court.Under the Social Security Act a married woman whose husband retires or becomes disabled is granted benefits if she has a minor or other dependent child in her care. A divorced Page 429 U. S. 182 woman whose former husband retires or becomes disabled does not receive such benefits. The issue in the present case is whether this difference in the statutory treatment of married and divorced women is permissible under the Fifth Amendment to the United States Constitution. [Footnote 1]ISection 202(b)(1) of the Social Security Act, 49 Stat. 623, as added and amended, 42 U.S.C. § 402(b)(1) (1970 ed. and Supp. V), provides for the payment of "wife's insurance benefits." [Footnote 2] To qualify under this section, a woman must be the Page 429 U. S. 183 wife or "divorce wife" [Footnote 3] of an individual entitled to old-age or disability benefits. Then, assuming that she meets the other statutory requirements, the woman is eligible to receive a monthly payment if she"has attained age 62 or (in the case of a wife) has in her care (individually or jointly with [her husband]) a child entitled to a child's insurance benefit. . . ."42 U.S.C. § 402(b)(1)(B) (emphasis supplied). As the italicized phrase indicates, a woman under 62 who has in her care an entitled child [Footnote 4] must currently be married to the wage earner in order to be eligible to receive benefits. A divorced woman receives monthly payments if she is 62 or over and her ex-husband retires or becomes disabled, but if she is under 62, she receives no benefits even if she has a young or disabled child in her care. [Footnote 5] Page 429 U. S. 184The appellee, Helen De Castro, was divorced from her husband in 1968, after more than 20 years of marriage. She cares for a disabled child, who is eligible for and receives child's insurance benefits under the Act. In May, 1971, her former husband applied for and later was granted old-age insurance benefits. Mrs. De Castro applied for wife's insurance benefits shortly thereafter. At the time of her application, she was 56 years old. Her application was denied by the Secretary of Health, Education, and Welfare because no wife's benefits are payable to a divorced wife under 62 years of age.Mrs. De Castro then filed suit in the United States District Court for the Northern District of Illinois, seeking judicial review of the Secretary's decision. Her complaint alleged that § 202(b)(1)(b) of the Social Security Act "operates to arbitrarily discriminate against divorced wives," and prayed for an order directing the Secretary to pay benefits to her, a declaration that § 202(b)(1)(b) is unconstitutional, and an injunction against that section's application.A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2282. The court considered the parties' cross-motions for summary judgment and granted the relief prayed for in the complaint, holding that the wife's benefits provision "invidiously discriminates against divorced wives . . . in violation of the Fifth Amendment." De Castro v. Weinberger, 403 F. Supp. 23, 30. Central to the court's ruling was its determination that"there is no rational basis for concluding that a married wife having a dependent child in her care has a greater economic need than a divorced wife caring for such a child."Id. at 28. The Secretary appealed directly to this Court under 28 U.S.C. § 1252, and we noted probable jurisdiction, 425 U.S. 957. Page 429 U. S. 185IIThe basic principle that must govern an assessment of any constitutional challenge to a law providing for governmental payments of monetary benefits is well established. Governmental decisions to spend money to improve the general public welfare in one way and not another are "not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment." Helvering v. Davis, 301 U. S. 619, 301 U. S. 640. In enacting legislation of this kind, a government does not deny equal protection"merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,' it does not offend the Constitution simply because the classification 'is not made with mathematical nicety or because in practice it results in some inequality.'"Dandridge v. Williams, 397 U. S. 471, 397 U. S. 485.To be sure, the standard by which legislation such as this must be judged "is not a toothless one," Mathews v. Lucas, 427 U. S. 495, 427 U. S. 510. But the challenged statute is entitled to a strong presumption of constitutionality."So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket."Jefferson v. Hackney, 406 U. S. 535, 406 U. S. 546. It is with this principle in mind that we consider the specific constitutional issue presented by this litigation.The old-age and disability insurance aspects of the Social Security system do not purport to be general public assistance laws that simply pay money to those who need it most. That was not the predominant purpose of these benefit provisions when they were enacted or when they were amended. Rather, the primary objective was to provide workers and Page 429 U. S. 186 their families with basic protection against hardships created by the loss of earnings due to illness or old age. [Footnote 6]The wife's insurance benefit at issue here is consistent with this overriding legislative aim: it enables a married woman already burdened with dependent children to meet the additional need created when her husband reaches old age or becomes disabled. Accordingly, the District Court's observation that many divorced women receive inadequate Page 429 U. S. 187 child support payment, while undoubtedly true, is hardly in point. The same can be said of the District Court's statement that"there is no rational basis for concluding that a married wife having a dependent children her care has a greater economic need than a divorced wife caring for such a child."For whatever relevance these observations might have in a case involving a constitutional attack on a statute that gave monetary benefits to women based on their general overall need, that is not this case.Section 202(b)(1)(B) of the Act addresses the particular consequences for his family of a wage earner's old age or disability. Congress could rationally have decided that the resultant loss of family income, the extra expense that often attends illness and old age, and the consequent disruption in the family's economic wellbeing that may occur when the husband stops working justify monthly payments to a wife who together with her husband must still care for a dependent child.Indeed, Congress took note of exactly these kinds of factors when it amended the Social Security Act in 1958. Between 1950 and 1958, wives under retirement age with dependent children received benefits only when their husbands became entitled to old-age insurance payments. Social Security Act Amendments of 1950, § 101(a), 64 Stat. 482. Congress then amended the Act to provide the same benefits when the wage earner becomes disabled. [Footnote 7] Social Security Page 429 U. S. 188 Amendments of 1958, § 205(b)(1), 72 Stat. 1021. Both the House and Senate Committee reports accompanying the proposed legislation explained that the purpose of the monthly payments was to give "recognition to the problems confronting families whose breadwinners" stop work. The focus was specifically on "adequate protection for [the husband's] family," and the reports mentioned the high medical expenses often associated with disability and the possibility that the wife might have to forgo work in order to care for her disabled husband. H.R.Rep. No. 2288, 85th Cong., 2d Sess., 12-13 (1958); S.Rep. No. 2388, 85th Cong., 2d Sess., 10-11 (1958). In view of the legislative purpose, it is hardly surprising that the congressional judgment evidently was a different one with respect to divorced women. Divorce, by its nature, works a drastic change in the economic and personal relationship between a husband and wife. Ordinarily it means that they will go their separate ways. Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married. The problems that a divorced wife may encounter when her former husband becomes old or disabled may well differ in kind and degree from those that a woman married to a retired or disabled husband must face. For instance, a divorced wife need not forgo work in order to stay at home to care for her disabled husband. She may not feel the pinch of the extra expenses accompanying her former husband's old age or disability. Page 429 U. S. 189 In short, divorced couples typically live separate lives. It was not irrational for Congress to recognize this basic fact in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62.This is not to say that a husband's old age or disability may never affect his divorced wife. Many women receive alimony or child support after divorce that their former husbands might not be able to pay when they stop work. But even for this group -- which does not include the appellee in the present case -- Congress was not constitutionally obligated to use the Social Security Act to subsidize support payments. It could rationally decide that the problems created for divorced women remained less pressing than those faced by women who continue to live with their husbands.In any event, the constitutional question"is not whether a statutory provision precisely filters out those, and only those, who are in the factual position which generated the congressional concern reflected in the statute."Weinberger v. Salfi, 422 U. S. 749, 422 U. S. 777. We conclude, accordingly, that the statutory classifications involved in this case are not of such an order as to infringe upon the Due Process Clause of the Fifth Amendment.The judgment is reversed.It is so ordered

U.S. Supreme CourtMathews v. De Castro, 429 U.S. 181 (1976)Mathews v. De CastroNo. 75-1197Argued November 8, 1976Decided December 13, 1976429 U.S. 181SyllabusThe statutory classification of § 202(b)(1) of the Social Security Act whereby a married woman under 62 whose husband retires or becomes disabled is granted monthly benefits under the Act if she has a minor or other dependent child in her care, but a divorced woman under 62 whose ex-husband retires or becomes disabled does not receive such benefits, held not to violate the Due Process Clause of the Fifth Amendment. Such classification, by enabling a married woman already burdened with dependent children to meet the addition need created when her husband reaches old age or becomes disabled, comports with the Act's primary objective of providing workers and their families with basic protection against hardships created by the loss of earnings due to illness or old age; and it was not irrational for Congress, in deciding to defer monthly payments to divorced wives of retired or disabled wage earners until they reach the age of 62, to recognize the basic fact that divorced couples typically live separate lives. Pp. 429 U. S. 185-189.403 F. Supp. 23, reversed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., concurred in the judgment.